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Home My WebLink AboutR37-Economic Development Agency ECONOMIC DEVELOPMENT AGENCY ORIGINAL OF THE CITY OF SAN BERNARDINO DATE: July 17, 2006 SUBJECT: Disposition and Development Agreement by and between the Agency and Century Crowell Communities, LP (Agency Property formerly known as the "Bice" Property in the V erdemont Area) FROM: Maggie Pacheco Executive Director ....________________________n__.________...__._._____________________u_________________________________________---------------------.--------------------------------- Svnoosis of Previous Commission/CounciVCommittee Action(s): On April 4, 2006, Redevelopment Committee Members Estrada, Johnson and McGinnis unanimously voted to recommend that the Community Development Commission consider this action for approval. --------------------------------------------------------------------------------------------------------------------------------------- Recommended Motion(s): Open/Close Joint Public Hearing (Mavor and Common ConnciJ) A: Resolution of the Mayor and Common Council of the City of San Bernardino approving the 2006 Disposition and Development Agreement ("DDA") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and Century Crowell Communities, LP, a California limited partnership ("Developer") related to approximately 79 acres of Agency property located north of Little League Drive, east ofI-215 Freeway ("Property") (Communitv Develooment Commission) B: Resolution of the Community Development Commission of the City of San Bernardino (I) approving the 2006 Disposition and Development Agreement ("DDA") by and between the Redevelopment Agency of the City of San Bernardino ("Agency") and Century Crowell Communities, LP, a California limited partnership ("Developer") and authorizing the Executive Director of the Agency to execute said DDA relating to the sale and development of Agency property located north of Little League Drive, east of 1-215 Freeway - approximately 79 acres in the City of San Bernardino ("Property") and (2) making certain findings thereto related to the development of the Property and adopting a Mitigated Negative Declaration related to said DDA ________________d______.____________.__________________----------------------------------------------------------------~--------------------------------- N/A Ward(s): (909) 663-1044 5 Contact Person(s): Maggie Pacheco Phone: Project Area(s): Supporting Data Attached: 0 Staff Report 0 Resolution(s) 0 Agreement(s)/Contract(s) 0 Map(s) 0 Letters Budget Authority: N/A N/A FUNDING REQUIREMENTS: Amount: $ o Source: ~w-G~~J~/~'t( M ggi Pacheco, Executive Director Barbara Lindseth, Admin. Services Director ..comr;;i~~ioDico~-;;ciCNoies;.....j(pri5"r,.,.....dtYYO.:J-(7)m'f-.-c;oCiJ-ZJeJiij::3;pr.-.-.....--.-...-.----.... I SIGNATURE: __n__________._______~__________~~___________~__________--------------------------------------------.--------------~-------------.------ P:\Agendas\Comm Dev Convnission\CDC 2006\07-24-06 Century Crowell Communilies, LP (Bice Property) Final SR.doc COMMISSION MEETING AGENDA Meeting Date: 07/24/2006 Agenda Item Number: R~} '1 ECONOMIC DEVELOPMENT AGENCY STAFF REPORT ._________d_..__________________________________________-------------------------.-------------------------------------------- DISPOSITION AND DEVELOPMENT AGREEMENT BY AND BETWEEN THE AGENCY AND CENTURY CROWELL COMMUNITIES, LP (AGENCY PROPERTY FORMERLY KNOWN AS THE "BICE" PROPERTY IN THE VERDEMONT AREA) BACKGROUND: On May 18, 2004, Century Crowell Communities, L.P. (the "Developer"), presented a proposal to the Redevelopment Committee (the "Committee") to purchase and develop 100 acres of property owned by the Agency in the Verdemont Area commonly known as the "Bice Property" (the "Property"). This particular property is located north of Little League Drive and is adjacent to the east side of the 1-215 Freeway. On May 18, 2004, the Committee considered and approved the Memorandum of Understanding ("2004 MOU"), prepared by Staff and Agency Special Counsel in collaboration with the Developer and its Counsel. Subsequently, the Community Development Commission of the City of San Bernardino (the "Commission") accepted and approved the Committee's recommendation and authorized the Executive Director of the Agency to execute the 2004 MOU for an undefined period of time, subject to termination by either party, during which time the Agency and the Developer were to reach an agreement as to the form and scope of development of the Property into a quality residential neighborhood. Execution of the 2004 MOU was intended to lead to the successful approval and execution of a Disposition and Development Agreement (DDA) by and between the Agency and the Developer formalizing the disposition of the Property. The 2004 MOU was set to expire on December 31, 2005, based upon a letter agreement entered into by the former Executive Director and the Developer. On December 19, 2005, because of the extremely complex nature of the development restraints imposed upon the Property and its history of failed development attempts, as well as the examination of numerous alternatives in the arrangement, size and aspect of the homes, the need for open public space, the alignment and funding of the streets and environmental issues, the Commission voted to extend the 2004 MOU by six (6) rnonths until June 30, 2006, provided that a draft DDA was presented by the Developer to the Agency no later than March 31, 2006. The Developer submitted the draft DDA to Staff and Agency Special Counsel within the required time frame and the parties have reached an agreement as to the following specific terms of the sale of the Property by the Agency to the Developer. The salient points of the 2004 MOU are outlined in the footnote below. (I) (I) (1) The Developer will purchase approximately 100 acres of the Agency-owned Property located on Frontage Road and Little League Drive for $5,250,000 or the appraised fair market value. Prior to the execution of the DDA, the Agency shall retain, at its sole cost, the services of an independent MAl Appraiser to verify that the Purchase Price for the Property is not less than fair market value. (2) The Property to be sold to the Developer for the purpose of constructing approximately 244 housing units at a minimum lot size of 10,800 square feet, together with all on- and off-site improvements. (3) The Property will be sold to the Developer "AS-IS", subject to all faults and conditions; and the Developer will be solely responsible for satisfying itself that the Property is suitable for the development of a residential single-family housing project. (4) In addition to the Purchase Price, the Developer will pay the Agency a supplementary amount equal to 20% of the profits ("Profit Participation") from the development of the Property, as per Section III. 4. of the 2004 MOD. (5) The Developer will pay to the Agency, in addition to the Purchase Price and the Profit Participation for the Property, $10,000 per housing unit fee ("In-Lieu School Fee") for development of 245 units on the Property (this equates to approximately 245 units x $ I 0,000 - $2,450,000 to be paid to the Agency). The Developer will be required to pay directly to the School District all necessary school fees for those housing units in excess of the 245 units. ------------------------------------------------------------------------------------------------------------------------------------------------ P:\Agcndas\Conun Dev Conunission\CDC 2006\07-24-06 Century Crowell Communities, LP (8ice Property) Final SR.doc COMMISSION MEETING AGENDA Meeting Date: 07/24/2006 Agenda Item Number: 4 Economic Development Agency Staff Report Century Crowell Communities, LP - Bice Property Page 2 CURRENT ISSUES: Since the preparation of the draft DDA, discussion has ensued between Agency Staff and the Developer regarding the Agency's desire to retain 20 to 30 acres ("Park Site") ofthe Property for the purpose of utilizing or conveying a 20 to 30 acre Park Site to the City for development into a Community Park. Additional acreage may need to be acquired by the Agency from the San Bernardino County Flood Control District. The request for additional park land originated from the City Manager's office as there is very little land remaining in the Verdemont Area to accommodate a Community Park. Moreover, discussions are presently underway for exploring the possibility of selling the current Verdemont park land (Blast Soccer Fields and Guhin Park) south of the Property to enlarge the proposed commercial development, Verdemont Heights Towne Center, being proposed by Hopkins Development Company; therefore, this park and soccer fields would have to be replaced by the Park Site. In order to make the housing project cost effective and economical, and maximize the number of homes that can be realized from the remainder of the Property, the Developer will need to request from the City, a General Plan Amendment and to rezone the remaining Property, consisting of approximately 79 acres, from RL to RS or a comparable zoning. The 20 to 30 acre Park Site will also need to be rezoned from RL to public recreational purposes with the appropriate zoning designation. The requested zone change will be consistent and compatible to the land contiguous and north of the Property, which is currently zoned for 7,200 square foot lots. Thus, it is proposed that the Property be sold to the Developer for the purpose of constructing approximately 279 housing units at a minimum lot size of 7,200 square feet, with an average lot size of 8,370 square feet, together with all on-site and off-site improvements, a gated and secured community governed by a Homeowner's Association with conditions, covenants and restrictions. A market analysis commissioned by the Developer and completed by Market Profiles regarding the site states that a favorable market exists in the Verdemont Area for 7,200 square foot lots with single-family detached homes.(2) The market analysis also recommends, that the product type would range in size from 1,900 to 3,100 square feet. It should be noted that the DDA describes a project that may encompass more acreage (approximately 82 acres) than the 79 acres to be sold by the Agency to the Developer. The reason for this difference is because the Developer may need to acquire additional acreage (approximately 3 acres) from the San Bernardino County Flood Control District ("Flood Control") in order to construct the detention basin and flood channel improvements. The site plan also shows that in order to construct an approximately 30-acre Community Park, additional land would have to be acquired by the Agency from the Flood Control (approximately 9 acres). However, ifit is determined that the detention basin and improvements to the flood control channel do not prove to be feasible, then alternate flood irnprovements would have to be identified and planned, and thus the additional acreage would not need to be acquired by the Agency or Developer from the San Bernardino County Flood Control District. (2) It should be noted that, a Settlement Agreement was entered into on October 11, 1989, between the City and a predecessor owner of the Property, known at that time as A W Associates No.1. The Settlement Agreement only applied to Tentative Tract 12756, which now will become the Park Site under the new development proposal. The project, as originally contemplated by A W Associates No.1, and its predecessor Cable Lake & Associates, dealt with the development of a 4,000 square feet lot subdivision consisting of 114 lots at the southeastern portion of the Property adjacent to the pet cemetery. A W Associates No.1, as the party to the Settlement Agreement, no longer is in existence as was recently confirmed with the attorney who represented A W Associates No. I in the negotiation of the Settlement Agreement in 1989. ---------------------------------------------------------------------------------------------------------------------- P:\Agendas\Comrn Dev Commission\CDC 2006\07-24-06 CcntW')' Crowell Convnunities. LP (Dice Property) Final SR.doc COMMISSION MEETING AGENDA Meeting Date: 07/24/2006 Agenda Item Number: ~ Economic Development Agency Staff Report Century Crowell Communities, LP - Bice Property Page 3 Accordingly, the salient Points of the DDA include, but are not limited to: 1. Sales price is a minimum of $4.1 million for the approximate 79 acres or fair market value which ever is greater. 2. The Developer will pay the Agency a supplementary amount equal to 20% of the profits ("Profit Participation") from the development of the Property, as per Section IlIA. of the MOU. 3. The Developer will pay to the Agency, in addition to the Purchase Price and the Profit Participation for the Property, $10,000 per housing unit fee ("in-Lieu School Fee") for development of 245 units on the Property (this equates to approximately 245 units x $10,000 = $2,450,000 to be paid to the Agency). The Developer will be required to pay directly to the School District all necessary school fees for those housing units in excess of the 245 units. 4. Escrow will close within 20 months after the conclusion of the due diligence period. 5. The Developer will be responsible for grading of the Property and the Park Site(2). Additionally, the Developer will be responsible for the cost of preparing and installing all circulation improvements, as required by the City Municipal Code and the Uniform Fire Code. 6. As a large portion, of the regional public improvements and infrastructure improvements will benefit existing development and subsequent developments in the Verdemont Area, the Developer may need to request that the City create a City Community Facilities District (CFD) to reimburse the Developer for that portion of the public infrastructure. (See Exhibit "A" for further CFD Details). Furthermore, the Developer will be responsible for the preparation of plans and undertaking the actual development of any detention basin and flood control improvements, sewers, water, etc., and any and all improvements that are required by the Development Services Department as part of the development review process. In addition to the funding to be provided through the CFD Bonds, the Developer will seek any reimbursements from the City under a Reimbursement Agreement for certain costs of those regional or area benefit public irnprovements that are in excess of the amounts required for development of the 279 homes through the CFD special tax. Said reimbursements would be paid to the Developer via fees paid to the City as a result of future development projects. Hence, the Developer is requesting that the sale of the Property and the closing of the escrow is contingent upon the following: 1) CFD formation; 2) City Reimbursement Agreement; 3) successful negotiations with the County of San Bernardino Flood Control District to enable the excavation of the detention basin and channelization, if necessary; and 4) that the Water Department has undertaken and completed the necessary system upgrades and improvements to assure that an adequate water supply will be available to the Property as of June 2007, pursuant to a "will-serve letter". These four (4) items will be made conditions to any pre-closing on the Property for the Developer. If the Developer is not successful in obtaining all of these items, it is highly likely the Developer will not proceed with the purchase of the Property from the Agency. ~------------------------------------------------------------------------ P:\Agendas\Comm Dev Commi$sion\CDC 2006\07-24-06 Century Crowell Communities, L.P (Bice Prope:rty) Final SR.OOc COMMISSION MEETING AGENDA Meeting Date: 07/24/2006 Agenda Item Number: m Economic Development Agency Staff Report Century Crowell Communities, LP - Bice Property Page 4 The Developer has already paid to the Agency, a check in the amount of $25,000, which is non-refundable under aU circumstances. This deposit is intended to compensate the Agency for removing the Property from consideration by other prospective purchasers and to compensate the Agency for any expenses incurred during the negotiation period of the 2004 MOU and the DDA. Upon the execution of the DDA by the parties, the Developer will remit the sum of $50,000 as an initial deposit; and upon completion of the due diligence period, the Developer will deposit an additional amount of $100,000 to the Agency, of which both deposits will be applied to the Purchase Price for the Property upon the close of escrow. ENVIRONMENTAL IMPACT: The Initial Study (IS) (Attached) was prepared for the proposed Project and distributed for conunent 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 irnpacts; thus, it is proposed that a Mitigated Negative Declaration be prepared for the Project. The IS was circulated on May 9, 2006 and 7 conunents were received of which 3 warranted response. The Environmental Consultant has prepared the Mitigation Monitoring and Reporting Program (Monitoring Program) (Attached) 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, geology/soils and traffic/circulation, the City's Development Services Department will review, inspect and monitor the Developer's compliance with said Monitoring Program. FISCAL IMPACT: As summarized under Background/Current Issue above. RECOMMENDATION: That the Mayor and Common Council and the Conununity Development Commission adopt the attached Resolutions. P:\Agendas\CollTll Oev Corrmisiion\COC 2006\01-24-06 CentW)' Crowell Com1llUlities. LP (Dice Ptupcrty) Final SR..dot COMMISSION MEETING AGENDA Meeting Date: 07/24/2006 Agenda Item Number: ..8..S- ----------------------------------- EXHIBIT "A" a) It is estimated that the total costs of development improvements, including all local and regional infrastructure improvements, will be in excess of $100 million (the $100 million includes an estimated $5 million in development impact fees to be paid to the City) with a bonding limitation in a principal amount not to exceed $15 million, with a maximum bond maturity not to exceed 30 years all as shall be finally determined by the City. b) Community Facilities District (CFD) financings have undergone extensive legislative revision to remedy the conditions that caused bond defaults more than a decade ago. CFD financings presently work the way they were originally intended; that is, to support development in regions where large infrastructure was necessary to expand public facilities and provide safe conditions within the municipality. c) The proposed CFD will assist in the financing of flood control improvements necessary to protect lives and property and City infrastructure. Additionally, arterial roads and regional water system improvements are to be partially financed through the CFD. d) The maximum tax on each home when combined with the 1 % general property tax and other applicable general property tax overrides and assessments will not exceed a total of a 2% property tax for all general property taxes, assessments, ad valorem taxes for general obligation bonds and the CFD special tax. e) The CFD Bonds would only be issued for reimbursement purposes; that is, the Developer will be required to utilize its own funds to install and construct those components of the infrastructure for which the CFD Bond proceeds would be used to reimburse the Developer after the City Engineer has accepted the work. All public bidding and prevailing wage requirements will need to be met for the installation and construction of this infrastructure for the costs of such to be eligible for CFD reimbursement. f) All loan to value ratios for the value of the finished lots shall be determined based upon values determined by an independent MAl appraiser whose appraisal is in compliance with general California Debt and Investment Advisory Commission and the Uniform Standards of Professional Appraisal Practice guidelines. Such loan to value ratios shall be established based upon a date of value which is within a reasonable time (i.e., 90 days) prior to the time the CFD Bonds are issued. Raw, undeveloped land would never be the security for the CFD Bonds as was the situation in the defunct CFD No. 995. g) The City and not the Developer will select the special tax consultant and the other members of the CFD Bond financing team; this will assure the City and the public that the City's best interests are served. P:\Aacudas\Aaenda Auacluncuts\Exhibits\2006\07-24-06 Century Crowell (Bice Property) Exhibit A.doc 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 (DDA) between Century Crowell Communities, LP and the Redevelopment Agency of the City of San Bernardino (Agency), for the sale of land for the ultimate development of 279 single family lots on 82 acres, 30.5 acres of park lands to be developed by the City of San Bernardino, and flood control improvements on 103.5 acres. The Agency will convey 79 acres of a 100 acre holding. The balance of the project will be located on lands currently controlled by the San Bernardino County Flood Control District. Altogether, the proposed project will consist of216 acres. PROJECT DESCRlPTIONILOCA TION: The proposed project site is located on the east side ofInterstate 215, north of Little League Drive. The site consists of several irregular parcels totaling 216 acres. The Redevelopment Agency will enter into agreements, including a Disposition and Development Agreement with Century Crowell Communities, LP, who will subdivide 82 acres of the total acreage into 279 single family lots as well as lettered lots for streets, on 82 acres, consisting of 79 acres to be acquired from the Agency and 3 acres anticipated for acquisition from the San Bernardino County Flood Control District. In addition, the project includes 30.5 acres for public parks. Century Crowell will also mass grade the park lands, and the Agency will convey them to the City, which will be responsible for installation of park improvements. In order to protect and improve the Cable Creek channel, Century Crowell will also complete channel and debris basin improvements on approximately 103.5 acres ofland to be retained under the ownership of the San Bernardino County Flood Control District. The property is also known as Assessor's Parcel Numbers: 261-111-01, -21, -23, -25, -29, -30, -33, -35, -37, -40; 261-121-01, -02, -03, -08, -09, -13, -14; 261-131-04; 261-171-06; 261-451-01 through -48; and 261-461-01 through -66. This Initial Study addresses all known issues associated with the DDA. When a Tentative Tract Map is prepared, additional environmental review will be required by the City. DATE: May 8, 2006 PREP ARED 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 3015San Bernardino, CA 92401 (909) 663-1044 IS 1 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 (EIR) must be prepared. 1. Project Title: Disposition and Development Agreement between Century Crowell Communities LP and the Redevelopment Agency of the City of San Bernardino for the sale of land and ultimate development of 279 single family lots on 82 acres, 30.5 acres of park land to be improved by the City of San Bernardino, and 103.5 acres of flood control facility improvements within Cable Creek. 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: Colin Strange 909-663-1044 4. Project Location (AddresslNearest cross-streets): East side of Interstate 215, north of Little League Drive. Assessor's Parcel Numbers: 261-111-01, -21, -23, -25, -29, -30, -33, -35, -37, -40; 261-121-01, -02, -03, -08, -09, -13, -14; 261-131-04; 261-171-06; 261-451-01 through -48; and 261-461-01 through -66. 5. Project Sponsor: Address: Redevelopment Agency of the City of San Bernardino 201 North E Street, Suite 301 San Bernardino, CA 92401 6. General Plan Designation: Low Density Residential and Low Density Residential 3.5. 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 implemeutation. Attach additional sheets, if necessary): The project consists of a Disposition and Development Agreement (DDA) between Century Crowell Communities LP, and the Redevelopment Agency of the City of San Bernardino (Agency) to convey 79 acres to Century Crowell Communities LP. Century Crowell will secure an additional 12 acres owned by the San Bernardino County Flood Control District, 3 acres of which will be used for the residential component of the project, and 9 acres of which will be used for the development of the park lands. Ultimately, the project will result in approximately 279 single family lots on 82 acres, as well as lots for streets, and 30.5 acres of park lands. Century Crowell will be responsible for mass grading of the 30.5 acres of park land, and the Agency will convey the mass graded park land to the City for development of the park. The City will subsequently improve the park lands. In addition, to secure the property against flooding from Cable Creek, immediately adjacent to the east, Century Crowell will improve 103.5 acres of the Cable Creek channel, to IS 2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY .i include bank improvements and a detention basin. No improvement plans for these facilities are available at the time of this writing. Altogether, the ultimate development will impact a total of 216" acres. No General Plan Amendment, Change of Zone or Tentative Tract Map application has been submitted at this time. Century Crowell Communities LP will submit these applications to the City of San Bernardino subsequent to approval of the DDA, which will require review and approval by the City. Project descriptions indicate that the project is likely to be developed in phases. The Redevelopment Agency is the Lead Agency in preparation of this Initial Study. This Initial Study has been prepared based on information and plans available at this time. The City of San Bernardino will be the Lead Agency responsible for review of the Tentative Tract Map, and improvement of the 30.5 acres of park land. The City will determine what additional review is required under CEQA. 8. Surrounding Land Uses and Setting: The property is irregular in shape and orientation, and is bounded by Interstate 215 and Frontage Road rights of way on its south; vacant lands on its west and north; vacant lands and Cable Creek on its east and southeast. . 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 Regional Water Quality Control Board US Army Corps of Engineers US Fish and Wildlife Service California Department of Fish and Game County of San Bernardino Department of Public Works-Flood Control: Approval of Sale/Transfer of Land; Permits for Cable Creek Flood Control Improvements '. IS 3 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. D Aesthetics D Agriculture Resources ~ Air Quality ~ Biological Resources ~ Cultural Resources D Geology / Soils D Hazards & Hazardous ~ Hydrology / Water Quality D Land Use / Planning Materials D Noise D Population / Housing D Mineral Resources D Recreation ~ Transportation / Traffic D Public Services ~ Mandatory Findings of D Utilities / Service Systems Significance On the basis of this Initial Study, the City of San Bernardino Environmental Review Committee finds: D I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. [gJ 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. D I find that the proposed project MA Y have a significant effect on the environment, and an ENVIRONMENTAL IMP ACT REPORT is required. D 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. D 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 pursu t to that EIR or NEGATIVE DECLARATION, including revisions or mitigation easur hat e 0 th proposed project, nothing further is required. 5/9/06 Date Nicole Sauviat Criste Printed Name For IS 4 ,.-~ ~ ~ TERRA NOVA @ Planning & Research. Inc. SITE LOCATION De,'ore Road 1-215 Freeway 279-Lot Single Family Residential Development (lntludlal Apc,' .". ,ntJterC) ud Coun'y FMd Dbtrid prope~,) Retained by Redevelopment Agen.)' for Futnre Park Development (lndudlnC A_ .W.... P"ptl1y ...d c...~, floed 0;.11.... p..........,.1 Unle League Drive City of San Bernardino Figure 1 - Project Location Map 4A; [] 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 I. AESTHETICS - Would the project: a) Have a substantial adverse effect on a scenic 0 0 ~ 0 vista as identified in the City's General Plan? b) Substantially damage scenic resources, 0 0 0 ~ including but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual 0 0 ~ 0 character of quality of the site and its surroundings? d) Create a new source of substantial light or glare 0 0 ~ 0 which would adversely affect day or nighttime view in the area? e) Other: 0 0 0 ~ Discussion: The proposed DDA will not, in and of itself, have any impact on aesthetics, light or glare. The ultimate development of 279 single family homes will result in one and two story construction on the property, as well as 30.5 acres of park land, and 103.5 acres of flood control improvements to Cable Creek. The project site is relatively flat, and occurs at the base of an alluvial fan which extends northeasterly from the project site. Lands to the east and north are at higher elevations than the proposed project site. Scattered residential development occurs to the east and northeast of the site. The foothills of the San Bernardino Mountains occur to the north and east of the project site, within 0.25 to one mile. Due to its relatively flat topography, and its occurrence at the relative low-point in the area, the development of the site will have little impact on viewsheds or vistas in the area. The project's location immediately north of the Interstate 215 right of way has the potential to negatively impact the viewsheds of homes within the project site. However, the project perimeter will be screened from view of this right of way by a perimeter wall, which will limit the potential visual impacts associated with the Interstate to less than significant levels. The parks and flood control improvements proposed will have negligible impacts on aesthetics, insofar as the lack of structures in these areas of the site will limit the perceived change from the existing natural condition. There are no significant trees, rock outcroppings or structures on the project site. IS 5 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Development of 279 lots will result in lighting from landscape lighting, street lights, homes and light generated by vehicles. The project will be required to conform to the City's residential lighting standards, which limit the amount of light which can be installed on single family homes. The proposed park may include lighting. Should lighting be proposed, it will be reviewed for conformance with the City's lighting standards. Further, the orientation of the park, at the southeast corner of the site and away from the residential land uses, will limit the potential impacts associated with lighting at this location. Impacts associated with light and glare are expected to be less than significant. ) IS 6 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 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 PotentiaIly Significant Less Than No Significant With Significant Impact Impact Mitigation Impact Incorporation 0 0 0 ~ II. AGRICULTURE RESOURCES: b) Other: o o o ~ Discussion: Neither the proposed DDA nor the development of 279 single family homes, 30.5 acres of park land, or flood control improvements will have any impact on agricultural resources. All lands proposed for development are designated for urban or public land uses in the General Plan, and are not in agriculture. There are no Williamson Act contracts in effect on project lands. There are no agricultural lands in the vicinity of the project site, nor are any lands designated for agriculture in the area. IS 7 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than PotentiaIly 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 0 0 0 [g] applicable air quality plan? (South Coast Air Basin) b) Violate any air quality standard or contribute 0 [g] 0 0 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 0 0 [g] 0 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 0 0 0 [g] pollutant concentrations? e) Create objectionable odors affecting a 0 0 0 [g] substantial number of people based on the information contained in Project Description Form? f) Other: 0 0 0 [g] Discussion: The proposed DDA will not, in and of itself, have any impact on air quality. Development of 279 single family homes, 30.5 acres of park land, and flood control improvements 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 expected to be consistent with the air quality management plans in place for the region. IS 8 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Construction Impacts The development of the site will include mass grading, which 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. It is not known whether grading of the site will result in a need for import or export of dirt to or from the site. Based on typical construction projects in the area, an estimate of grading equipment required has been developed. Once project grading plans have been completed, a more accurate representation of air quality impacts will be developed. Table 1 Grading Equipment Emissions - Diesel powered (pounds per day) # # hrs/ Equipment Pieces day CO ROC NOx SOx* PM,. Tracked Tractor 2 8 1.29 2.90 23.24 2.24 1.06 Scraper I 8 29.62 3.64 24.59 3.68 1.08 Wheeled Loader I 4 5.76 0.68 4.12 0.73 0.15 Motor Grader 2 8 29.96 3.52 22.00 1.38 0.90 Miscellaneous 1 8 30.62 3.60 22.48 1.14 0.92 Total: 97.25 14.3 96.43 9.17 4.11 SCAQMD Thresholds of Significance 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. Based on this analysis, the development of the project site would not exceed SCAQMD thresholds of significance during the grading and site preparation process. Impacts are therefore expected to be less than significant. The project site can be subject to significant winds, which can transport dust, including particulate matter of 10 microns or less (PMI0), The following Table illustrates the potential fugitive dust which could be generated at the project site during mass grading operations. Table 2 Calculations of Fugitive Dust Potential Total Acres to be Factor Total Potential Dust Disturbed at Buildout* (Ibs./day/acre) Generation (Ibs./day) 216 26.4 5,702.4 Source: Table A9-9, "CEQA Air Quality Handbook," prepared by South Coast Air Quality Management Distric~ April 1993. IS 9 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 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 development of 279 single family homes has the potential to generate 2,670 average daily tripsl. In addition to the homes, the park will also generate trifs, and therefore associated air emissions. The park can be expected to generate 370 trips on a Saturday. Therefore, the total trips which could occur from the project site would be 3,040 trips per day. Although the park emissions will be periodic, insofar as the park will experience most of its activities on weekend days, this analysis assumes a worst case scenario, and analyzes the total emissions of both uses. On this basis, the following Table illustrates the anticipated daily emissions associated with project buildout. Pollutant Pounds SCAQMD Daily Threshold Table 3 Moving Exhaust Emission Projections at Project Buildout (pounds per day) Ave. Trip Length (miles) 10 ROG 42.0 Total Total No. Vehicle TripslDay NOX 41.4 SOX 0.3 miles/day 30,400 PMlO 3.5 3,040 CO 389.7 x = 550.0 100.0 75.0 150.0 150.0 URBEBMIS Version 2.2 Scenario Year 2006 - Mndel Years 1965 to 2006 Pollutant - Vehicle CO NOX 0.013925 0.001489 RaG SOX 0.001497 0.000009 PM10 0.000114 As demonstrated in the Table, buildout of the proposed project will not exceed SCAQMD thresholds of significance. Impacts associated with long term operation of the project will have less than significant impacts on air quality. 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 "Trip Generation, ih Edition," prepared by the Institute of Transportation Engineers, for single family detached homes. 2 Ibid. Category 412, County Parks (trip generation rate for a Saturday not provided for category 411, City Park, so the County Park generation rate was used.). IS 10 ,>< ) 1. 2. 3. 4. 5. 6. 7. REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY No more than an area equivalent to 10 acres shall be actively graded in anyone day. Portions ofthe 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. All trucks leaving the site shall be washed offto reduce fugitive dust being tracked onto local roadways. Any portion of the site to be graded shall be pre-watered to a depth of three feet prior to the onset of grading activities. Any area which remains undeveloped for a period of more than 30 days shall be stabilized using either chemical stabilizers or hydroseed on the affected portion of the site. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction-related dirt on approach routes to the site. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IS II - -"",", REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than PotentiaIly 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 0 [gJ 0 0 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 ofFish and Game or US Fish and Wildlife Service? b) Have a substantial adverse effect on any 0 [gJ 0 0 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 0 0 0 [gJ 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 0 0 0 [gJ 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 0 [gJ 0 0 Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? b) Other: 0 0 0 [gJ Discussion: The proposed DDA will not, in and of itself, have any impact on biological resources. The development of 279 homes, 30.5 acres of park land, or flood control improvements to be constructed on the site, however, have the potential to impact biological resources. A biological survey was completed IS 12 ,,- REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY for the project site, including the flood control property]. The survey included trapping studies for the San Bernardino Kangaroo Rat in 2003, 2004 and 2005. Focused surveys were also conducted in 2005 for sensitive plants, and coastal California gnatcatcher. The survey found that the site has been partially disturbed by dumping, off road vehicle use, and bee keeping. The survey of the site included the identification of three plant communities: Riversidian alluvial fan sage scrub, California annual grassland, and Riversidian sage scrub. Riversidian alluvial fan sage scrub is considered a sensitive plant community, and the potential impacts associated with the proposed project could be significant without the implementation of mitigation measures. The site, including the Cable Creek portion of the project, contains 127.5 acres of such habitat. A total of eight sensitive species have been observed on the site: San Diego horned lizard, loggerhead shrike, San Bernardino kangaroo rat, Northwestern San Diego pocket mouse, San Diego desert woodrat, Los Angeles pocket mouse, Black-tailedjackrabbit, and Parry's spineflower. The 2005 focused surveys were negative for all surveyed species. The site is designated, however, as critical habitat for both the San Bernardino kangaroo rat and the coastal California gnatcatcher. Mitigation measures must be implemented to assure that potential impacts to these species are reduced to less than significant levels. The site was found to contain Los Angeles pocket mouse. Impacts to this species could be significant without the implementation of mitigation measures. Development of the site will include improvements to Cable Creek. The creek is likely to contain waters of the US, and fall under the jurisdiction of both the US Army Corps of Engineers and the California Department of Fish and Game. These agencies will require permitting, and appropriate mitigation of impacts to species and communities of concern. Mitigation measures must be implemented to reduce potential impacts to less than significant levels. The project site is not within any area designated for wildlife corridors. In order to assure that impacts to biological resources are reduced to less than significant levels, the following mitigation measures shall be implemented: I. Removal of trees and shrubs should occur on the site outside of the bird nesting season. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February through August 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. ] "Biological Resource Assessment Rolling Hills Ranch Country View Estates..." prepared by Michael Brandman Associates, July 2005. IS 13 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 2. 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. 3. The project proponent shall mitigate impacts to Riversidian alluvial fan sage scrub habitat to the satisfaction of the California Department of Fish and Game and the US Fish and Wildlife Service. It is expected that up to 127.5 acres will need to be preserved off-site. 4. A Section 7 consultation shall be undertaken with the US Fish and Wildlife Service, in conjunction with the preparation of US Army Corps 404 permitting, for San Bernardino kangaroo rat and coastal California gnatcatcher, prior to the issuance of a grading permit. 5. An exclusion fence will be placed around the impact area for kangaroo rat as determined necessary by a qualified biologist. Trapping will be conducted within this area within 30 days of initiation of any ground disturbing activity in this impact area. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. 6. A qualified monitor shall be present during all ground disturbing activities of areas suitable for habitat for the San Bernardino kangaroo rat. The monitor will be empowered to stop building activities to avoid take of the species, and to assure compliance with the incidental take authorization for the project. 7. Off site mitigation of San Bernardino kangaroo rat habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. 8. Off site mitigation of coastal California gnatcatcher habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. 9. Los Angeles pocket mouse shall be trapped concurrently with the kangaroo rat trapping undertaken in mitigation measure 5, above. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. With the implementation of these mitigation measures, the potential impacts associated with biological resources will be reduced to less than significant levels. IS 14 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY v. CULTURAL 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 915064.5 ofCEQA? c) Cause a substantial adverse change in the significance of a historical resource as defined in 915064.5 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 0 C8:] 0 0 0 C8:] 0 0 o o o C8:] o C8:] o o o o C8:] o o o C8:] o Discussion: The proposed DDA will not, in and of itself, have any impact on cultural resources. The ultimate development of 279 homes, 30.5 acres of park land, or flood control improvements on the site, however, will disturb lands with the potential for such resources. A cultural resource survey was conducted for the proposed project4. The survey included both records searches and field inspections of the project site. The records search identified a number of previously identified resources in the vicinity of, but not on, the project site. The on site survey conducted on the project site identified no culturally significant resources in the area to be impacted by the proposed project. The proximity of other sites, however, led to a determination that there is a moderate potential for cultural resources to be unearthed during earth moving activities on the site. In order to assure that impacts to these resources are reduced to less than significant levels, mitigation measures must be implemented. The cultural resource study also included an analysis of the potential for paleontological resources on the site. No on site analysis was conducted. The analysis of soil types concluded, however, that Pleistocene fan deposits occur on the project site, and that these deposits have a high potential sensitivity 4 "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. IS 15 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY for paleontological resources. In order to assure that impacts to these resources are reduced to less than significant levels, mitigation measures must be implemented. 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 cultural and paleontological resources are mitigated to less than significant levels, the following mitigation measures shall be implemented. I. A qualified archaeological monitor shall be on site during all excavation and trenching activities on the project site, until such time as the monitor determines that the probability for location of artifacts is low. The monitor shall be empowered to stop or redirect earthmoving activities. Any resources identified on the site shall be properly catalogued and curated. The monitor shall prepare a report of all findings and deliver same to the City Planning Department within 30 days of the end of monitoring for review and approval. 2. A qualified paleontological monitor shall be on site during excavation and trenching on the site, in conformance with the requirements of the "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. 3. 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 Planning Department within 30 days of completion of earthmoving activities for review and approval. With implementation of these mitigation measures, impacts associated with cultural resources will be reduced to less than significant levels. IS 16 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? f) 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. Geology and soils may have an impact on the ultimate development of the 279 single family homes, 30.5 acres of park land, or flood control improvements on the property. A preliminary geotechnical study was prepared for the proposed projecr, and is used as the basis for the discussion below. The site is not located within the boundaries of an Alquist Priolo Earthquake Fault Zone. However, the site is located immediately southeast of such a Zone. Groundshaking on the property during a significant 5 "Geotechnical Investigation Proposed Residential Development..." prepared by Sladden Engineering, July 2004. IS 17 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY seismic event can be expected to be significant. The City will require that all construction on the project site meet or exceed seismic standards included in the Uniform Building Code. This standard requirement will assure that potential impacts associated with groundshaking will be reduced to less than significant levels. The site is located in a high wind area as designated by the General Plan, and could be subject to wind erosion, especially during construction of the proposed homes. The mitigation measures included in the Air Quality section, however, are designed to lessen impacts associated with wind erosion to less than significant levels. The site will also be subject to erosion associated with storm water while under construction. The City enforces the requirements of NPDES to assure that construction sites do not negatively impact storm water. These standard requirements will be applied to the proposed project, and will include the preparation of a Storm Water Pollution Prevention Program (SWPPP) which includes best management practices to be implemented during construction. These requirements are designed to assure that potential impacts associated with water erosion are reduced to less than significant levels. The site is not likely to be subject to liquefaction hazards, due to the depth to groundwater. The geotechnical borings performed on the project site did not encounter water at depths of up to 51 feet, and the geotechnical study estimates that groundwater is at a depth of 70 feet or more in this area of the City. The site is not located adjacent to significant slopes or rock outcroppings, nor is it composed of hillsides, and is not expected to be subject to landslides. Overall geology and soils impacts associated with the buildout of the proposed project are expected to be less than significant. IS 18 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 t8J environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the D D D t8J 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 t8J or acutely hazardous mat~rials, 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 t8J 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 t8J 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 t8J with an adopted emergency response plan or emergency evacuation plan? g) Expose people or structures to a significant risk D D t8J 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 19 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 jgJ Discussion: The DDA, in and of itself, will have no impact on hazardous materials. The buildout of the site will result in the construction of single family homes, which will store only small quantities of hazardous materials associated with housekeeping and gardening. These materials will be disposed of through household hazardous waste programs implemented by the City and third parties in the area. Impacts are expected to be less than significant. A Phase I Site Assessment was prepared for the proposed project site, to identify potential hazardous materials on the site6. The Phase I study did not identify previous use of the property, or the location of hazardous materials on the property. The site is not identified as having been affected by hazardous materials in the state and federal databases compiled for this purpose. The proposed project is not within the boundaries of an airport land use plan. The site is located in a Fire Hazard Area, and is identified as having a Moderate risk for wildland fires. The project proponent will be required to implement fire prevention measures identified by the Fire Marshal during review of the Tract Map for the project. These programs are designed to lower the potential impacts associated with wildland fires to less than significant levels. Overall impacts associated with hazards and hazardous materials are expected to be less than significant. 6 "Results of Phase I Environmental Site Assessment Proposed Residential Development Bice Property..." prepared by ProteITa Consulting, Inc., July 2004. IS 20 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 0 0 ~ 0 discharge requirements? b) Substantially deplete groundwater supplies or 0 0 ~ 0 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 0 0 ~ 0 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 0 ~ 0 0 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 0 0 0 ~ 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 21 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 D D i:8J D quality? g) Place housing within a 100-year flood hazard D i:8J D D 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 D D D i:8J structures which would impede or redirect flood flows? i) Expose people or structures to a significant D i:8J D D risk of loss, injury, or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? D D D i:8J k) Other: D D D i:8J Discussion: The DDA will not, in and of itself, have any impacts on hydrology or water resources. The ultimate development of the site for residential units has the potential to be significantly impacted by hydrology, without mitigation. The development of the site will also result in the consumption of domestic water for residential purposes. The site will utilize domestic water for landscaping and for interior uses. The ultimate development of 279 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 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. Impacts are expected to be less than significant. The project site is located within a 100 year flood plain, as determined by FEMA, and identified in the General Plan. The floodplain area is associated with the location of Cable Creek immediately north of the project site. Flood control improvements are proposed to protect the residential area from storm IS 22 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY flows. The project proponent will be required to prepare hydrology analyses which demonstrate that with improvements, the land can be made safe from flood hazards. The City Engineer will review the plans submitted, and assure that the designs provide for sufficient improvements to meet the City's standards. Without implementation of mitigation, the impacts associated with hydrology could be significant. 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 subject to tsunami or seiche. In order to mitigate the potential impacts associated with flooding and flood zones within the project site, the following mitigation measure shall be implemented: 1. Prior to approval of the Tentative Tract Map, the project proponent shall secure approval from the City Engineer of a Preliminary Hydrology Study and associated hydraulic analysis which demonstrates what improvements are required to remove the subject property from the 100 year flood plain. The City Engineer, may, at his discretion, require that the project proponent also secure a Conditional Letter of Map Amendment, or Letter of Map Amendment, from FEMA. All plans for improvements within Cable Creek shall also be reviewed and approved by the San Bernardino Flood Control District. With implementation of this mitigation measure, impacts associated with hydrology will be reduced to less than significant levels. IS 23 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY IX. LAND USE AND PLANNING - Would the project: a) Physically divide an established community? b) Conflict with any applicable land use plan, 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) Conflict with any applicable habitat conservation plan or natural community conservation plan? d) Be developed within the Hillside Management Overlay District? e) Be developed within Foothill Fire Zones A, B, or C as identified in the City's General Plan? t) Be developed within the Airport Influence Area as adopted by the San Bernardino International Airport Authority? g) Other: Potentially Significant Impact Less Than Significant With Mitigation Incorporation Less Than Significant Impact No Impact ~ ~ ~ ~ o ~ ~ Discussion: The DDA will not, in and of itself have any impact on land use planning. The site is currently vacant, and surrounded by scattered residential and vacant lands. There will be no displacement of an established community. o o o o o o The ultimate development of the single family homes, 30.5 acres of park lands, and flood control improvements will ,require a General Plan Amendment and Change of Zone from the City of San Bernardino. The General Plan Amendment and Change of Zone will be required to change the current RL land use designation to RS, allowing the development of 7,200 square foot lots within the project. In addition, the 30.5 acres proposed for park land will require a Public Park designation. The future General Plan Amendment and Change of Zone are expected to be compatible with land use designations currently surrounding the site. Park lands are designated southeasterly of the project site. Residential density surrounding and to the north of the project site include progressively less dense single family IS 24 o o o o o o o ~ o o o o o o o REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY residential designations. The project site is located immediately adjacent to the 1-215 freeway. Should the RS designation be applied, the proposed project will provide a buffer for RL and RL 3.5 lands located to the north and northwest of the project site. The General Plan Amendment and Change of Zone are supported by policies of the General Plan Land Use Element, including policies 2.1.3, 2.2.2, 2.5.6, 2.7.1 and the strategies of the Verdemont Heights Area Plan. As previously stated, the proposed project will be required to implement fire protection measures consistent with requirements for fire hazard areas. 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. IS 25 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 [gj 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 [gj 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 [gj 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 26 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 groundborne 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 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 ultimate development of single family homes and the park lands will affect noise levels, both from construction and operation of the project. In addition, the location of the project site adjacent to the Interstate 215 right of way has the potential to impact noise levels in the residential yards, and within the homes themselves. In order to determine the potential impacts associated with noise at the site, a noise study was prepared7. Construction Noise Construction of the proposed project will temporarily increase noise levels in the area. The City will regulate the construction hours on the site to daytime hours, when impacts are less noticeable due to higher ambient noise levels. However, noise levels from construction equipment can be significant, and could impact surrounding sensitive receptors, such as homes which occur in the area surrounding the 7 "Noise Impact Analysis Bice Property Residential Development," prepared by LSA, August 2005. IS 27 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY project site. In order to assure that construction impacts are reduced to less than significant levels, the noise study recommends the implementation of mitigation measures. Off-Site Traffic Noise The traffic generated by vehicles resulting in development of the site have the potential to increase noise levels on surrounding roadways, and affect sensitive receptors. The study analyzed traffic noise levels on the 1-215 freeway, Little League Drive, Palm Avenue and other roadways in the area surrounding the proposed project. Existing noise levels without construction of the project were compared to those which would be expected with the addition of project-related vehicle trips. This analysis found that the operation of the proposed subdivision will not impact sensitive receptors, although noise levels on Kendall south of Little League Drive will increase 5.1 dBA within the road right of way. The impact to surrounding residents will therefore be less than significant. On-Site Traffic Noise Existing and future traffic noise on 1-215 and surrounding City roadways have the potential to impact the residents of the project when it is developed. The study analyzed the potential impacts of traffic noise on these roads, and found that the City street noise levels would not result in significant impacts on the project site, primarily due to the distance from Little League Drive to the project site (streets immediately adjacent to the project do not have high noise levels). The analysis found that noise levels generated on 1-215 will impact'lots along the southern property line of the project, without the implementation of mitigation measures. The study also analyzed the level of mitigation required to lower the noise levels to the City's acceptable noise level of 65 dBA CNEL on the ground floor of structures within the project, and found that wall heights of 6 to 10 feet will be required to mitigate the ground floor condition. The analysis further considered the potential impacts of noise from potential second stories along the property boundary, and found that noise levels would exceed the City's standard. This analysis further found that building upgrades are necessary to assure that the second floor interior noise levels do not exceed the City's 45 dBA CNEL. Impacts associated with off-site traffic noise on project houses are therefore significant, and must be mitigated. In order to mitigate noise impacts to less than significant levels, the following mitigation measures are required: 1. All construction equipment shall be equipped with properly operating mufflers. 2. All stationary construction equipment shall be directed away from sensitive receptors near the project site. 3. Construction staging areas shall be located as far away from sensitive receptors as possible. 4. A sound wall of 6 to 10 feet, as delineated in Table M of the Noise Impact Analysis cited below, shall be constructed along the project frontage on 1-215. 5. If second floor balconies or decks are proposed for any home adjacent to the 1-215 right of way, facing the right of way, a solid barrier of at least 5 feet shall be provided on the perimeter of the balcony or deck. 6. Second floor bedroom windows shall be equipped with double-paned windows with a minimum sound transmission class of STC-28 to STC-34. 7. Mechanical ventilation shall be provided for all homes within 2,200 feet of the centerline of 1-215. IS 28 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY The development of single family homes is not expected to generate groundbome vibration or groundborne noise levels. The site is not within the Airport Influence Area. With implementation of mitigation measures, impacts associated with noise will be reduced to less than significant levels. IS 29 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than PotentiaIly 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 site is currently vacant, and ,I no existing housing will be removed by development of the project. Impacts associated with population and housing are expected to be negligible. IS 30 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Less Than PotentialIy 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 services: 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 buildout of the proposed project will result in an increase in demand for public services, which will be offset by the sales and property tax generated by the homes and their occupants. The project site was the subject of an agreement with the San Bernardino City Unified School District in 1991 which waived the payment of school fees for up to 245 dwelling units. The provisions of this agreement will apply to the proposed project. Therefore, the project proponent will be required to pay school impact fees for 34 units at the time of issuance of building permits. Overall impacts associated with public services are expected to be less than significant. IS 31 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 0 0 0 [gI 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 0 0 0 [gI or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? c) Other: 0 0 0 [gI Discussion: The DDA will have no impact on recreation facilities in the City. The project includes 30.5 ) acres of park land to be conveyed by the Agency to the City. which will be responsible for its development. These park lands will be available to the public, increasing the recreational opportunities available to surrounding residents. Impacts to recreation in the City are expected to be insignificant. IS 32 IS 33 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY A traffic analysis was prepared for the residential component of the proposed projects. The study included analysis of current conditions, opening project year conditions, and 2030 conditions. The study analyzed the impacts on eight intersections, as follows: 1. 1-215 SB Ramps @ Palm 2. 1-215 NB Ramps @ Palm 3. Kendall Drive @Little League 4. Kendall Drive @ Palm 5. Belmont Ave. @Little League 6. Belmont Ave. Palm 7. Meyers Road@Palm 8. Highway 215 Frontage Road @ Little League The analysis of current conditions found that under current conditions, all studied intersections operate at acceptable levels of service (LOS) during the AM and PM peak hour. Under the opening year scenario, without the proposed project, the 1-215 NB Ramps at Palm operate at LOS E in the PM peak hour, while all other intersections operate at LOS D or better. With the addition of the proposed project in its opening year, both the north and south bound ramps of 1-215 at Palm operate at LOS D or worse during both the AM and PM peak hour. All other intersections studied are estimated to operate at LOS D or better during that same time period. For the 2030 horizon year, the studied intersections all operate at acceptable levels of service, both without and with the proposed project. The proposed park lands will experience their highest levels of activity on weekends and evenings, when the local street and freeway system is less impacted. The highest number of trips expected to be generated (370 daily trips on Saturdays), are not expected to significantly impact local roadways. The proposed project, as described above, will have an impact on traffic levels at the 1-215 interchange at Palm Avenue in the short term (both ramps). The project's contribution to the deficiency was determined to be 8% for the southbound ramps, and 9% for the northbound ramps. The traffic study found that the signalization of the ramps is required to mitigate the impacts of the deficient level of service. In order to reduce the potential impact to these two intersections to less than significant levels, the following mitigation measure is required. I. The project shall contribute its fair share to the signalization of the northbound and southbound ramps ofI-215 at Palm Avenue. The proposed project does not involve air traffic, and will therefore have no impact on air traffic patterns. The design of streets will be reviewed and approved by the City Engineer to ensure safe operations. The proposed project will be required to 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. S "Traffic Impact Analysis to Evaluate the Traffic Circulation.,," prepared by Transtech Engineers, June 2005. IS 34 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 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 f!!cilities 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 ~ Discussion: Implementation of the DDA will not, in and of itself, have any impact on utilities. Utility usage will increase with the development of the project. The utilities serving the project site charge IS 35 , REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 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 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. IS 36 " REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY 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 rzJ 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 rzJ 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 rzJ 0 0 which will cause substantial adverse effects on human beings, either directly or indirectly? Discussion: The DDA will have no impact on biological or cultural resources, on cumulative impacts, or on human beings. The buildout of the project will impact biological and cultural resources, but these impacts 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 ErR will therefore not be exceeded as a result of implementation ofthe proposed project. The proposed project will impact human beings through impacts to air quality and noise. Mitigation measures included in this Initial Study, however, will reduce these potential impacts to less than significant levels, IS 37 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. 1. 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 5. 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 8. Public Works Standard Requirements - Grading 9. "Traffic Impact Analysis to Evaluate the Traffic Circulation..." prepared by Transtech Engineers, June 2005. 10. "Noise Impact Analysis Bice Property Residential Development," prepared by LSA, August 2005. 11. "Results of Phase I Environmental Site Assessment Proposed Residential Development Bice Property..." prepared by Proterra Consulting, Inc., July 2004. 12. "Geotechnical Investigation Proposed Residential Development. . ." prepared by Sladden Engineering, July 2004. 13. "Phase 1 Cultural ResourcesBurvey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. 14. "Biological Resource Assessment Rolling Hills Ranch Country View Estates..." prepared by Michael Brandman Associates, July 2005. IS 38 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Response to Comments Initial Stndy for the Disposition and Development Agreement (DDA) between Century Crowell Communities, LP and the Redevelopment Agency of the City of San Bernardino The Agency received two letters in response to the above referenced Initial Study. One from the California Department of Transportation (CalTrans), and one from the California Department of Toxic Substances Control (DTSC). In addition, the Agency received transmittals from the Governor's Office of Planning and Research, State Clearinghouse and Planning Unit, reporting on the comment period and attaching the two letters from the agencies cited above. All correspondence is attached. The comments made by CalTrans and DTSC are addressed individually below. Department of Toxic Substances Control The Department incorrectly states that the MND does not identify potentially contaminated sites within the project area. Page IS 20 specifically states: "The site is not identified as having been affected by hazardous materials in the state and federal databases compiledfor this purpose." Comments 3) through 9) address requirements for conducting investigations and remediating contaminated soils. Since it has been determined that no contamination has occurred on the site, these comments do not apply. Comments 10) and 11) refer to the need for an NPDES permit. The permit will be required for the construction of the project. As stated in the Initial Study, the proposed project will be required to undergo further environmental review when a project is submitted to the City. The City will require compliance with NPDES standards as part of its standard requirements. This will include best management practices to address potential contamination. Comment 12) addresses the site's potential use for agricultural purposes. The site has not been in agriculture, as stated in the Initial Study, and therefore the requested investigation does not apply. Department of Transportation CalTrans notes that the current right of way of the 1-215 may be insufficient, and that the project should be designed with a 40 foot landscaped buffer to allow for future right of way acquisition; that the project should be responsible for the installation of the traffic signal at the 1-215Palm intersection; and that the Traffic Study should be consistent with the requirements of the Congestion Management Plan (CMP). I REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO As stated in the IS, the Development Agreement is the project currently being considered under CEQA. As required by CEQA, the Initial Study addresses the potential build out of the project in concept, since it is known that the Development Agreement would result in the development of a residential subdivision on the site. The project has not been designed, and will require review and approval by the City in the future. Project -specific issues will be considered by the City at that time, and it will determine, through further environmental review, what impacts the project will have on the circulation system, including the need for additional right of way and traffic signals. The City will also require the preparation of a traffic impact analysis. The City regularly requests the preparation of CMP-compliant traffic studies, and the City will require it at the time the project is submitted for review. Conclusion Comments made by CalTrans and the DTSC generally affect the actual development of the project site, not the implementation of the Disposition and Development Agreement. None of the comments affect the conclusions of the Initial Study, or require that the mitigation measures proposed be amended. 2 " I ~~ ~ - @ )0 Department of Toxic Substances Control Dan Skopec Acting Secretary Cal/EPA Maureen F. Gorsen, Director 5796 Corporate Avenue Cypress, California 90630 . .' Atridld ScnwatZenegger , Gci~~mor ~ -', .'< I.V D May 24, 2006 :J.il ~ -C: Lv Mr. Colin Strange Redevelopment Agency of the City of San Bernardino 201 North E Street, Suite 301 San Bernardino, California 92401 MITIGATED NEGATIVE DECLARATION (MND) FOR A DISPOSITION AND DEVELOPMENT AGREEMENT RESULTING IN THE CONSTRUCTION OF 279 SING LE FAMILY HOMES, A 7.5 ACRE PARK, A 5.5 ACRE PARK, AND A 14 ACRE SOCCER PARK ON 91.75 ACRES IN THE CITY OF SAN BERNARDINO (SCH# 2006051052) Dear Mr. Strange: The Departrnent of Toxic Substances Control (DTSC) has received your submitted Mitigated Negative Declaration (MND) for the above-mentioned project. The following project description is stated in your document: "The project consists of a Disposition and Development Agreement (DDA) between Century Crowell Communities LP, and the Redevelopment Agency of the City of San Bernardino (Agency) to convey 91.75 acres to Century Crowell Communities LP, which will develop approximately 279 single family lots, as well as lots for streets, a 7.5 acre park, a 5.5 acre park, and a 14 acre soccer park through the preparation and approval of a Tract Map to be submitted to the City of San Bernardino." Based on the review of the submitted document, DTSC has comments as follow: 1) The MND should identify and determine whether current or historic uses in the Project area may have resulted in any release of hazardous wastes/substances. The MND states: "A Phase I Site Assessment was prepared for the proposed project site, to identify potential hazardous materials on the site. The Phase I study did not identify previous use of the property, or the location of hazardous materials on the property. @ Printed on Recycled Paper Mr. Colin Strange May 24, 2006 Page 2 2) The MND should identify any known or potentially contaminated sites within the proposed Project area. For all identified sites, the MND should evaluate whether conditions at the site may pose a threat to human health or the environment. A Phase I Assessment may be sufficient to identify these sites. Following are the databases of some of the regulatory agencies: . National Priorities List (NPL): A list maintained by the United States Environmental Protection Agency (U.S.EPA). . Site Mitigation Program Property Database (formerly CaISites): A Database primarily used by the California Department of Toxic Substances Control. . Resource Conservation and Recovery Information System (RCRIS): A database of RCRA facilities that is maintained by U.S. EPA. . Comprehensive Environmental Response Compensation and Liability Information System (CERCLlS): A database of CERCLA sites that is maintained by U.S.EPA. . Solid Waste Information System (SWIS): A database provided by the California Integrated Waste Management Board which consists of both open as well as closed and inactive solid waste disposal facilities and transfer stations. . Leaking Underground Storage Tanks (LUST) / Spills, Leaks, Investigations and Cleanups (SLlC): A list that is maintained by Regional Water Quality Control Boards. . Local Counties and Cities maintain lists for hazardous substances cleanup sites and leaking underground storage tanks. . The United States Army Corps of Engineers, 911 Wilshire Boulevard, Los Angeles, California, 90017, (213) 452-3908, maintains a list of Formerly Used Defense Sites (FUDS). 3) The MND should identify the mechanism to initiate any required investigation and/or remediation for any site that may be contaminated, and the government agency to provide appropriate regulatory oversight. If hazardous materials or wastes were stored at the site, an environmental assessment should be conducted to determine if a release has occurred. If so, further studies should be carried out to delineate the nature and extent of the contamination, and the potential threat to public health and/or the environment should be evaluated. It may be necessary to determine if an expedited response action is required to Mr. Colin Strange May 24, 2006 Page 3 reduce existing or potential threats to public health or the environment. If no immediate threat exists, the final remedy should be implemented in compliance with state regulations, policies, and laws. 4) All environmental investigations, sampling and/or remediation for the site should be conducted under a Workplan approved and overseen by a regulatory agency that has jurisdiction to oversee hazardous substance cleanup. The findings of any investigations, including Phase I and II investigations, should be summarized in the document. All sampling results in which hazardous substances were found should be clearly summarized in a table. 5) Proper investigation, sampling and remedial actions, if necessary, should be conducted at the site prior to the new development or any construction, and overseen by a regulatory agency. 6) If any property adjacent to the project site is contaminated with hazardous chemicals, and if the proposed project is within 2,000 feet from a contaminated site, except for a gas station, then the proposed development may fall within the "Border Zone of a Contaminated Property." Appropriate precautions should be taken prior to construction if the proposed project is within a "Border Zone Property. 7) If building structures, asphalt or concrete-paved surface areas or other structures are planned to be demolished, an investigation should be conducted for the presence of lead-based paints or products, mercury, and asbestos containing materials (ACMs). If lead-based paints or products, mercury or ACMs are identified, proper precautions should be taken during demolition activities. Additionally, the contaminants should be remediated in compliance with California environmental regulations, policies, and laws. 8) The project construction may require soil excavation and soil filling in certain areas. Appropriate sampling is required prior to disposal of the excavated soil. If the soil is contaminated, properly dispose of it rather than placing it in another location. Land Disposal Restrictions (LDRs) may be applicable to these soils. Also, if the project proposes to import soil to backfill the areas excavated, proper sampling should be conducted to make sure that the imported soil is free of contamination. 9) Human health and the environment of sensitive receptors should be protected during the construction or demolition activities. A study of the site, overseen by the appropriate government agency, might have to be conducted to determine if Mr. Colin Strange May 24, 2006 Page 4 there are, have been, or will be, any releases of hazardouS materials that may pose a risk to human health or the environment. 10) If the project plans include discharging wastewater to a storm drain or surface water, it may be necessary to obtain an NPOES permit from the overseeing Regional Water Quality Control Board (RWQCB). 11) If during construction/demolition in the Project area, soil and/or groundwater contamination is suspected, construction/demolition in the area should cease and appropriate health and safety procedures should be implemented. If it is determined that contaminated soil and/or groundwater exist, the NO should identify how any required investigation and/or remediation will be conducted, and the appropriate government agency to provide regulatory oversight. 12) If the site was and/or is used for agricultural activities, onsite soils may contain pesticide, herbicides and agricultural chemical residue. Proper investigation and remedial actions, if necessary, should be conducted at the site prior to construction of the project. ) OTSC provides guidance for cleanup oversight through the Voluntary Cleanup Program (VCP). For additional information on the VCP, please visit OTSC's web site at www.dtsc.ca.gov. If you have any questions regarding this letter, please contact Mr. Joseph Kaslowski, Project Manager, at (714) 484-5471 or email atjkaslowski@dtsc.ca.gov . Sincerely, Greg Holmes Unit Chief Southern California Cleanup Operations Branch - Cypress Office cc: See next page Mr. Colin Strange May 24, 2006 Page 5 cc: Governor's Office of Planning and Research State Clearinghouse P.O. Box 3044 Sacramento, California 95812-3044 Mr. GuentherW. Moskat, Chief Planning and Environmental Analysis Section CEQA Tracking Center Department of Toxic Substances Control P.O. Box 806 Sacramento, California 95812-0806 CEQA# 1411 S TAT E OF C A L I FOR N I A Governor's Office of Planning and Research State Clearinghouse and Planning Unit ~"PlAJt."", ,,~'ft. f *~"f; ~ .1 .,-: . oPf. ~~ :t1'EOFC~'. \. Arnold Schwarzenegger ) Governor Sean Walsh Director Jnne 12,2006 .....- Colin Strange San Bernardino County 20 I North E Street,. Ste. 30 I San Bernardino, CA 92401 -'" 0- ;;z - Subject: Development Agreement to Convey 9 1.75 Acres in the City of San Bernardino, California;::;; SCH#: 2006051052 Dear Colin Strange: The State Clearinghouse submitted the above named Negative Deciaration to selected state agencies for review. On the enclosed Docnment Details Report please note that the Clearinghouse has listed the state agencies that reviewed your document. The review period closed on June 8, 2006, and the comments from the responding agency (ies) is (are) enclosed. If this comment package is not in order, please notifY the State Clearipghouse immediately. Please refer to the project's ten-digit State Clearinghouse nmnber in future correspondence so that we may respond promptly. Please note that Section 21 I04(c) of the California Public Resources Code states that: , . "A responsible or other public agency shall only make substantive comments regarding those activities involved in a project which are within an area of expertise of the agency or which are required to be carried out or approved by the agency. Those comments shall be supported by specific documentation." These comments are forwarded for use in preparing your final environmental docnment. Should you need more information or clarification of the enclosed comments, we recommend that you contact the commenting agency directly. This letter acknowledges that you have complied with the State Clearinghouse review requirements for draft enviromnental docnments, pursuant to the Califomia Environmental Quality Act. Please contact the State Clearinghouse at (916) 445-0613 if you have any questions regarding the environmental review process. ~M~- Terry Roberts Director, State Clearinghouse Enclosures cc: Resources Agency 1400 TENTH STREET P.O. BOX 3044 SACRAMENTO, CALIFORNIA 95812.3044 TEL (916) 445.0613 FAX (916) S23.3018 WWW.opr.ca.gov STATE OF CALIFORNIA-BUSINESS TRANSPORTATION AND HOUSING AGENCY ARNOLD SCHW ARZENF..GGER. Governor . DEPARTMENT OF TRANSPORTATION DISTRICT 8 ..\'LANNING AND LOCAL ASSISTANCE (MS 722) :64 WEST4"SlREET, ~",FLOOR SANBERNARDlNO, CA 92401-1400 PHONE (909) 3834557 " ; FAX (909) 383-5936 TIT (909) 383-6300 ~ .) Flex your power! Be energy efficient! (; \ Q. <A( l. ~ {)In ~ eJj--e June 14,2006 RECEIVED JUN 1 6 2006 STATE CLEARING HOUSE Mr. Colin Strange City of San Bernardino Redevelopment Agency 201 North "E" Street, Suite 301 San Bernardino, CA 92041 Dear Mr. Strange: Proposed 279 lot Subdivision Assessor Parcel Numbers: 261-111-01,21,23,25,29,30,33,35,37,40; 261-121-01,02,03,08,0913,14; 261.131c04, 26~-171-06, 261-451-01 through 48 261-461-01 through 66 State Clearinghouse NtUi1bet 2006051052 1-215 PM 15.00+/- The California Department of Transportation (Caltrans), has reviewed the notice of a pending Development Agreement for a 279-10t subdivision on 91.75 acres located at Little League Road and Interstate 215 (1-215). We offer the following comments on the preliminary application materials that were provided to us regarding this site: · We note that 1-215 currently has 180 feet of right-of-way in the vicinity of this development. Our Route Concept Report for 1-215 calls for an Ultimate Transportation Facility of 10 lanes. Potential also exists for the need for auxiliary lanes. For these reasons it appears that a total right-of-way width of260 feet will be needed. We request that the developer set aside a 40 foot wide landscape buffer along the 1-215 frontage which could be purchased by the State for right-of-way use at a later date. ) "Ca/trans improves mobility across California" Mr. Collin Strange June 14,2006 Page 2 · The preliminary traffic study for this development indicates a traffic signal at the I-215/Palm Avenue Interchange will likely meet warrants at project opening and that the applicant will be required to pay their fair share but not actually install the signal. We feel this will not be adequate to meet the mobility needs of this area upon completion of this development and the City will need to ensure that any newly needed traffic signals are actually installed. · The Traffic Impact Analysis should be consistent with Appendix C/Figure C-l per San Bernardino County CMP, 2005 Update, "Preparation of SANBAG and Caltrans TIA Reports." This guide is available on the internet at: http://www.sanbag.ca.gov/planning/nexus-studv/Congestion-mgmt app-c. pdf We appreciate the opportunity to offer comments concerning this project. If you have any questions regarding this letter, please contact Mark Roberts, IGR/CEQA Liaison at (909) 383-2515 for assistance. Sincerely, Original signed by Daniel Kopulsky DANIEL KOPULSKY Office Chief Special Studies, IGR/CEQA Review c: Mark Roberts State Clearinghouse ) "Co/trans improves mobility across California" STATE OF CALIFORNIA Governor's Office of Planning and Research State Clearinghouse and Planning Unit ~"~q ...~'1t. i*~t '$,,.,~ ,j) "~I/F~ .,., Arnold Schwarzenegger Governor S~ Walsh ~ ;!grecto(,~:, 0-. June 20, 2006 -0 ~ '-f! Colin Strange San Bernardino County 201 North E'Street, Ste. 301 San Bernardino, CA 9240 I -.0 Subject: Development Agreement to Convey 91.75 Acres in the City of San Bernardino, California SCH#: 2006051052 Dear Colin Strange: The enclosed comment (s) on your Negative Declaration was (were) received by the State Clearinghouse after the end of the state review period, which closed on June 8, 2006. Weare forwarding these comments to you because they provide information or raise issues that should be addressed in your final environmental document. The California Environmental Quality Act does not require Lead Agencies to respond to late comments. However, we encourage you to incorporate these additional comments into your final environmental document and to consider them prior to taking final action on the proposed project. Please contact the State Clearinghouse at (916) 445-0613 if you have any questions concerning the environmental review process. If you have a question regarding the above-named project, please refer to the ten-digit State Clearinghouse number (2006051052) when contacting this office. ~N-A'~ Terry Roberts Senior Planner, State Clearinghouse Enclosures cc: Resources Agency 1400 TENTH STREET P.O. BOX 3044 SACRAMENTO, CALIFORNIA 95812-3044 TEL (916) 445-0613 FAX (916) 323-3018 www.opr.ca.gov MITIGATION MONITORING AND REPORTING PROGRAM FOR THE DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN CENTURY CROWELL COMMUNITIES, LP 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 Century Crowell Communities LP 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: 1. 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. MITIGATION MEASURES Air Quality 1. No more than an area equivalent to 10 acres shall be actively graded in any one day. 2. 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. 3. All trucks leaving the site shall be washed off to reduce fugitive dust being tracked onto local roadways. 4. Any portion ofthe site to be graded shall be pre-watered to a depth of three feet prior to the onset of grading activities. 5. Any area which remains undeveloped for a period of more than 30 days shall be stabilized using either chemical stabilizers or hydro seed on the affected portion of the site. 6. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction- related dirt on approach routes to the site. 7. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IMPLEMENTATION AND VERIFICATION The Public Works Division of the Development Services Department shall conduct site inspections during grading process. COMPLIANCE RECORD Inspection records on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 2 MITIGATION MEASURES Biological Resources 1. Removal of trees and shrubs should occur on the site outside of the bird nesting season. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February through August 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 The Planning Division of the Development Services Department to review and approved pre-construction study. COMPLIANCE RECORD Study to be kept on file in the Development Services Department WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 2. 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. 3. The project proponent shall mitigate impacts to Riversidian alluvial fan sage scrub habitat to the satisfaction of the California Department of Fish and Game and the US Fish and Wildlife Service. It is expected that up to 127.5 acres will need to be preserved off-site. 4. A Section 7 consultation shall be undertaken with the US Fish and Wildlife Service, in conjunction with the preparation of US Army Corps 404 permitting, for San Bernardino kangaroo rat and coastal California gnatcatcher, prior to the issuance of a grading permit. 7. Off site mitigation of San Bernardino kangaroo rat habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. 8. Off site mitigation of coastal California gnatcatcher habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. 3 IMPLEMENTATION AND VERIFICATION The Planning Division of the Development Services Department to receive copies of all permits and confirmation by agencies of implementation of mitigation. COMPLIANCE RECORD Copies of permits to be kept on file in the Development Services Department WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5. An exclusion fence will be placed around the impact area for kangaroo rat as determined necessary by a qualified biologist. Trapping will be conducted within this area within 30 days of initiation of any ground disturbing activity in this impact area. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. 9. Los Angeles pocket mouse shall be trapped concurrently with the kangaroo rat trapping undertaken in mitigation measure 5, above. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. IMPLEMENTATION AND VERIFICATION Biologist to submit monitoring and trapping reports to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Report to be kept on file in Development Services Department WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 6. A qualified monitor shall be present during all ground disturbing activities of areas suitable for habitat for the San Bernardino kangaroo rat. The monitor will be empowered to stop building activities to avoid take of the species, and to assure compliance with the incidental take authorization for the project. 4 IMPLEMENTATION AND VERIFICATION Biologist to submit monitoring report to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Report to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Cultural Resources 1. A qualified archaeological monitor shall be on site during all excavation and trenching activities on the project site, until such time as the monitor determines that the probability for location of artifacts is low. The monitor shall be empowered to stop or redirect earthmoving activities. Any resources identified on the site shall be properly catalogued and curated. The monitor shall prepare a report of all findings and deliver same to the City Planning Department within 30 days of the end of monitoring for review and approval. 2. A qualified paleontological monitor shall be on site during excavation and trenching on the site, in conformance with the requirements of the "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. 3. 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 Planning Department within 30 days of completion of earthmoving activities for review and approval. IMPLEMENTATION AND VERIFICATION Archaeologist and paleontologist to submit monitoring reports to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Reports to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5 MITIGATION MEASURES Hydrology and Water Resources 1. Prior to approval of the Tentative Tract Map, the project proponent shall secure approval from the City Engineer of a Preliminary Hydrology Study and associated hydraulic analysis which demonstrates what improvements are required to remove the subject property from the 100 year flood plain. The City Engineer, may, at his discretion, require that the project proponent also secure a Conditional Letter of Map Amendment, or Letter of Map Amendment, from FEMA. All plans for improvements within Cable Creek shall also be reviewed and approved by the San Bernardino Flood Control District. IMPLEMENTATION AND VERIFICATION The Public Works Division of the Development Services Department to review and approve hydrology study. COMPLIANCE RECORD Approved report on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Noise I. All construction equipment shall be equipped with properly operating mufflers. 2. All stationary construction equipment shall be directed away from sensitive receptors near the project site. 3. Construction staging areas shall be located as far away from sensitive receptors as possible. 4. A sound wall of 6 to 10 feet, as delineated in Table M of the Noise Impact Analysis cited below, shall be constructed along the project frontage on 1-215. 6 IMPLEMENTATION AND VERIFICATION The Public Works Division ofthe Development Services Department to conduct on site inspections during construction. COMPLIANCE RECORD Inspection reports to be kept on file in Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5. If second floor balconies or decks are proposed for any home adjacent to the 1- 215 right of way, facing the right of way, a solid barrier of at least 5 feet shall be provided on the perimeter of the balcony or deck. 6. Second floor bedroom windows shall be equipped with double-paned windows with a minimum sound transmission class of STC-28 to STC-34. 7. Mechanical ventilation shall be provided for all homes within 2,200 feet of the centerline ofI-215. IMPLEMENTATION AND VERIFICATION The Building and Safety Division ofthe Development Services Department to conduct plan check for compliance. COMPLIANCE RECORD Building plans to be kept on file in Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Traffic and Circulation 1. The project shall contribute its fair share to the signalization ofthe northbound and southbound ramps ofI-215 at Palm Avenue. IMPLEMENTATION AND VERIFICATION The Building and Safety Division of the Development Services Department to assure fees have been paid prior to issuance of building permits. 7 COMPLIANCE RECORD Proof of payment to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 8 .. ~~~y RESOLUTION NO. 2 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE 2006 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES, LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") RELATED TO APPROXIMATELY 79 ACRES OF AGENCY PROPERTY LOCATED NORTH OF LITTLE LEAGUE DRIVE, EAST OF I-2lS FREEWAY ("PROPERTY") 3 4 5 6 7 8 WHEREAS, the City of San Bernardino, California (the "City"), is a mumclpa 9 corporation and charter city, duly organized and existing pursuant to the provisions of th constitution of the State of California; and 10 II WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") 12 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 13 underutilized land; and 14 15 WHEREAS, the Agency is the current owner of that certain real property consisting 0 approximately 79 acres located north of Little League Drive, east of 1-215 Freeway, (th 16 "Property"); and. 17 WHEREAS, Agency agrees to sell the Property and the Developer agrees to purchase th Property in an AS IS condition for a purchase price ("Purchase Price") equal to not less th $4,100,000.00 or the fair market value, whichever is greater ("Fair Market Value"); and WHEREAS, the Agency is entering into a 2006 Disposition and Development Agreemen 18 19 20 21 (the "DDA") with Century Crowell Communities, LP, a California Limited Partnership (th 22 "Developer") pursuant to which the Agency will sell the Property to the Developer for the Fai 23 Market Value of the Property; and WHEREAS, the DDA provides for the development of the Property to be developed int 279 single-family homes ranging in size between 1,900 square feet and 3,100 square feet on lot averaging 8,370 square feet but not less than 7,200 square feet (the "Project"); and 24 25 -1- r:\Al:elldu\Resolulion.s\ReSllllllioAl\2006\07-l4-01i Cu~IIlI"Y Cro...,U CBin rroperty) MCC IlfMl.dot '-'- 6 7 8 9 10 II 12 13 ~..,...- 14 15 16 17 18 19 20 21 22 23 24 25 WHEREAS, the Agency has prepared and published a notice of joint public hearing i 2 The San Bernardino County Sun Newspaper on June 5 and 12,2006, regarding the consideratio 3 and approval of the DDA and also published a Notice of Intent to adopt a Mitigated Negativ 4 Declaration related to the Project in accordance with the California Environmental Quality Ac 5 ("CEQA"); and WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma transfer the Property to the Developer subject to the Mayor and Common Council (th "Council") and Community Development Commission (the "Commission") adopting Resolution authorizing the Agency to transfer the Property in light of the findings set fo 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 CEQA, California Public Resources Code Sections 21 000, et seq., in accordance with Public Resources Code Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and WHEREAS, the Initial Study (IS) and the Attachment to the Staff Report was circulate on May 9,2006 and 7 public comments were received; and WHEREAS, the IS identified potentially significant effects on the environment connection with the proposed Project and identified mitigation measures to reduce thes potentially significant effects to less than significant levels; and WHEREAS, based on the potential significant affects on the environment, the Mitigatio Monitoring and Reporting Program (the "Monitoring Program"), Attachment to the Staff Repo relative to the DDA between the Agency and the Developer to mitigate the potentially significan affects on the environment has been prepared, and the Developer has agreed to implement suc mitigation measures pursuant to said Monitoring Program; and -2- P:\A;~du\Rnolllllo~\Rnohillo~.IJ006107-l4-U6 Celllllry Cro.uU (8i~e Properl,) MCC Rlllo.doc -.....- "-" 14 17 18 19 20 21 22 23 24 25 ",""'.w WHEREAS, the Agency has prepared the Mitigated Negative Declaration with respect t 2 the Project in accordance with the provisions of CEQA and the CEQA Guidelines develope 3 4 thereunder and the Council will consider adoption thereof; and WHEREAS, it is appropriate for the Council to take action with respect to the dispositio 5 of the Property to the Developer by the Agency and to approve the DDA as set forth in thi 6 Resolution. 7 NOW, THEREFORE, IT IS HEREBY RESOLVED, DETERMINED AND ORDERED BY THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO, AS FOLLOWS: 8 9 Section 1. On July 24, 2006, the Council conducted a full and fair joint publi 10 II hearing with the Commission, as the governing board of the Agency, relating to the dispositio 12 of the Property from the Agency to the Developer and the development thereof pursuant to th DDA. The minutes of the City Clerk for the July 24, 2006, meeting of the Council shall includ 13 a record of all communication and testimony submitted to the Council by interested person relating to the public hearing and the approval of the DDA and the adoption of the Mitigate 15 Negative Declaration. 16 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 334'33 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, and the Monitoring Program for the Project and th Council hereby adopts the Mitigated Negative Declaration and the Mitigation Monitorin 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 Property by the Agenc to the Developer on the terms and conditions set forth in the DDA. A copy of the DDA in th fonn submitted at this joint public hearing is on file with the City Clerk. The Council hereb -3- f':\A:flldas\!UIllI"liolU\RC501"tiuu.s\2006107-24-06 etAI..,.} Cro...,U (BKt Property) MCC RUlI.doc finds and determines that the consideration payable by the Developer to the Agency as th """- 2 purchase price for the Property, pursuant to the DDA, is an an10unt which is not less than Fai 3 Market Value at its highest and best use, as set forth in the 33433 Report and the disposition 0 4 the Property to the Developer on the tem1S set forth in the DDA shall assist in the elimination 0 5 blight on the Property. 6 Section 5. 7 1// 1// 8 1// 9 1// 10 1// 11 1// 12 1// 13 1// ~ 14 1// IS 1// 16 1// 17 /1/ 18 1// 19 1// 20 /1/ 21 /1/ 22 1/11 ~3 ' II ;'; I 24 1// 25 1// 1// The Resolution shall become effective immediately upon its adoption. -4- f:\Artnda,l.Rrlilllulio4s\Re11l1uIiOQi\ZOOCi\07_l4-1l6 Crli1llr) Cr."uU (Biu PrllprM)1 MCC R.so.d"" - 2 3 4 5 6 7 8 9 10 II 12 13 'l:.............. 14 IS 16 17 RESOLUTION OF THE MAYOR AND COMMON COUNCIL OF THE CITY OF SAN BERNARDINO APPROVING THE 2006 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES, LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") RELATED TO APPROXIMATELY 79 ACRES OF AGENCY PROPERTY LOCATED NORTH OF LITTLE LEAGUE DRIVE, EAST OF 1-215 FREEWAY ("PROPERTY") I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Mayor and Common Council of the City of San Bernardino at a meeting thereof, held on the day of , 2006, by the following vote to wit: Council Members: Aves Navs Abstain Absent ESTRADA BAXTER MCGINNIS DERRY KELLEY JOHNSON MC CAMMACK 18 Rachel G. Clark, City Clerk 19 The foregoing resolution is hereby approved this day of ,2006. 20 21 22 Patrick J. Morris, Mayor City of San Bernardino 23 Approved as to Form: By J&~irt~ 24 25 -5- P:\A:"1ll.las\R'SI,Il~liulU\Rno""Mlns\2006\07.24-116 CeDlury Crow.1I (Siee 'roper1)) MCC ~so.do, 1 ! ~ 2 3 4 5 6 7 8 9 10 II '- 14 IS 16 17 18 19 20 21 22 23 24 25 to~Y RESOLUTION NO. RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (I) APPROVING THE 2006 D,ISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES, LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF AGENCY PROPERTY LOCATED NORTH OF LITTLE LEAGUE DRIVE, -EAST OF 1-215 FREEWAY - APPROXIMATELY 79 ACRES IN THE CITY OF SAN BERNARDINO ("PROPERTY") AND (2) MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY AND ADOPTING A MITIGATED NEGATIVE DECLARATION RELATED TO SAID DDA WHEREAS, the Redevelopment Agency of the City of San Bernardino (the "Agency") is a public body, corporate and politic existing under the laws of the State of California, Heal 12 and Safety Code 33101, and is charged with the mission of redeveloping blighted an 13 underutilized land; and WHEREAS, the Agency is the current owner of that certain real property consisting 0 approximately 79 acres located north of Little League Drive, east of 1-215 Freeway, (th "Property"); and WHEREAS, Agency agrees to sell the Property and the Developer agrees to purchase th Property in an AS IS condition for a purchase price ("Purchase Price") equal to not less th $4, I 00,000,00 or the fair market value, whichever is greater ("Fair MarKet Value"); and WHEREAS, the Agency is entering into a 2006 Disposition and Development Agreemen (the "DDA") with Century Crowell Communities, LP, (the "Developer") pursuant to which th Agency will sell the Property to the Developer for the Fair Market Value of the Property; and WHEREAS, the DDA provides for the development of the Property to be developed int approximately 279 single-family homes ranging in size between 1,900 square feet and 3,10 square feet on lots averaging 8,370 square feet but not less than 7,200 square feet (the "Project")' and -I- !':\AC~udas\JUfQlutjglll\Resolllliolll\20lWi\07-14-06 Clll'.....,. Cro..tI! tBke Properly) CDC RUG.doc '~_.,;o._ -14 WHEREAS, the Agency has prepared and published a notice of joint public healing il 2 The San Bernardino County Sun Newspaper un June 5, and June 12, 2006 regarding th 3 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 the Californi 4 5 Environmental Quality Act ("CEQA"); and WHEREAS, pursuant to Health and Safety Code Section 33433(c), the Agency ma 6 7 transfer the Property to the Developer subject to the Mayor and Common Council (th "Council") and Community Development Commission (the "Commission") adopting 8 9 Resolution authorizing the Agency to transfer the Property in light of the findings set fort herein, pursuant to Health and Safety Code Section 33433; and WHEREAS, the Agency has prepared a Summary Report pursuant to Health and Safety 10 II Code Section 33433 that describes the salient points of the DDA and identifies the cost of the 12 13 DDA to the Agency; and WHEREAS, the Agency is the "lead agency" for the Project, under CEQA, California Public Resources Code Sections 21 000, et seo., in accordance with Public Resources Code 15 Section 21067 and Title 14 California Code of Regulations Sections 15050 and 15051; and WHEREAS, the Initial Study (IS) and the Attachment to the Staff Report was circulate 16 17 18 on May 9,2006, and 7 public comments were received; and WHEREAS, the IS identified potentially significant effects on the environment 19 connection with the proposed Project and identified mitigation measures to reduce thes 20 potentially significant effects to less than significant levels; and WHEREAS, based on the potential significant affects on the environment, the Mitigatio Monitoring and Reporting Program (the "Monitoring Program"), Attachment to the Staff Repo 21 22 23 relative to the DDA between the Agency and the Developer to mitigate the potentially significan 24 affects on the environment has been prepared, and the Developer has agreed to implement suc 25 mitigation measures pursuant to said Monitoring Program; and .2- P:\A&t,"lu\RuoluIUllU\Rrsoll.ll;OIl.I\211116\tl7.Z4-116 Ctlu....y Crowtll (Siu PrliP"'I)) CDC Rtso.llo" .",.- 2 3 4 5 '- 14 WHEREAS, the Agency intends on adopting a Mitigated Negative Declaration wit respect to the Project in accordance with the provisions of CEQA and the CEQA Guideline developed thereunder; and WHEREAS, it is appropriate for the Commission to take action with respect to th disposition of the Property to the Developer by the Agency and to approve the DDA as set fort 6 in this Resolution. 7 NOW, THEREFORE, COMl\1UNITY DEVELOPMENT COMMISSION OF THE CITY 0 SAN BERNARDINO DOES HEREBY RESOLVE, DETERMINE AND ORDER, AS FOLLOWS: 8 9 Section 1. On July 24, 2006, the Commission conducted a full and fair joint publi 10 hearing with the Council, relating to the disposition of the Property from the Agency to th Developer and the development thereof pursuant to the DDA. The minutes of the Agenc Secretary for the July 24, 2006 meeting of the Commission shall include a record of al 11 12 communication and testimony submitted to the Commission by interested persons relating to th 13 public hearing and the approval of the DDA and the adoption of the Mitigated Negativ Declaration and Monitoring Program. 15 Section 2. The Commission hereby receives and approves the 33433 Report and th 16 other written materials submitted to the Commission at the meeting at which this Resolution i 17 adopted. The 33433 Report contains information required under Health and Safety Code Sectio 18 33433. 19 Section 3. This Resolution is adopted in satisfaction of the provisions of Health an 20 Safety Code Section 33433 relating to the disposition and the sale of the Property by the Agenc 21 to the Developer on the terms and conditions set forth in the DDA. A copy of the DDA in th form submitted at this joint public hearing is on file with the Agency Secretary. Commission hereby finds and determines that the disposition and redevelopment of the Propert by the Developer in accordance with the DDA is consistent with the Agency's Five Ye 22 23 24 25 Implementation Plan and that the consideration payable by the Developer to the Agency as th -3- P:\A~'Ad.I\RelillilalilllU\R,wl..lioWl\1G1l6\07-1.&-"6 C'uhlry Cro...eU (Bke Pruputyj CDC Rew.doc ',,-, purchase price for the Property, pursuant to the DDA, is an amount that is not less than the Fai 2 Market Value of the Property. 3 Section 4. The Commission hereby approves the DDA. The Executive Director i 5 hereby authorized and directed to execute the DDA on behalf of the Agency together wi nonsubstantive and conforming changes as may be recommended by the Executive Director an Agency Counsel. The Executive Director is hereby authorized to take all appropriate actions set forth in the DDA to implement the disposition and redevelopment of the Property. 4 6 7 8 Section 5. Prior to the opening of the joint public hearing at which this Resolution is 9 adopted, the Commission received the IS and the Monitoring Program for the Project and the Commission hereby adopts the Mitigated Negative Declaration and authorizes and directs the filing of the Notice of Determination with the County Clerk. 10 II Section 6. 12 11/ 13 11/ - 14 /11 15 11/ 16 /11 17 11/ 18 11/ 19 11/ 20 11/ 21 11/ 22 /11 23 /11 24 11/ 11/ 25 11/ The Resolution shall become effective immediately upon its adoption. -4. I P;\Ac,endllS\Resollllj,uu\BA!sollllillw\.Z006\07.%4-06 CeDIIll"Y Cl"lI....tll (Bke P(lIpeny) CDC &so.dllt - 2 3 4 5 6 7 8 9 10 II 12 13 ""'- 14 IS 16 17 18 19 RESOLUTION OF THE COMMUNITY DEVELOPMENT COMMISSION OF THE CITY OF SAN BERNARDINO (1) APPROVING THE 2006 DISPOSITION AND DEVELOPMENT AGREEMENT ("DDA") BY AND BETWEEN THE REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO ("AGENCY") AND CENTURY CROWELL COMMUNITIES, LP, A CALIFORNIA LIMITED PARTNERSHIP ("DEVELOPER") AND AUTHORIZING THE EXECUTIVE DIRECTOR OF THE AGENCY TO EXECUTE SAID DDA RELATING TO THE SALE AND DEVELOPMENT OF AGENCY PROPERTY LOCATED NORTH OF LITILE LEAGUE DRIVE, EAST OF 1-215 FREEWAY - APPROXIMATELY 79 ACRES IN THE CITY OF SAN BERNARDINO ("PROPERTY") AND (2) MAKING CERTAIN FINDINGS THERETO RELATED TO THE DEVELOPMENT OF THE PROPERTY AND ADOPTING A MITIGATED NEGATIVE DECLARATION RELATED TO SAID DDA I HEREBY CERTIFY that the foregoing Resolution was duly adopted by the Community Development Commission of the City of San Bernardino at a meeting thereof, held on the day of Commission Members: Aves Navs ESTRADA BAXTER MCGINNIS DERRY KELLEY JOHNSON MC CAMMACK 20 21 The foregoing resolution is hereby approved this 22 23 24 25 Approved as to Form and I,-egal Content: ~.~ /~' /) i~ By: \'"'''''' i 1- Agency e6 sel P:\Ai:~lIdu\ReSllUlliolU\RtwhllionJ\lG06\07.24--06 C'nlur) Cro...,U (Biee Proprn)) CDC Ruu.do, , 2006, by the following vote to wit: Abstain Absent Secretary day of ,2006, Patrick J. Morris, Chairperson Community Development Commission of the City of San Bernardino -5- REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'liARDINO INITIAL STUDY '- REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'liARDINO INITIAL STUDY FOR Disposition and Development Agreement (DDA) between Century Crowell Communities, LP and the Redevelopment Agency of the City of San Bernardino (Agency), for the sale of land for the ultimate development of 279 single family lots on 82 acres, 30.5 acres of park lands to be developed by the City of San Bernardino. and flood control improvements on 103.5 acres. The Agency will convey 79 acres of a 100 acre holding. The balance of the project will be located on lands currently controlled by the San Bernardino County Flood Control District. Altogether, the proposed project will consist of216 acres. PROJECT DESCRIPTION/LOCA TION: The proposed project site is located on the east side of Interstate 215, north of Little League Drive. The site consists of several irregular parcels totaling 216 acres. The Redevelopment Agency will enter into agreements, including a Disposition and Development Agreement with Century Crowell Communities, LP, who will subdivide 82 acres of the total acreage into 279 single family lots as well as lettered lots for streets, on 82 acres, consisting of 79 acres to be acquired from the Agency and 3 acres anticipated for acquisition from the San Bernardino County Flood Control District. In addition, the project includes 30.5 acres for public parks. Century Crowell will also mass grade the park lands, and the Agency will convey them to the City, which will be responsible for installation of park improvements. In order to protect and improve the Cable Creek channel, Century Crowell will also complete channel and debris basin improvements on approximately 103.5 acres of land to be retained under the ownership of the San Bernardino County Flood Control District. ,-"" The property is also known as Assessor's Parcel Numbers: 261-111-01, -21, -23, -25, -29, -30, -33, -35, -37, -40; 261-121-01, -02, -03, -08, -09, -13, -14; 261-131-04; 261-171-06: 261-451-01 through -48; and 261-461-01 through -66. This Initial Study addresses all known issues associated with the DDA. When a Tentative Tract Map is prepared, additional environmental review will be required by the City. DATE: May 8, 2006 PREP ARED 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 - 4. ~ '~....,~.. REDEVELOPl\IE~T AGEl'iCY OF THE CITY OF SAN BER.I'IIARDIl'iO 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 Repon (EIR) must be prepared. 1. Project Title: Disposition and Development Agreement between Century Crowell Communities LP and the Redevelopment Agency of the City of San Bernardino for the sale of land and ultimate development of 279 single family lots on 82 acres, 30.5 acres of park land to be improved by the City of San Bernardino, and 103.5 acres of flood control facility improvements within Cable Creek. 2. Lead Agency Name: Address: Redevelopment Agency of the City of San Bernardino 201 Nonh E Street, Suite 301 San Bernardino, CA 92401 3. Contact Person: Phone Number: Colin Strange 909-663-1044 Project Location (AddresslNearest cross-streets): East side of Interstate 215, nonh of Linle League Drive. Assessor's Parcel Numbers: 261-111-01, -21, -23, -25, "29, -30, -33, -35, -37, -40; 26]-121-01, -02, -03, -08, -09, -1.3, -14: 261-131-04; 261-171-06; 261-451-01 through -48; and 26 I -46] -0 1 through -66. 5. Project Sponsor: Address: Redevelopment Agency of the City of San Bernardino 201 Nonh E Street, Suite 301 San Bernardino, CA 9240 I 6. General Plan Designation: Low Density Residential and Low Density Residential 3.5. 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 consists of a Disposition and Development Agreement (DDA) between Century Crowell Communities LP, and the Redevelopment Agency of the City of San Bernardino (Agency) to convey 79 acres to Century Crowell Communities LP. Century Cro\vell \vill secure an additional 12 acres owned by the San Bernardino County Flood Control District, 3 acres of which will be used for the residential component of the project, and 9 acres of which will be used for the development of the park lands. Ultimately, the project will result in approximately 279 single family lots on 82 acres, as well as lots for streets, and 30.5 acres of park lands. Century Crowell will be responsible for mass grading of the 30.5 acres of park land, and the Agency will convey the mass graded park land to the City for development of the park. The City will subsequently improve the park lands. In addition, to secure the property against flooding from Cable Creek, immediately adjacent to the east, Century Crowell will improve] 03.5 acres of the Cable Creek channel, to IS 2 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER1\'ARDINO INITIAL STUDY '-- include bank improvements and a detention basin. No improvement plans for these facilities are available at the time of this v,Titing. Altogether, the ultimate development will impact a total of 216io acres. No General Plan Amendment, Change of Zone or Tentative Tract Map application has been submitted at this time. Century Crowell Communities LP will submit these applications to the City of San Bernardino subsequent to approval of the DDA, which will require review and approval by the City. Project descriptions indicate that the project is likely to be developed in phases. The Redevelopment Agency is the Lead Agency in preparation of this Initial Study. This Initial Study has been prepared based on information and plans available at this time. The City of San Bernardino will be the Lead Agency responsible for review of the Tentative Tract Map, and improvement of the 30.5 acres of park land. The City will determine what additional review is required under CEQA. 8. Surrounding Land Uses and Setting: The property is irregular in shape and orientation, and is bounded by Interstate 215 and Frontage Road rights of way on its south: vacant lands on its west and north; vacant lands and Cable Creek on its east and southeast. '..............- 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 Regional Water'Quality Control Board US Army Corps of Engineers 1..'5 Fish and Wildlife Service California Department of Fish and Game County of San Bernardino Department of Public Works-Flood Control: Approval of Sale/Transfer of Land; Permits for Cable Creek Flood Control Improvements IS 3 ..........." REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'\TARDINO INITIAL STUDY E]';VIRONMENTAL 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. D [gJ D D D D D Agriculture Resources [gJ Cultural Resources [gJ Hydrology / Water Quality D Noise D Recreation [gJ Mandatory Findings of Significance ~ Air Quality D Geology / Soils D Land Use / Planning D Population / Housing ~ Transportation / Traffic Aesthetics Biological Resources Hazards & Hazardous Materials Mineral Resources Public Services Utilities / Service Systems On the basis of this Initial Study, the City of San Bernardino Environmental Review Committee finds: D I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGA TIVE DECLARA. TlON will be prepared. [gJ 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. D I find that the proposed project tvlA Y have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. D I find that the proposed project MA Y have a "potentially significant impact" or "potentially significant unless mitigated" impact on the environment, but at least one effect 1) 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. D 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 DECLAR4. rIO>: pursuanllo applicable standards. and (bi have been avoided or mitigated pursu ,t to that EIR or NEGATIVE DECLARA.TlON, including revisions or mitigation easur hat r i e :poJl th proposed project, nothing further is required, 1- /. 5/9/06 Date Nicole Sauviat Criste Printed Name For IS 4 '-.--- - ,..-~ ll.... ~ TERRA NOVA @ SITE LOCATIO:'ll l~\'ore Road 1- 21S Flffway 279-I.ot Single famil~' Rf'si<kntial Dt'velopn~nl (IndudJnlf, A~c~' OMnc-d P"I~r1~ and Ctlun'~ Rood Obtrid pl'1lpcrtJ') Retained by Rede...lopment A~n<y for future Park Development (Includintt A~ 1.I"utcd rro~~' and e.u..,' Flood Oblr..:" pro~rf~') Unl. Lealu. 0.;\'0 City of San Bernardino Figure I - Project Location Map Plal10ing & Rcst:arch. Inc. 1\/ 4 [] REDEYELOPl\IE"T AGEl'iCY OF THE CITY OF SA" BERc'\ARDlNO Il\ITI.\L STuDY -- Less Than Potentially Significant Less Th an No Significant \Vith Significant Impact Impact Mitigation Impact Incorporation I. AESTHETICS - Would the project: a) Have a substantial adverse effect on a scenic D D (8J D vista as identified in the City's General Plan~ b) Substantially damage scenic resources, D D D (8J including but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway0 c) Substantially degrade the existing visual D D (8J D character of quality of the site and its surroundings0 d) Create a new source of substantial light or glare D D (8J D - which would adversely affect day or nighnime view in the area0 e) Other: D D D (8J Discussion: The proposed DDA will not, in and of itself, have any impact on aesthetics, light or glare, The ultimate development of 279 single family homes will result in one and .two story construction on the property, as well as 30,5 acres of park land, and 103.5 acres of flood control improvements to Cable Creek. The project site is relatively flat and occurs at the base of an alluvial fan which extends northeasterly from the project site. Lands to the east and north are at higher elevations than the proposed project site. Scattered residential development occurs to the east and northeast of the site. The foothills of the San Bernardino Mountains occur to the north and east of the project site, within 0.25 to one mile. Due to its relatively flat topography, and its occurrence at the relative low-point in the area. the development of the site will have little impact on viewsheds or vistas in the area. The project's location immediately north of the Interstate 215 right of way has the potential to negatively impact the viewsheds of homes within the project site. However, the project perimeter will be screened from view of this right of way by a perimeter wall, which will limit the potential visual impacts associated with the Interstate to less than significant levels. The parks and flood control improvements proposed will have negligible impacts on aesthetics, insofar as the lack of structures in these areas of the site will limit the perceived change from the existing natural condition. There are no significant trees, rock outcroppings or structures on the project site. IS 5 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER!'iARDINO I:\ITIAL STUDY .-- Development of '279 lots will result in lighting from landscape lighting, street lights. homes and light generated by vehicles. The project will be required to conform to the City's residential lighting standards, which limit the amount of light which can be installed on single family homes. The proposed park may include lighting. Should lighting bc proposed, it will be reviewed for conformance with the City's lighting standards. Further, the orientation of the park, at the southeast corner of the site and away from the residential land uses, will limit the potential impacts associated with lighting at this location. Impacts associated with light and glare are expected to be less than significant. '-' IS 6 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY ''-'' 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 0 0 0 ~ II. AGRlCUL TURE RESOURCES: b) Other: o o o ~ Discussion: Neither the proposed DDA nor the development of 279 single family homes, 30.5 acres of park land, or flood control improvements will have any impact on agricultural resources. All lands proposed for development are designated for urban or public land uses in the General Plan, and are not in agriculture. There are no Williamson Act contracts in effect on project lands. There are no agricultural lands in the vicinity of the project site, nor are any lands designated for agriculture in the area. - IS 7 REDEVELOPMENT AGENCY OF THE CITV OF SAN BER.."iARDINO 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 SCAQ\1D'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 L~ 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 279 single family homes, 30.5 acres of park land, and flood control improvements 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 expected to be consistent with the air quality management plans in place for the region. IS 8 REDEVELOP:\lEl'."T AGENCY OF THE CITY OF SAN BEAAARDINO INITIAL STUDY .~_.".,.... Construction Impacts The development of the site will include mass grading, which 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. It is not known whether grading of the site will result in a need for import or export of dirt to or from the site. Based on typical construction projects in the area, an estimate of grading equipment required has been developed. Once project grading plans have been completed, a more accurate representation of air quality impacts will be developed. Table 1 Grading Equipment Emissions - Diesel powered (pounds per day) # # hrsl Equipment Pieces day CO ROC NOx SOx* PM,. Tracked Tractor 2 8 1.29 2.90 23.24 2.24 1.06 Scraper 8 29.62 3.64 24.59 3.68 1.08 \Vheeled Loader 4 5.76 0.68 4.12 0.73 0.15 Motor Grader ~ 8 29.96 3.52 22.00 1.38 0.90 - "'- Miscellaneous 8 30.62 3.60 22.48 114 0.92 Total: 97.25 14.3 96.43 9.17 4.11 SCAQMD Thresholds of Significance 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. Based on this analysis, the development of the project site would not exceed SCAQMD thresholds of significance during the grading and site preparation process. Impacts are therefore expected to be less than significant. The project site can be subject to significant winds, which can transport dust, including particulate matter of 10 microns or less (PMIO). The following Table illustrates the potential fugitive dust which could be generated at the project site during mass grading operations. Table 2 Calculations of Fugitive Dust Potential Total Acres to be Disturbed at Buildout* 216 Factor (Ibs./day/acre) 26.4 Total Potential Dust Generation (Ibs./day) 5.702.4 Source: Table A9-9, "CEQA Air Quality Handbook," prepared by South Coast Air Quality Management District, April 1993. IS 9 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER,"'ARDIC'lO INITIAL STUDY "-- 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 development of 279 single family homes has the potential to generate 2,670 average daily trips 1 In addition to the homes, the park will also generate trifs, and therefore associated air. emissions. The park can be expected to generate 370 tnps on a Saturday . Therefore, the total trIps which could ocCur from the project site would be 3,040 trips per day. Although the park emissions will be periodic, insofar as the park will experience most of its activities on weekend days, this analysis assumes a worst case scenario, and analyzes the total emissions of both uses. On this basis, the following Table illustrates the anticipated daily emissions associated with project buildout. Total No. Vehicle TripslDay Table 3 Moving Exhaust Emission Projections at Project Buildout (pounds per day) Ave. Trip Length (miles) 10 ROG 42.0 Total Pollutant Pounds SCAQMD Daily Threshold 3.040 CO 389.7 x = miles/day 30,400 PMlO -- NOX 41.4 SOX 03 3.5 550.0 100.0 75.0 150.0 150.0 URBEBMIS Version 2.2 Scenario Year 2006 - Model Years 1965 to 2006 Pollutant - Vehicle CO NOX 0.013925 0.001489 ROG SOX 0.001497 0.000009 PMIO 0.000114 As demonstrated in the Table, buildout of the proposed project will not exceed SCAQMD thresholds of significance. Impacts associated with long term operation of the project will have less than significant impacts on air quality. 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 "Trip Generation, 7lh Edition," prepared by the Institute of Transportation Engineers, for single family detached homes. 2 Ibid. Category 412, County Parks (trip generation rate for a Saturday not provided for category 411, City Park, so the County Park generation rate was used.). IS 10 - l. 2. 0 ~. 4. 5. 6. 7. ....--- REDEVELOPMENT AGENCY OF THE CITY OF SAN BERJ"IARDINO INITIAL STUDY No m(lre than an area equivalent to 10 acres shall be actively graded in anyone day. 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. All trucks leaving the site shall be washed off to reduce fugitive dust being tracked onto local roadways. Any portiol')f the site to be graded shall be pre-watered to a depth of three feet prior to the onset of grading activities. Any area which remains undeveloped for a period of more than 30 days shall be stabilized using either chemical stabilizers or hydroseed on the affected portion of the site. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction-related dirt on approach routes to the site. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IS 11 Discussion: The proposed DDA will not, in and of itself, have any impact on biological resources. The den:lopment of 279 homes. 30.5 acres of park land, or flood control impro\'ements to be constructed on the site, however, have the potential to impact biological resources. A biological survey was completed IS 12 REDEVELOPMENT AGE:'\'CY OF THE CITY OF SAN BER."iARDINO INITIAL STUDY '-- for the project site, including the flood control property] The survey included trapping studies for the San Bernardino Kangaroo Rat in 2003, 2004 and 2005. Focused surveys were also conducted in 2005 for sensitive plants, and coastal California gnatcatcher. The survey found that the site has been partially disturbed by dumping, off road vehicle use, and bee keeping. The survey of the site included the identification of three plant communities: Riversidian alluvial fan sage scrub, California annual grassland, and Riversidian sage scrub. Riversidian alluvial fan sage scrub is considered a sensitive plant community, and the potential impacts associated with the proposed project could be significant without the implementation of mitigation measures. The site. including the Cable Creek portion of the project, contains 127.5 acres of such habitat. A total of eight sensitive species have been observed on the site: San Diego horned lizard, loggerhead shrike, San Bernardino kangaroo rat, Northwestern San Diego pocket mouse, San Diego desert woodrat, Los Angeles pocket mouse, Black-tailed jackrabbit, and Parry's spineflower. The 2005 focused surveys were negative for all surveyed species. The site is designated, however, as critical habitat for both the San Bernardino kangaroo rat and the coastal California gnatcatcher. Mitigation measures must be implemented to assure that potential impacts to these species are reduced to less than significant levels. -- The site was found to contain Los Angeles pocket mouse. Impacts to this species could be significant without the implementation of mitigation measures. Development of the site will include improvements to Cable Creek. The creek is likely to contain waters of the US, and fall under the jurisdiction of both the US Army Corps of Engineers and the California Department of Fish and Game. These agencies will require permitting. and appropriate mitigation of impacts to species and communities of concern. Mitigation measures must be implemented to reduce potential impacts to less than significant levels. The project site is not within any area designated for wildlife corridors. In order to assure that impacts to biological resources are reduced to less than significant levels, the following mitigation measures shall be implemented: 1. Removal of trees and shrubs should occur on the site outside of the bird nesting season. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February through August 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. J "Biological Resource Assessment Rolling Hiils Ranch Country View Estate::>..." prepared by \lICl1a~1 Brandman Associates, July 2005. IS 13 "-- REDEVELOPMEl'iT AGEl'iCY OF THE CITY OF SAN BERNARDINO INITiAL STUDY "- 2. 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. The project proponent shall mitigate impacts to Riversidian alluvial fan sage scrub habitat to the satisfaction of the California Department of Fish and Game and the US Fish and Wildlife Service. It is expected that up to 127.5 acres will need to be preserved off-site. A Section 7 consultation shall be undertaken ,"vith the US Fish and Wildlife Service, in conjunction with the preparation of US Army Corps 404 permining, for San Bernardino kangaroo rat and coastal California gnatcatcher, prior to the issuance of a grading permit. An exclusion fence will be placed around the impact area for kangaroo rat as determined necessary by a qualified biologist. Trapping will be conducted within this area within 30 days of initiation of any ground disturbing activity in this impact area. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. A qualified monitor shall be present during all ground disturbing activities of areas suitable for habitat for the San Bernardino kangaroo rat. The monitor will be empowered to stop building activities to avoid take of the species, and to assure compliance with the incidental take authorization for the project. Off site mitigation of San Bernardino kangaroo rat habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. Off site mitigation of coastal California gnat catcher habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. Los Angeles pocket mouse shall be trapped concurrently with the kangaroo rat trapping undertaken in mitigation measure 5, above. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. 3. 4. 5. 6. 7. 8. 9. With the implementation of these mitigation measures, the potential impacts associated with biological resources will be reduced to less than significant levels. IS 14 REDEVELOPME:"T AGENCY OF THE CITY OF SAN BER'\'ARDINO INITIAL STl1DY """~ V. CULTUR\L 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 S 15064.5 of CEQA? c) Cause a substantial adverse change in the significance of a historical resource as defined in S I 5064.5 of CEQA 0 d) Directly or indirectly destroy a unique paleontological resource .or site or wlique geologic feature0 ~ 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 0 [8J 0 0 0 [8J 0 0 o [8J o o o [8J o o o o o [8J o D o [8J Discussion: The proposed DDA will not, in and of itself, have any impact on cultural resources. The ultimate development of 279 homes, 30.5 acres of park land, or flood control improvements on the site, however, will disturb lands with the potential for such resources. A cultural resource survey was conducted for the proposed project'. The survey included both records searches and field inspections of the project site. The records search identified a number of previously identified resources in the vicinity of, but not on, the project site. The on site survey conducted on the project site identified no culturally significant resources in the area to be impacted by the proposed project. The proximity of other sites, however, led to a determination that there is a moderate potential for cultural resources to be unearthed during earth moving activities on the site. In order to assure that impacts to these resources are reduced to less than significant levels, mitigation measures must be implemented. The cultural resource study also included an analysis of the potential for paleontological resources on the site. No on site analysis was conducted. The analysis of soil types concluded, however, that Pleistocene fan deposits occur on the project site, and that these deposits have a high potential sensitivity 4 "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project.." prepared by Michael Brandman Associates, June 2005. IS 15 ..,"~ REDEVELOPMEl'iT AGENCY OF THE CITY OF SAN BER:"ARDINO INITIAL STUDY for paleontological resources. In order to assure that impacts to these resources are reduced to less than significant levels, mitigation measures must be implemented. 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 cultural and paleontological resources are mitigated to less than significant levels, the following mitigation measures shall be implemented. - I. A qualified archaeological monitor shall be on site during all excavation and trenching activities on the project site, until such time as the monitor determines that the probability for location of artifacts is low. The monitor shall be empowered to stop or redirect earthmoving activities. Any resources identified on the site shall be properly catalogued and curated. The monitor shall prepare a report of all findings and deliver same to the City Planning Department within 30 days of the end of monitoring for review and approval. A qualified paleontological monitor shall be on site during excavation and trenching on the site, in conformance with the requirements of the "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. 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 Planning Department within 30 days of completion of earthmoving activities for review and approval. 2. 3. With implementation of these mitigation measures, impacts associated with cultural resources will be reduced to less than significant levels. IS 16 REDEVELOPMENT AGENCY OF THE CITY OF SAN BE~I\ARDINO 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 andlor fill) based D D [2J D on information included in the Project Description Form'; b) Expose people or structures to potential D D [2J D substantial ad\'erse effects. including the risk of loss. injury, or death" c) Be located within an Alquist-Priolo Earthquake D D [2J D Fault Zone" d) Result in substantial soil erosion or the loss of D D ~ D topsoil" "~ c) Be located within an area subject to landslides. D D [2J D mudslides, subsidence. or other similar hazards as identified in the City's General Plan" f) Be located within an area subject to liquefaction D D ~ D as identified in the City' s General Plan" g) Modif)' any unique physical feature based on a D D [2J D site surwy/evaluation'J h) Result in erosion, dust. or unstable soil D D [2J 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. Geology and soils may have an impact on the ultimate development of the 279 single family homes, 30.5 acres of park land, or flood control improvements on the property. A preliminary geotechnical study was prepared for the proposed projectS, and is used as the basis for the discussion below. The site is not located within the boundaries of an Alquist Priolo Earthquake Fault Zone. However. the site is located immediately southeast of such a Zone. Groundshaking on the property during a significant "Geotechnical IIl\'tstigarion Proposed Residential Development. ." prepared by Sladden Engineering, July 2004. IS 17 REDEVELOPMENT AGENCY OF THE CITY OF SAN BE~"iARDINO INITIAL STUDY -,.,~.- seismic event can be expected to be significant. The City will require that all construction on the project site meet or exceed seismic standards included in the Uniform Building Code. This standard requirement will assure that potential impacts associated with groundshaking will be reduced to less than significant levels. The site is located in a high wind area as designated by the General Plan, and could be subject to wind erosion, especially during construction of the proposed homes. The mitigation measures included in the Air Quality section, however, are designed to lessen impacts associated with wind erosion to less than significant levels. The site will also be subject to erosion associated with storm water while under construction. The City enforces the requirements of NPDES to assure that construction sites do not negatively impact storm water. These standard requirements will be applied to the proposed project. and will include the preparation of a Storm Water Pollution Prevention Program (SWPPP) which includes best management practices to be implemented during construction. These requirements are designed to assure that potential impacts associated with water erosion are reduced to less than significant levels. The site is not likely to be subject to liquefaction hazards, due to the depth to groundwater. The geotechnical borings performed on the project site did not encounter water at depths of up to 51 feet, and the geotechnical study estimates that groundwater is at a depth of 70 feet or more in this area of the City. '- The site is not located adjacent to significant slopes or rock outcroppings, nor is it composed of hillsides, and is not expected to be subject to landslides. Overall geology and soils impacts associated with the buildout of the proposed project are expected to be less than significant. IS 18 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER'lARDINO INITIAL STUDY - Less Than Potentially Significant Less Th an No Significant With Significant Impact Impact M ~ligation Impact Incorporation VII. HAZARDS AND HAZARDOUS MATERIALS - Would the project: a) Create a significant hazard to the public or the 0 0 0 ~ environment through the routine transport, use, or disposal of hazardous materials~ b) Create a significant hazard to the public or the 0 0 0 ~ environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous 0 0 0 ~ or acutely hazardous materials, substances, or - waste within one-quarter mile of an existing or proposed school0 d) Be located on a site which is included on a list 0 0 0 ~ 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 0 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 0 0 0 ~ with an adopted emergency response plan or emergency evacuation plan? g) Expose people or structures to a significant risk 0 0 ~ 0 of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? IS 19 REDEVELOP!\IE:"T AGENCY OF THE CITY OF SAN BEIU';ARDINO INITIAL STUDY "'-- Potentially Significant Impact Less 10 an Significant With Mitigation Incorporation Less Th an Significant Impact No Impact VII. HAZARDS AND HAZARDOUS MATERIALS - Continued h) Other: o o o l2J Discussion: The DDA, in and of itself, will have no impact on hazardous materials. The buildout of the site will result in the construction of single family homes, which will store only small quantities of hazardous materials associated with housekeeping and gardening. These materials will be disposed of through household hazardous waste programs implemented by the City and third parties in the area. Impacts are expected to be less than significant. A Phase I Site Assessment was prepared for the proposed project site, to identify potential hazardous materials on the site6 The Phase I study did not identify previous use of the property. or the location of hazardous materials on the property. The site is not identified as havinl! been affected bv hazardous materials in the state and federal -- databases compiled for this purpose. The proposed proj~ct is not within the boundaries of an airport land use plan. The site is located in a Fire Hazard Area, and is identified as having a Moderate risk for wildland fires. The project proponent .will be required to implement fire prevention measures identified by the Fire Marshal during review of the Tract Map for the project. These programs are designed to lower the potential impacts associated with wildland fires to less than significant levels. Overall impacts associated with hazards and hazardous materials are expected to be less than significant. "Results of Phase I Environmental Site Assessment Proposed Residential Development Bice Property.." prepared by Protcrra Consulting, Inc., July 2004. IS 20 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERt"iARDINO 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 ~ D discharge requirementsry b) Substantially deplete groundwater supplies or D D ~ 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)0 ""- Substantially alter the existing drainage D D ~ D c) panern 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-site0 d) Substantially alter the existing drainage D ~ D D panern 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 ~ 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 21 REDEVELOPME1\"T AGENCY OF THE CITY OF SA)\' BE~"IiARDI~O I1\"ITlAL STUDY ~ Less Than Potentially Significant Less Than No Signific3nt With Significant Impact Impact Mitigation Impact Incorporation VIII. HYDROLOGY AND WATER QUALITY- Continued 0 Otherwise substantially degrade water 0 0 ~ 0 quality? g) Place housing within a lOa-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 lOa-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 of loss, injury, or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? 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 ultimate development of the site for residential units has the potential to be significantly impacted by hydrology, without mitigation. The development of the site will also result in the consumption of domestic water for residential purposes. The site will utilize domestic water for landscaping and for interior uses. The ultimate development of 279 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 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. Impacts are expected to be less than significant. The project site is located within a 100 year flood plain, as determined by FEMA, and identified in the General Plan. The floodplain area is associated with the location of Cable Creek immediately north of thc project site. Flood control improvements are proposed to protect the residential area from storm IS 22 REDEVELOPME~T AGENCY OF THE CITY OF SAN BER'\ARDI1\O INITIAL STUDY '-' flows. The project. proponent will be required to prepare hydrology analyses which demonstrate that with improvements. the land can be made safe from flood hazards. The City Engineer will review the plans submitted, and assure that the designs provide for sufficient improvements to meet the City's standards. Without implementation of mitigation, the impacts associated with hydrology could be significant. The City and state. as previously stated, require the preparation of S\VPPP, 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 mmmer. The project site is not subject to tsunami or seiche. In order to mitigate the potential impacts associated with flooding and flood zones within the project site, the following mitigation measure shall be implemented: 1. Prior to approval of the Tentative Tract Map, the project proponent shall secure approval from the City Engineer of a Preliminary Hydrology Study and associated hydraulic analysis which demonstrates what improvements are required to remove the subject property from the 100 year flood plain. The City Engineer, may, at his discretion, require that the project proponent also secure a Conditional Letter of Map /\Jnendment, or Letter of Map Amendment. from FE\lA. All plans for improvements within Cable Creek shall also be reviewed and approved by the San Bernardino Flood Control District. --- \\'ith implementation of this mitigation measure. impacts associated with hydrology will be reduced to less than significant levels. IS 23 REDEVELOP!\IENT AGENCY OF THE CITY OF SAN BER"iARDINO INITIAL STUDY "'- IX. LAND USE AND PLANNING - Would the project: a) Physically divide an established community" b) Conflict with any applicable land use plan, 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) Conflict with any applicable habitat consen'ation plan or natural community conservation plan" d) Be developed within the Hillside Management Overlay District" e) Be developed within Foothill Fire Zones A, B, or C as identified in the City's General Plan" f) Be developed within the Airport Influence Area as adopted by the San Bernardino International Airport Authority? g) Other: Potentially Significant Impact Less Th an Significant With Mitigation Incorporation Less Than Significant Impact No Impact ~ ~ ~ ~ o ~ ~ Discussion: The DDA will not, in and of itself have any impact on land use planning. The site is currently vacant, and surrounded by scattered residential and vacant lands. There will be no displacement of an established community. o o o o o o The ultimate development of the single family homes, 30.5 acres of park lands, and flood control improvements will require a General Plan Amendment and Change of Zone from the City of San Bernardino. The General Plan Amendment and Change of Zone will be required to change the current RL land use designation to RS, allowing the development of 7,200 square foot lots within the project. In addition, the 30.5 acres proposed for park land will require a Public Park designation. The future General Plan Amendment and Change of Zone are expected to be compatible with land use designations currently surrounding the site. Park lands are designated southeasterly of the project site. Residential density surrounding and to the north of the project site include progressively less dense single family IS 24 o o o o o o o ~ o o o o o o o REDEVELOPMENT AGENCY OF THE CITY OF SAN BER."iARDINO INITIAL STUDY '-- residential designations. The project site is located immediately adjacent to the 1-215 freeway. Should the RS designation be applied, the proposed project will provide a buffer for RL and RL 3.5 lands located to the north and northwest of the project site. The General Plan Amendment and Change of Zone are supported by policies of the General Plan Land Use Element, including policies 2.1.3, 2.2.2, 2.5.6, 2.7.1 and the strategies of the Verdemont Heights Area Plan. As previously stated, the proposed project will be required to implement fire protection measures consistent with requirements for fire hazard areas. 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. "',~ IS 25 REDEVELOPME~TAGENCY OF THE CITY OF SAN BER.'\ARDINO INITIAL STUDY "~'- Less Than Potentially Significant Less Th an No Significant With Significant Impact Impact Mitigation Impact Incorporation X. MINER.-\L RESOURCES - Would the project: a) Result in the loss of availability of a known 0 0 0 [gJ 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 0 0 0 [gJ 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 0 0 0 [gJ 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 26 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'\IARDINO INITIAL STUDY "~-~"-,. Less Than Potentially Significant Less Th an 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 [gJ 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 [gJ excessive ground borne vibration or groundborne noise levels? c) A substantial permanent increase in ambient 0 0 [gJ 0 noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in 0 [gJ 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 [gJ 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 [gJ Discussion: The DDA will not, in and of itselt~ affect noise levels in the project area. The ultimate development of single family homes and the park lands will affect noise levels, both from construction and operation of the project. In addition, the location of the project site adjacent to the Interstate 2 I 5 right of way has the potential to impact noise levels in the residential yards, and within the homes themselves. In order to determine the potential impacts associated with noise at the site, a noise study was prepared'. Construction Noise Construction of the proposed project will temporarily increase noise levels in the area. The City will regulate the construction hours on the site to daytime hours, when impacts are less noticeable due to higher ambient noise levels. However, noise levels from construction equipment can be significant, and could impact surrounding sensitive receptors, such as homes which occur in the area surrounding the 7 "Noise Impact Analysis Bice Property Residential Development," prepared by LSA, August 2005. IS 27 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER."iARDINO INITIAL STUDY ....""'...... project site. In order to assure that construction impacts are reduced to less than significant levels, the noise study recommends the implementation of mitigation measures. Off-Site Traffic Noise The traffic generated by vehicles resulting in development of the site have the potential to increase noise levels on surrounding roadways, and affect sensitive receptors. The study analyzed traffic noise levels on the 1-215 freeway, Linle League Drive, Palm A venue and other roadways in the area surrounding the proposed project. Existing noise levels without construction of the project were compared to those which would be expected with the addition of project-related vehicle trips. This analysis found that the operation of the proposed subdivision will not impact sensitive receptors, although noise levels on Kendall south of Linle League Drive will increase 5.1 dBA within the road right of way. The impact to surrounding residents will therefore be less than significant. On-Site Traffic Noise Existing and future traffic noise on 1-215 and surrounding City roadways have the potential to impact the residents of the project when it is developed. The study analyzed the potential impacts of traffic noise on these roads, and found that the City street noise levels would not result in significant impacts on the project site, primarily due to the distance from Linle League Drive to the project site (streets immediately adjacent to the project do not have high noise levels). The analysis found that noise levels generated on 1-215 will impact' lots along the southern property line of the project, without the - implementation of mitigation measures. The study also analyzed the level of mitigation required to lower the noise levels to the City's acceptable noise level of 65 dBA CNEL on the ground floor of structures within the project, and found that wall heights of 6 to 10 feet will be required to mitigate the ground floor condition. The analysis further considered the potential impacts of noise from potential second stories along the property boundary, and found that noise levels would exceed the City's standard. This analysis further found that building upgrades are necessary to assure that the second floor interior noise levels do not exceed the City's 45 dBA CNEL. Impacts associated with off-site traffic noise on project houses are therefore significant, and must be mitigated. In order to mitigate noise impacts to less than significant levels, the following mitigation measures are required: I. All construction equipment shall be equipped with properly operating mufflers. 2. All stationary construction equipment shall be directed away from sensitive receptors near the project site. 3. Construction staging areas shall be located as far away from sensitive receptors as possible. 4. A sound wall of 6 to 10 feet, as delineated in Table M of the Noise Impact Analysis cited below, shall be constructed along the project frontage on 1-215. 5. If second floor balconies or decks are proposed for any home adjacent to the 1-215 right of way, facing the right of way, a solid barrier of at least 5 feet shall be provided on the perimeter of the balcony or deck. 6. Second floor bedroom windows shall be equipped with double-paned windows with a minimum sound transmission class of STC-28 to STC-34. 7. Mechanical ventilation shall be provided for all homes within 2,200 feet of the centerline of 1-215. IS 28 REDEVELOPME:'\T AGE;\CY OF THE CITY OF SA:\' BER.'\IARDINO INITIAL STUDY """'"".....- The development of single family homes is not expected to generate groundborne vibration or groundborne noise levels. The site is not within the Airport Influence luea. With implementation of mitigation measures, impacts associated with noise will be reduced to less than significant levels. "", '>~' IS 29 REDEVELOPI\1E~T AGENCY OF THE CITY OF SA~ BERNARDINO INITIAL STUDY 'V",...- Potentially Significant Impact Less Than Significant With Mitigation Incorporation Less Than Significant Impact No Impact XII. POPULATION AND HOUSING - \Vould the project: a) Induce substantial population grov-.1h in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure )? o o o [gJ b) Remove existing housing and displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? o o o [gJ c) Other: o o o [gJ '"-,,, Discussion: The DDA will have no impact on population and housing. The site is currently vacant, and no existing housing will be removed by development of the project. Impacts associated with population and housing are expected to be negligible. IS 30 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'\IARDINO INITIAL STUDY ,- Less Th2n Potentially Significant Less Th an 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 serVIces: Fire protection, including medical aid~ 0 0 [gJ 0 Police protection" 0 0 [gJ 0 Schools? 0 0 [gJ 0 ,......~ Parks or other recreational facilities? 0 0 [gJ 0 Other goverrunental services? 0 0 [gJ 0 b) Other: 0 0 0 [gJ Discussion: The DDA will have no impact on the provision of public services. The buildout of the proposed project will result in an increase in demand for public services, which will be offset by the sales and property tax generated by the homes and their occupants. The project site was the subject of an agreement with the San Bernardino City Unified School District in 1991 which waived the payment of school fees for up to 245 dwelling units. The provisions of this agreement will apply to the proposed project. Therefore, the project proponent will be required to pay school impact fees for 34 units at the time of issuance of building permits. Overall impacts associated with public services are expected to be less than significant. IS 31 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY Potentially Significant Impact Less Th an Significant With Mitigation Incorporation Less Th an Significant Impact No Impact XIV. RECREATION a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? o o o [gJ b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? c) Other: o o o [gJ o o o o .'^--'""~ Discussion: The DDA will have no impact on recreation facilities in the City. The project includes 30.5 acres of park land to be conveyed by the Agency to the City. which will be responsible for its development. These park lands will be available to the public, increasing the recreational opportunities available to surrounding residents. Impacts to recreation in the City are expected to be insignificant. IS 32 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER.'\IARDINO INITIAL STUDY Less Th an Potentially Significant Less Than No Significant With Significant Impact Impact 1v1 itigation Impact Incorporation XV. TRANSPORTATIONrrR-\FFIC - Would the project: a) Cause an increase in traffic which is substantial 0 0 [gJ 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 [gJ 0 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 panerns, 0 0 0 [gJ 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 [gJ feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? 0 0 [gJ 0 f) Result in inadequate parking capacity? 0 0 0 [gJ g) Conflict with adopted policies, plans. or 0 0 0 [gJ programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? h) Other: 0 0 0 [gJ Discussion: The DDA, in and of itself, will have no impact on traffic and circulation in the City. The ultimate development of the site for 279 single family homes and park lands will result in vehicle trips which have the potential to impact local roadways. IS 33 REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO INITL-\L STUDY "",,,,,,,...- A traffic analysis was prepared for the residential component of the proposed project8 The study included analysis of current conditions, opening project year conditions, and 2030 conditions. The study analyzed the impacts on eight intersections, as follows: I. 1-215 SB Ramps@Palm 2. 1-215 NB Ramps@Palm 3. Kendall Drive @ Linle League 4. Kendall Drive @Palm 5. Belmont Ave. @Linle League 6. Belmont Ave. Palm 7. Meyers Road @ Palm 8. Highway 215 Frontage Road @ Linle League The analysis of current conditions found that under current conditions, all studied intersections operate at acceptable levels of service (LOS) during the AM and PM peak hour. Under the opening year scenario, without the proposed project, the 1-215 NB Ramps at Palm operate at LOS E in the PM peak hour, while all other intersections operate at LOS D or better. With the addition of the proposed project in its opening year, both the north and south bound ramps of 1-215 at Palm operate at LOS D or worse during both the AM and PM peak hour. All other intersections studied are estimated to operate at LOS D or bener during that same time period. For the 2030 horizon year, the studied intersections all operate at acceptable levels of service, both without and with the proposed project. ",~^..."...- The proposed park lands will experience their highest levels of activity on weekends and evenings, whe'n the local street and freeway system is less impacted. The highest number of trips expected to be generated (370 daily trips on Saturdays), are not expected to significantly impact local roadways. The proposed project, as described above, will have an impact on traffic levels at the 1-21 5 interchange at Palm Avenue in the short term (both ramps). The project's contribution to the deficiency was determined to be 8% for the southbound ramps, and 9% for the northbound ramps. The traffic study found that the signalization of the ramps is required to mitigate the impacts of the deficient level of service. In order to reduce the potential impact to these two intersections to less than significant levels, the following mitigation measure is required. I. The project shall contribute its fair share to the signalization of the northbound and southbound ramps ofI-215 at Palm Avenue. I ne proposed project does not involve air traffic, and WIll tnerefore have no impact on air traffic panerns. The design of streets will be reviewed and approved by the City Engineer to ensure safe operations. The proposed project will be required to 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. 8 "Traffic Impact Analysis to Evaluate the Traffic Circulation.." prepared by Transtech Engineers, June 2005. IS 34 REDE\'ELOP:\fEl\T AGENCY OF THE CITY OF SAN BERNARDINO INITIAL STUDY '.. ....,~.". 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 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 gro....1h on area landfills. Overall impacts associated with utilities are expected to be insignificant. IS 36 REDEVELOP:\1E:'oiT AGE:-;'CY OF THE CITY OF SAN BERNARDINO INITIAL STl'DY ,.;-~ Potentially Less Than Less Th an 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 [gJ 0 0 the quality of the envirorunent, 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 [gJ -~..-" 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 [gJ 0 0 which will cause substantial adverse effects on human beings, either directly or indirectly? Discussion: The DDA will have no impact on biological or cultural resources, on cumulative impacts, or on human beings. The buildout of the project will impact biological and cultural resources, but these impacts 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 through impacts to air quality and noise. Mitigation measures included in this Initial Study, however, will reduce these potential impacts to less than significant levels. IS 37 REDEVELOPMENT AGENCY OF THE CITY OF SAN BER:-;ARDINO 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 5. 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 8. Public Works Standard Requirements - Grading 9. "Traffic Impact Analysis to Evaluate the Traffic Circulation..." prepared by Transtech Engineers, June 2005. 10. "Noise Impact Analysis Bice Property Residential Development," prepared by LSA, August 2005. 11. "Results of Phase I Environmental Site Assessment Proposed Residential Development Bice Property..." prepared by Proterra Consulting, Inc., July 2004. 12. "Geotechnical Investigation Proposed Residential Development..." prepared by Sladden Engineering, July 2004. 13. "Phase I Cultural Resources'Survey of the Rolling Hills Ranch Country View Estates Project.." prepared by Michael Brandman Associates, June 2005. 14. "Biological Resource Assessment Rolling Hills Ranch Country View Estates..." prepared by Michael Brandman Associates, July 2005. IS 38 . REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO Response to Comments Initial Stndy for the Disposition and Development Agreement (DDA) between Centnry Crowell Commnnities, LP and the Redevelopment Agency of the City of San Bernardino The Agency received two letters in response to the above referenced Initial Study. One from the California Department of Transportation (CalTrans), and one from the California Department of Toxic Substances Control (DTSC). In addition, the Agency received transminals from the Governor's Office of Planning and Research, State Clearinghouse and Planning Unit, reporting on the comment period and anaching the two letters from the agencies cited above. All correspondence is attached. The comments made by CalTrans and DTSC are addressed individually below. Department of Toxic Snbstances Control The Department incorrectly states that the MND does not identify potentially contaminated sites within the project area. Page IS 20 specifically states: "The site is not ident(fied as having been affected by hazardous materials in the state and federal databases compiledfor this purpose. " Comments 3) through 9) address requirements for conducting investigations and remediating contaminated soils. Since it has been determined that no contamination has occurred on the site, these comments do not apply. Comments 10) and I I) refer to the need for an NPDES permit. The permit will be required for the construction of the project. As stated in the Initial Study, the proposed project will be required to undergo further environmental review when a project is submitted to the City. The City will require compliance with NPDES standards as part of its standard requirements. This will include best management practices to address potential contamination. Comment 12) addresses the site's potential use for agricultural purposes. The site has not been in agriculture, as stated in the Initial Study, and therefore the requested investigation does not apply. Department of Transportation CalTrans notes that the current right of way of the \-215 may be insufficient, and that the project should be designed with a 40 foot landscaped buffer to allow for future right of way acquisition; that the project should be responsible for the installation of the traffic signal at the 1-215Palm intersection; and that the Traffic Study should be consistent with the requirements of the Congestion Management Plan (CMP). REDEVELOPMENT AGENCY OF THE CITY OF SAN BER."IARDINO As stated in the IS, the Development Agreement is the project currently being considered under CEQA. As required by CEQA, the Initial Study addresses the potential build out of the project in concept, since it is known that the Development Agreement would result in the development of a residential subdivision on the site. The project has not been designed, and will require review and approval by the City in the future. Project-specific issues will be considered by the City at that time, and it will determine, through further environmental review, what impacts the project will have on the circulation system, including the need for additional right of way and traffic signals. The City will also require the preparation of a traffic impact analysis. The City regularly requests the preparation of CMP-compliant traffic studies, and the City will require it at the time the project is submitted for review. Conclusion Comments made by CalTrans and the DTSC generally affect the actual development of the project site, not the implementation of the Disposition and Development Agreement. None of the comments affect the conclusions of the Initial Study, or require that the mitigation measures proposed be amended. 2 ,,\ I ~~ .,~~ Department of Toxic Substances Control @....-:-:.--.., .~. ~I ~ ,..... . . .,:....,. ' Dan Skopec Acting Secretary Cal/EPA Maureen F. Gorsen, Director 5796 Corporate Avenue Cypress. California 90630 Arnold SctlWarzenegger . Go~ernor '-'..1 c; ., May 24, 2006 ~ "" ~_.i .-' r- Lv Mr. Colin Strange Redevelopment Agency of the City of San Bernardino 201 North E Street, Suite 301 San Bernardino, California 92401 MITIGATED NEGATIVE DECLARATION (MND) FOR A DISPOSITION AND DEVELOPMENT AGREEMENT RESULTING IN THE CONSTRUCTION OF 279 SING LE FAMILY HOMES, A 7.5 ACRE PARK, A 5.5 ACRE PARK, AND A 14 ACRE SOCCER PARK ON 91.75 ACRES IN THE CITY OF SAN BERNARDINO (SCH# 2006051052) Dear Mr. Strange: The Department of Toxic Substances Control (DTSC) has received your submitted Mitigated Negative Declaration (MND) for the above-mentioned project. The following project description is stated in your document: "The project consists of a Disposition and Development Agreement (DDA) between Century Crowell Communities LP, and the Redevelopment Agency of the City of San Bernardino (Agency) to convey 91.75 acres to Century Crowell Communities LP, which will develop approximately 279 single family lots, as well as lots for streets, a 7.5 acre park, a 5.5 acre park, and a 14 acre soccer park through the preparation and approval of a Tract Map to be submitted to the City of San Bernardino" Based on the review of the submitted document, DTSC has comments as follow: 1) The MND should identify and determine whether current or historic uses in the Project area may have resulted in any release of hazardous wastes/substances. The MND states: "A Phase I Site Assessment was prepared for the proposed project site, to identify potential hazardous materials on the site. The Phase I study did not identify previous use of the property, or the location of hazardous materials on the property. @ Printed on Recycled Paper Mr. Colin Strange May 24, 2006 Page 2 2) The MND should identify any known or potentially contaminated sites within the proposed Project area. For all identified sites, the MND should evaluate whether conditions at the site may pose a threat to human health or the environment. A Phase I Assessment may be sufficient to identify these sites. Following are the databases of some of the regulatory agencies: National Priorities List (NPL): A list maintained by the United States Environmental Protection Agency (U.S.EPA). Site Mitigation Program Property Database (formerly CalSites): A Database primarily used by the California Department of Toxic Substances Control. Resource Conservation and Recovery Information System (RCRIS): A database of RCRA facilities that is maintained by U.S. EPA. Comprehensive Environmental Response Compensation and Liability Information System (CERCLlS): A database of CERCLA sites that is maintained by U.S.EPA. . Solid Waste Information System (SWIS): A database provided by the California Integrated Waste Management Board which consists of both open as well as closed and inactive solid waste disposal facilities and transfer stations. Leaking Underground Storage Tanks (LUST) / Spills, Leaks, Investigations and Cleanups (SLlC): A list that is maintained by Regional Water Quality Control Boards. Local Counties and Cities maintain lists for hazardous substances cleanup sites and leaking underground storage tanks. The United States Army Corps of Engineers, 911 Wilshire Boulevard, Los Angeles, California, 90017, (213) 452-3908, maintains a list of Formerly Used Defense Sites (FUDS). 3) The MND should identify the mechanism to initiate any required investigation and/or remediation for any site that may be contaminated, and the government agency to provide appropriate regulatory oversight. If hazardous materials or wastes were stored at the site, an environmental assessment should be conducted to determine if a release has occurred. If so, further studies should be carried out to delineate the nature and extent of the contamination, and the potential threat to public health and/or the environment should be evaluated. It may be necessary to determine if an expedited response action is required to Mr. Colin Strange May 24, 2006 Page 3 reduce existing or potential threats to public health or the environment. If no immediate threat exists, the final remedy should be implemented in compliance with state regulations, policies, and laws. 4) All environmental investigations, sampling and/or remediation for the site should be conducted under a Workplan approved and overseen by a regulatory agency that has jurisdiction to oversee hazardous substance cleanup. The findings of any investigations, including Phase I and II investigations, should be summarized in the document. All sampling results in which hazardous substances were found should be clearly summarized in a table. 5) Proper investigation, sampling and remedial actions, if necessary, should be conducted at the site prior to the new development or any construction, and overseen by a regulatory agency. 6) If any property adjacent to the project site is contaminated with hazardous chemicals, and if the proposed project is within 2,000 feet from a contaminated site, except for a gas station, then the proposed development may fall within the "Border Zone of a Contaminated Property." Appropriate precautions should be taken prior to construction if the proposed project is within a "Border Zone Property. 7) If building structures, asphalt or concrete-paved surface areas or other structures are planned to be demolished, an investigation should be conducted for the presence of lead-based paints or products, mercury, and asbestos containing materials (ACMs). If lead-based paints or products, mercury or ACMs are identified, proper precautions should be taken during demolition activities. Additionally, the contaminants should be remediated in compliance with California environmental regulations, policies, and laws. 8) The project construction may require soil excavation and soil filling in certain areas. Appropriate sampling is required prior to disposal of the excavated soil. If the soil is contaminated, properly dispose of it rather than placing it in another location. Land Disposal Restrictions (LDRs) may be applicable to these soils. Also, if the project proposes to import soil to backfill the areas excavated, proper sampling should be conducted to make sure that the imported soil is free of contamination. 9) Human health and the environment of sensitive receptors should be protected during the construction or demolition activities. A study of the site, overseen by the appropriate government agency, might have to be conducted to determine if Mr. Colin Strange May 24, 2006 Page 4 there are, have been, or will be, any releases of hazardous materials that may pose a risk to human health or the environment. 10) If the project plans include discharging wastewater to a storm drain or surface water, it may be necessary to obtain an NPOES permit from the overseeing Regional Water Quality Control Board (RWQCB). 11) If during construction/demolition in the Project area, soil and/or groundwater contamination is suspected, construction/demolition in the area should cease and appropriate health and safety procedures should be implemented. If it is determined that contaminated soil and/or groundwater exist, the NO should identify how any required investigation and/or remediation will be conducted, and the appropriate government agency to provide regulatory oversight. 12) If the site was and/or is used for agricultural activities, onsite soils may contain pesticide, herbicides and agricultural chemical residue. Proper investigation and remedial actions, if necessary, should be conducted at the site prior to construction of the project. OTSC provides guidance for cleanup oversight through the Voluntary Cleanup Program (VCP). For additional information on the VCP, please visit OTSC's web site at www.dtsc.ca.gov. If you have any questions regarding this letter, please contact Mr. Joseph Kaslowski, Project Manager, at (714) 484-5471 or email atjkaslowski@dtsc.ca.gov. Sincerely, #~ Greg Holmes Unit Chief Southern California Cleanup Operations Branch - Cypress Office cc: See next page Mr. Colin Strange ".- May 24, 2006 Page 5 cc: Governor's Office of Planning and Research State Clearinghouse P.O. Box 3044 Sacramento, California 95812-3044 Mr. Guenther W. Moskat, Chief Planning and Environmental Analysis Section CEOA Tracking Center Department of Toxic Substances Control P.O. Box 806 Sacramento, California 95812-0806 CEOA # 1411 _. S TAT E OF C A L I FOR N I A Governor's Office of Planning and Research State Clearinghouse and Planning Unit rJ.OfPlAN.t1.t. ~"~~... .~ . IS * ~ . . :5 .~ 7 ~ $,'-: - .~ ..., ~... "I"tDFC~~ -~ Arnold Schwwzenegger Governor Sean Walsh Director June 12, 2006 , ; Colin Strange San Bernardino County 201 North E Street,Ste. 301 San Bernardino, CA 92401 G -,..., , ~) Subject: Development Agreement to Convey 9 t. 75 Acres in the City of San Bernardino, California c.;;. SCH#: 2006051052 Dear Colin Strange: The State Clearinghouse submitted the above named Negative Declaration to selected state agencies for review. On the enclosed Document Details Report please note that the Clearinghouse has listed the state agencies that reviewed your document. The review period closed on June 8, 2006, and the comments from the responding agency (ies) is (are) enclosed. If this comment package is not in order, please notifY the State Clearinghouse inunediately. Please refer to the project's ten-digit State Clearinghouse number in future correspondence so that we may respond promptly. Please note that Section 211 04( c) of the California Public Resources Code states that: '- "A responsible or other public agency shall only make substantive comments regarding those activities involved in a project which are within an area of expertise of the agency or which are required to be carried out or approved by the agency. Those comments shall be supported by specific documentation." These comments are forwarded for use in preparing your fInal environmental document. Should you need more information or clarification of the enclosed conunents, we reconunend that you contact the commenting agency directly. This letter acknowledges that you have complied with the State Clearinghouse review requirements for draft envirorunental documents. pursuant to the California Envirownental Quality Act. Please contact t..lte State Clearinghouse at (9 I 6) 445-06 I 3 if you have any questions regarding the environmental review process. ~M~- T eITY Roberts Director, State Clearinghouse Enclosures cc: Re.sources Agency 1400 TENTH STREET P.O. BOX 3044 SACRAMENTO, CALIFORNIA 95812-3044 TEL (916) 445-06t3 FAX (916) 323.3018 www.opr.ca.gov STATE OF CAl.[FORNIA-BUSfNESS TRA}.:SPORTA110N AND HOUSlNG AGENCY ARNOLD SCHV.'ARZENEGGEf<... Govemor . DEPARTMENT OF TR.-\NSPORTATION -J:lJSTRlCT 8 \NNfNG AND LOCAL ASSISTANCE (MS 721) . WEST 4" STREET, 6" FLOOR ~N BE~NARDfNO. CA 92401-1400 PHO:-lE (909) 383-4557 FAX (909) 383-5936 TIY (909) 383-6300 @ Flex your power! Be energy efficient! C' \ ~ o.{ l" \:, {j\, \ O-J-t June 14,2006 RECEIVED JUN 1 6 2006 Mr. Colin Strange City of San Bernardino Redevelopment Agency 20 I North "E" Street, Suite 30 I San Bernardino, CA 92041 STATE CLEARING HOUSE Dear Mr. Strange: - Proposed 279 lot Subdivision Assessor Parcel Numbers: 261-111-01,21,23,25,29,30,33,35,37,40; 261- 12 I -01 ,02,03,08,0913,14; 26 I -13 1-04, 261- I 71 -06,261-451-01 through 48 261-461-01 through 66 State Clearinghouse Number 2006051052 1-215 PM 15.00+/- The California Department of Transportation (Caltrans), has reviewed the notice of a pending Development Agreement for a 279-lot subdivision on 91.75 acres located at Little League Road and Interstate 215 (1-215). We offer the following comments on the preliminary application materials that were provided to us regarding this site: . We note that 1-215 currently has 180 feet of right-of-way in the vicinity of this development. Our Route Concept Report for 1-215 calls for an Ultimate Transportation Facility of 10 lanes. Potential also exists for the need for auxiliary lanes. For these reasons it appears that a total right-of-way width of 260 feet will be needed. We request that the developer set aside a 40 foot wide landscape buffer along the 1-215 frontage which could be purchased by the State for right-of-way use at a later date. ~<~ "Ca/irans Improves mobility across Ca/ifornia" Mr. Collin Strange June 14,2006 Page 2 ~""-- . The preliminary traffic study for this development indicates a traffic signal at the I-215/Palm Avenue Interchange will likely meet warrants at project opening and that the applicant will be required to pay their fair share but not actually install the signal. We feel this will not be adequate to meet the mobility needs of this area upon completion of this development and the City will need to ensure that any newly needed traffic signals are actually installed. . The Traffic Impact Analysis should be consistent with Appendix C/Figure C-I per San Bernardino County CMP, 2005 Update, "Preparation of SANBAG and Caltrans TIA Reports." This guide is available on the internet at: htto://wV>fw .sanbag.ca. gov /planning/nexus-studv/Congestion-mgmt app-c. pdf We appreciate the opportunity to offer comments concerning this project. If you have any questions regarding this letter, please contact Mark Roberts, IGR/CEQA Liaison at (909) 383-2515 for assistance. Sincerely, - Original signed by Daniel Kopulsky DANIEL KOPULSKY Office Chief Special Studies, IGR/CEQA Review c: Mark Roberts State Clearinghouse "Co/trans improves mobility across California" S TAT E OF C A L I FOR N I A Governor's Office of Planning and Research State Clearinghouse and Planning Unit .t~_'.fPu...,." .Co w- ....~ f * i r:..".tfI/A .!l 'I., ~;:.~ 'EDFt,t,Utc~ iI"""~.'. ...~.., '''-'' ........ . : ,,~ 'O~~ ~ ""-' Arnold Schwarzenegger Governor Selin Walsh . "Uirector ~~) c,.... June 20, 2006 :g - u.; Colin Strange San Bernardino County 201 North E"Street, Ste. 301 San Bernardino, CA 9240 I -0 Subject: Development Agreement to Convey 91.75 Acres in the City of San Bernardino, California SCH#: 2006051052 Dear Colin Strange: The enclosed comment (s) on your Negative Declaration was (were) received by the State Clearinghouse after the end of the state review period, which closed on June 8, 2006. We are forwarding these comments to you because they provide information or raise issues that should be addressed in your final envirorunentaI docwnent. -- The California Envirorunental Quality Act does not require Lead Agencies to respond to late comments. However, we encourage you to incOIl'orate these additional comments into your fmal envirownental document and to consider them prior to taking fmal action on the proposed project. Please contact the State Clearinghouse at (916) 445-0613 if you have any questions concerning the environmental review process. If you have a question regarding the above-named project, please refer to the ten-digit State Clearinghouse number (2006051052) when contacting this office. J;~ /?~~.~ Terry Roberts Senior Planner, State Clearinghouse Enclosures cc: Resources Agency 1400 TENTH STREET P.O. BOX 3044 SACRAMENTO, CALIFORNIA 95812.3044 TEL (916) 445-0613 FAX (916) 323-3018 www.opr.ca.gov --- MITIGATION MONITORING AND REPORTING PROGRAM FOR THE DISPOSITIO~ AND DEVELOPMENT AGREEME1'IT BETWEEN CENTURY CROWELL COMMUNITIES, LP 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 Century Crowell Communities LP 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: "--- 1. 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. 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. . 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. 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. 2. 3. 4. The individual measures and accompanying monitoring/reporting actions follow. MITIGATION MEASlIRES ,,";"'- Air Quality 1. No more than an area equivalent to 1 0 acres shall be actively graded in any one day. 2. 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. 3. All trucks leaving the site shall be washed off to reduce fugitive dust being tracked onto local roadways. 4. Any portion of the site to be graded shall be pre-watered to a depth of three feet prior to the onset of grading activities. 5. Any area which remains undeveloped for a period of more than 30 days shall be stabilized using either chemical stabilizers or hydroseed on the affected portion of the site. 6. SCAQMD Rule 403 shall be adhered to, insuring the clean-up of construction- related dirt on approach routes to the site. 7. All grading activities shall be suspended during first and second stage ozone episodes or when winds exceed 25 miles per hour. IMPLEMENTATION AND VERIFICATION "-;.."'" The Public Works Division of the Development Services Department shall conduct site inspections during grading process. COMPLIANCE RECORD Inspection records on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 2 MITIGATION MEASURES ',,"-,,,,," Biological Resources I. Removal of trees and shrubs should occur on the site outside of the bird nesting season. Should earth moving on the site involving the removal of trees and shrubs be proposed for the period from February through August 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 The Planning Division of the Development Services Department to review and approved pre-construction study. COMPLIANCE RECORD Study to be kept on file in the Development Services Department - WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: -----.',- 2. The proj ect 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. The project proponent shall mitigate impacts to Riversidian alluvial fan sage scrub habitat to the satisfaction of the California Department of Fish and Game and the US Fish and Wildlife Service. It is expected that up to 127.5 acres will need to be preserved off-site. A Section 7 consultation shall be undertaken with the US fish and Wildlife Service, in conjunction with the preparation of US Army Corps 404 permitting, for San Bernardino kangaroo rat and coastal California gnatcatcher, prior to the issuance of a grading permit. Off site mitigation of San Bernardino kangaroo rat habitat shall be secured to the satisfaction of the US fish and Wildlife Service prior to the issuance of a grading permit. Off site mitigation of coastal California gnatcatcher habitat shall be secured to the satisfaction of the US Fish and Wildlife Service prior to the issuance of a grading permit. 3. 4. 7. 8. 3 IMPLEMENTATION AND VERIFICATION '- The Planning Division of the Development Services Department to receive copies of all permits and confirmation by agencies of implementation of mitigation. COMPLIANCE RECORD Copies ofpemlits to be kept on file in the Development Ser;ices Department WRITTEN VERIFICATION PREPARED BY: DA TE PREPARED: 5. An exclusion fence will be placed around the impact area for kangaroo rat as determined necessary by a qualified biologist. Trapping will be conducted within this area within 30 days of initiation of any ground disturbing activity in this impact area. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. Los Angeles pocket mouse shall be trapped concurrently with the kangaroo rat trapping undertaken in mitigation measure 5, above. Any captured animals will be relocated outside the impact area, in a manner consistent with protocol established for the species. 9. .""..""",," IMPLBIENTATION AND VERIFICATION Biologist to submit monitoring and trapping reports to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Report to be kept on file in Development Services Department WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 6. A qualified monitor shall be present during all ground disturbing activities of areas suitable for habitat for the San Bernardino kangaroo rat. The monitor will be empowered to stop building activities to avoid take of the species, and to assure compliance with the incidental take authorization for the project. 4 '-'-""">,,, IMPLEMENTATION AND VERIFICATION Biologist to submit monitoring report to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Report to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Cultural Resources -~'-...",..-. 1. A qualified archaeological monitor shall be on site during all excavation and trenching activities on the project site, until such time as the monitor determines that the probability for location of artifacts is low. The monitor shall be empowered to stop or redirect eartlunoving activities. Any resources identified on the site shall be properly catalogued and curated. The monitor shall prepare a report of all findings and deliver same to the City Planning Department within 30 days of the end of monitoring for review and approval. A qualified paleontological monitor shall be on site during excavation and trenching on the site, in conformance with the requirements of the "Phase I Cultural Resources Survey of the Rolling Hills Ranch Country View Estates Project..." prepared by Michael Brandman Associates, June 2005. 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 Planning Department within 30 days of completion of eartlunoving activities for review and approval. 2. 3. IMPLEMENTATION AND VERIFICATION Archaeologist and paleontologist to submit monitoring reports to Planning Division of the Development Services Department for review and approval. COMPLIANCE RECORD Reports to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5 '~"...- MITIGATION MEASURES Hydrology and Water Resources 1. Prior to approval of the Tentative Tract Map, the project proponent shall secure approval from the City Engineer of a Preliminary Hydrology Study and associated hydraulic analysis which demonstrates what improvements are required to remove the subject property from the 100 year flood plain. The City Engineer, may, at his discretion, require that the project proponent also secure a Conditional Letter of Map Amendment, or Letter of Map Amendment, from FEMA. All plans for improvements within Cable Creek shall also be reviewed and approved by the San Bernardino Flood Control District. IMPLEMENTATION AND VERIFICATION The Public Works Division of the Development Services Department to review and approve hydrology study. --- COMPLIANCE RECORD Approved report on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Noise 1. All construction equipment shall be equipped with properly operating mufflers. All stationary construction equipment shall be directed away from sensitive receptors near the project site. Construction staging areas shall be located as far away from sensitive receptors as possible. A sound wall of 6 to 10 feet, as delineated in Table M of the Noise Impact Analysis cited below, shall be constructed along the project frontage on 1-215. 2. 3. 4. '- 6 IMPLEMENTATION AND VERIFICATION The Public Works Division of the Development Services Department to conduct on site inspections during construction. COMPLIANCE RECORD Inspection reports to be kept on file in Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 5. If second floor balconies or decks are proposed for any home adjacent to the 1- 2 I 5 right of way, facing the right of way, a solid barrier of at least 5 feet shall be provided on the perimeter of the balcony or deck. 6. Second floor bedroom windows shall be equipped with double-paned windows with a minimum sound transmission class of STC-28 to STC-34. 7. Mechanical ventilation shall be provided for all homes within 2,200 feet of the centerline ofl-215. IMPLEMENTATION AND VERIFICATION ".-- The Building and Safety Division of the Development Services Department to conduct plan check for compliance. COMPLIANCE RECORD Building plans to be kept on file in Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: MITIGATION MEASURES Traffic and Circulation I. The project shall contribute its fair share to the signalization of the northbound and southbound ramps ofl-215 at Palm Avenue. IMPLEMENTATION AND VERIFICATION The Building and Safety Division of the Development Services Department to assure fees have been paid prior to issuance of building permits. 7 COMPLIANCE RECORD ...........,,..r Proof of payment to be kept on file in the Development Services Department. WRITTEN VERIFICATION PREPARED BY: DATE PREPARED: 8 "-- DISPOSITION AND DEVELOPMENT AGREEMENT between ---- REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO a public body, corporate and politic and CENTURY CROWELL COMMUNITIES, LP a California limited partnership Dated as of July 24, 2006 ,- This DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") is reference dated as of July 24, 2006, between the Redevelopment Agency of the City of San Bernardino, a public body corporate and politic ("Agency") and Century Crowell Communities, LP, a California limited partnership ("Developer"). This Agreement will become effective on the date ("Effective Date") that it has been approved and duly executed by the appropriate representatives of the Agency and Developer. ARTICLE I TERMS AND CONDITIONS Section 1.01. Purpose of Agreement. The purpose of this Agreement is to effectuate various redevelopment plans of the Agency by causing the residential development of an approximately two hundred seventy-nine (279) buildable lot single family housing tract (the "Site"). The Site is located in the City of San Bernardino, California (the "City"). (a) The Site is a total of approximately eighty-two (82) acres. Approximately seventy-nine (79) acres of the Site (the "Agency Parcel") will be conveyed by the Agency to the Developer in accordance with the terms and conditions of this Agreement; the Developer shall attempt to acquire, subject to the Agency's assistance as hereinafter described, the remaining approximately three (3) acre portion of the Site from the San Bernardino County Flood Control District as part of the "SBCFCD Parcel" described in Section 1.01.1(a) below. A legal description of the entire Site is anached hereto as Exhibit A and incorporated herein by this reference. A Site Map depicting the relative locations of the Site, the SBCFCD Parcel, and the Community Park (as defined in subparagraph (b) below) is attached hereto as Exhibit A-2 and incorporated herein by this reference. The development of the Site pursuant to this Agreement is in the vital and best interest of the City and the health, safety and welfare of its "'- residents, and in accord with the public purposes and provisions of applicable state and local laws. (b) Immediately adjacent to the Agency Parcel is an approximately twenty-one (21) acre parcel ofland owned by the Agency and/or the City. Subject to the Agency's ability to obtain, at its cost, an approximately nine (9) acre parcel of adjacent land from the San Bernardino County Flood Control District, this twenty-one (21) acre parcel shall be combined with the nine (9) acre portion and dedicated to the City for the City's development of an approximately thirty (30) acre community park (the "Community Park"). The approximately thirty (30) acre parcel is hereinafter referred to as the "Community Park Parcel." Prior to the Close of Escrow, the Developer shall cause, at its expense, the preparation of a Master Parcel Map accomplishing the following: (I) the creation of the Site from the Agency Parcel and an approximately three (3) acre portion of the SBCFCD Parcel, and (2) the creation of the Community Park Parcel from the combination of the twenty-one (21) acre Agency/City-owned parcel and the approximately nine (9) acre portion of the San Bernardino County Flood Control District-owned property as described above. The final acreage and configuration of the Community Park Parcel shall be subject to the Agency's and City's reasonable review and approval, which approval shall be given provided that the Community Park Parcel as depicted on the Master Parcel Map substantially conforms with the descriptions and requirements of this Agreement. The Agency shall cooperate, and shall use reasonable good faith efforts to cause the City to cooperate, in the preparation of the Master Parcel Map, including, without implied limitation, obtaining such consents as may be required from the City, Agency, and SBCFCD to process the Master Parcel Map. CENTURY HOMES DDA -7.13.06 -1- P,^gcndas.Aicllda Anachmcml\Arpmls-Amrnd 2006\07-24-06 CCrllury Homes DOl. . 15 Graft 7.IJ..Q6 doc .......""",,.,- ,- Section 1.01.1. San Bernardino County Flood Control District Property. (a) The parties acknowledge that, as of their execution of this Agreement, certain property adjacent to the Agency Parcel ("SBCFCD Parcel") is owned by the San Bernardino County Flood Control District ("SBCFCD"). A legal description of the SBCFCD Parcel is attached hereto as Exhibit A-I and is shown on the Site Map. The SBCFCD Parcel is approximately three (3) acres in size. Adjacent to the SBCFCD Parcel is certain other SBCFCD-owned property as to which the Developer desires to acquire the right ("SBCFCD License") to (i) construct certain flood control improvements of benefit to the Site and to be dedicated to SBCFCD, and (ii) in the course of the construction of such flood control improvements, to export material from the property subject to the SBCFCD License to assist in the grading of the Site. The SBCFCD Parcel and the SBCFCD License shall be collectively referred to hereafter as the "SBCFCD Property". The Developer intends to 'enter into negotiations with SBCFCD with respect to the terms and conditions under which the Developer will acquire the SBCFCD Property. The acquisition of the SBCFCD Property is essential to the development of the Project. (b) In implementation of Section 3.01(bb), and provided that Agency is not required to incur any material financial expense with respect thereto, at the Developer's request Agency staff and Agency special counsel shall meet and confer with Developer and SBCFCD representatives regarding the terms and conditions of the Developer's acquisition of the SBCFCD Property. The Agency shall also exercise other reasonable good faith efforts to cause SBCFCD to conyey the SBCFCD Property to the Developer, at no material financial cost to the Agency and on terms and conditions reasonably acceptable to the Developer. Section 1.02. The Site and Scope of Development. The development of the Site will include a total of approximately two hundred seventy-nine (279) subdiyided residential lots. Each residential lot in the Site shall be referred to hereafter as a "Site Lot" and, subject to the City's approval of a general plan amendment and zoning code amendment permitting the same (collectively, the "Density Approvals"), shall be a minimum of 7,200 gross square feet in size. Each residential dwelling unit constructed on a Site Lot shall be referred to hereafter as a "New Home." Promptly following the Closing of Escrow, the Developer shall undertake the development, improvement, marketing and sale of the Site in accordance with the Scope of Development attached hereto as Exhibit B. The provisions of this Agreement are applicable to the Site in its entirety. Section 1.03. Parties to the Agreement. (a) The Agency. The Agency is a public body, corporate and politic, exerclsmg governmental functions and powers and organized and existing under Chapter 2 of the Community Redevelopment Law of the State of California ("CRL") (Health and Safety Code Section 33020, et seq.) The principal office of the Agency is located at 20 I North "E" Street, Suite 30 I, San Bernardino, California 92401. (b) The Developer. The Developer is Century Crowell Communities, LP, a California limited partnership. The principal office and mailing address of the Developer for purposes of this Agreement is: 1535 South "D" Street, Suite 200, San Bernardino, California 92408. CENTURY HOMES DPA -7.13-06 -2- P 'Agel"iOasv\gem1a Amlchmellls\Agml.5-Amelld 2006\07-24-06 CenlUl')' Homes DDA . TS draft 7.13_06 doc "-..-- Section 1.04. Prohibition Against Change in Ownershio. Management and Control of Develooer 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. No voluntary or involuntary successor in interest of the Developer shall acquire any rights or powers under this Agreement except as expressly set forth herein. Except as set forth in Section 3.04 or the last paragraph of this Section 1.04, the Developer shall not assign all or any part of this Agreement or any rights hereunder prior to the issuance of the Certificate of Completion without the prior written approval of the Agency Executive Director, which approval shall not be unreasonably conditioned, withheld or delayed. "'- The Developer shall promptly notify the Agency in writing of any material change in the identity of the parties 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 partners or officers has been notified or may otherwise have knowledge or information. This Agreement may be terminated by the Agency prior to the Close of Escrow as set forth in Section 2.03 if there is any 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 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 material change in the ownership, or control of the Developer occurs with respect to the Site; provided, however, that (A) the Agency shall first notify the Developer in writing of its intention to terminate this Agreement or assert any other such remedy, and (B) the Developer shall have twenty (20) calendar days following its receipt of such written notice to commence and thereafter diligently and continuously proceed with the cure of the default of the Developer hereunder 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. For the' purpose of this Section 1.04 the words "material change" refer to any total or partial sale, assignment, or conveyance, or any trust power or any transfer in any other mode or form by the Developer of more than a forty-nine percent (49%) interest of the ownership of the Developer, and/or a series of such sales, assignments or conveyances which in the aggregate exceed a disposition or change of more than a forty-nine percent (49%) interest of the ownership of the Developer. Anything in this Section 1.04 or elsewhere in this Agreement to the contrary notwithstanding, the Developer shall at any time have the right to sell, transfer, assign and convey, with the Agency's consent, which will not be withheld or conditioned on any grounds, the entirety or a portion of the Developer's right and interest in this Agreement and/or the Site to any entity or entities in which the Developer is the managing member or for whom the Developer serves as the development management company. Section 1.05. Benefit to the City and the Agency. The Agency has determined that the disposition of the Site to the Developer in accordance with this Agreement implements the redevelopment goals and policies of the Agency, will result in the revitalization of economically and physically blighted property, and, to the Agency's knowledge, is consistent with all applicable local, state and federal laws and regulations. CENTURY HOMES DDA -7-13.06 -3- P \AgenaaslA&enda Anac;lImenu;\ASm1:I-Amend 2006107-24-06 Century HomeII DDA - TS dnIi 7-J}-06 dol; -- Section 1.06. List of Exhibits to Agreement. The following is a listing of the Exhibits attached to this Agreement. Each such exhibit is incorporated by this reference into the text of this Agreement: EXHIBIT A EXHIBIT A-I EXHIBIT A-2 EXHIBIT B EXHIBIT C EXHIBIT D EXHIBIT E EXHIBIT F EXHIBIT G EXHIBIT H EXHIBIT I EXHIBIT J Legal Description of the Site Legal Description of SBCFCD Parcel Site and Vicinity Map Scope of Development (Section 1.02) Form of Agency Grant Deed Schedule of Performance (Section 3.01(f)) Project Pro Forma (Section 2.16(14)) Form of Certificate of Completion (Section 3.07) Notice of Agreement (Section 8.01) Form of Temporary License Agreement for the Grading of and Improvement of Land (Section 2.22(b)) Developer Note (Section 2.02(b)) Infrastructure Eligible for Public Financing District (Section 2.09(a)) ARTICLE II DISPOSITION OF SITE Section 2.01. Purchase and Sale of the Agencv Parcel. Subject to all of the terms, conditions and provisions of this Agreement, and for the consideration of the payment of the Purchase Price by the Developer to the Agency for the Agency Parcel as herein set forth, the Agency hereby agrees to sell and the Developer hereby agrees to purchase all of the right, title and interest of the Agency in the Agency Parcel. -- Section 2.01.1 Purchase Price for the Agencv Parcel. (a) Agency agrees to sell the Agency Parcel and the Developer agrees to purchase the Agency Parcel in an AS IS CONDITION for a purchase price ("Purchase Price") equal $4, I 00,000.00. The final engineering study shall determine the boundaries of the Agency Parcel as shall be prepared by the Developer at the Developer's sole expenses and shall be completed no less than thirty (30) days prior to the Close of Escrow and a copy thereof shall be provided to the Agency for its reasonable review and approval, which approval shall be given provided that such engineering study has been completed with reasonable and customary surveying and engineering standards. Such final engineering study shall be deemed to be the Survey as required pursuant to Section 2. I 5 hereof. (b) The Agency and the Developer agree that this Site shall be sold to the Developer for the greater of $4,100,000.00 or its fair market value, determined in accordance with the highest and best use of the Site aUowable pursuant to the City's general plan and zoning code, and that no public financial assistance or financial subsidy is being provided to the Developer in connection with the development of the Site and the New Homes. The Developer may elect to obtain an appraisal solely for the purpose of verifying that the Purchase Price as set forth herein is not less than the fair market value of the Agency Parcel taking into account the development costs and infrastructure requirements associated with the development of the Site and the obtaining of the greater density to allow for the two hundred seventy-nine (279) New Homes on the Site. In determining the "fair market value" of the Site, the appraiser retained by the Developer shall apply industry standard practices relative to the costs of development and the "-.~ CENTURY HOMES DDA -7.13-V6 P AgcllGas\AacnQa AllacluncntslAJrTrU-Amcnd 2006\07.24-06 CenlW)' Homes DDA. TS Qraft 7-lJ-06_doc -4- intended number of New Homes to be built thereon. Under no circumstances shall the Purchase Price be less than the $4,100,000.00 figure set forth herein as the minimum price to be paid by the Developer for the Agency Parcel constituting the Site. '- Section 2.01.2 Additional Consideration. identified in Section 2.01.1 above, the Developer shall pay to additional purchase consideration, as follows: In addition to the Purchase Price the Agency, a "Participation Fee" as (a) Payment of Particioation Fee By Develooer to the Agency. (1) The Participation Fee is a sum payable by the Developer to the Agency from a special source of Developer funds described in this Section 2.01.2, to the extent that such funds are available therefore, as additional consideration for the agreement by the Agency to convey the Agency Parcel to the Developer. The Participation Fee is a sum equal to twenty percent (20%) of the "Profit of the Development", as defined below. The Participation Fee shall be due and payable to the Agency from the Profit of the Development, if any, realized by the Developer upon the occurrence of the following events: (A) the sale, transfer, assignment or other hypothecation of the interest of the Developer in all or a portion of the Site Lots to a third party, other than to "New Home" buyers as this term is defined in Section 3.01(a), or except for a permitted construction-related financing authorized by Section 3.05; and/or .~ (B) within one hundred and twenty (120) days following the close of the last "New Home" escrow, for the sale of all of .the completed New Homes in the Site and the Agency's receipt of the written accounting described in Section 2.01.2(c); (C) within four hundred (400) days following the distribution of the Participation Fee as set forth in Section 2.0I.2(a)(I)(B), the Developer shall provide the Agency with a final accounting of the unexpended balance of New Home warranty reserve account for the Project, and if any balance may then remain in such account, such balance shall be deemed to be "Profit of the Development"; (2) As used in this Section 2.01.2., the following words and phrases shall mean: "Developer's General and Administrative Expenses" means and refers to the sum of three percent (3%) of the gross sales price ofa completed New Home paid at the close of each New Home escrow. "Profit of the Development" means and refers to the gross amount realized by the Developer, if any, upon the sale or transfer of its interest in this Agreement or in the Site, after deducting CENTURY HOMES DDA -7-\3-% -5- P '^icndasv\gcnda An~hmenulApm:5.Ammd 2006\07-24-06 Cenlury Homes DO" - TS dI'afl7-lJ-06do.x the Project Costs incurred by the Developer during the course of the acquisition and development of the Site and after deducting Developer's General and Administrative Expenses. '-- "Project Costs" means and refers to the aggregate of the following customary and commercially reasonable costs incurred by the Developer in connection with the acquisition and development of the Site: (A) the Purchase Price, brokerage fees, commissions, any amounts paid to the Agency which are not credited to the Purchase Price, any amounts paid in connection with the acquisition of the SBCFCD Property, and any other reasonable and customary costs incurred by the Developer in connection with the acquisition of the Site; (B) the cost of Site preparation and Site improvement, including fill material import and mitigation costs related to the replacement of San Bernardino Kangaroo Rat (and/or other state or federal listed threatened or endangered species) habitat replacement or loss mitigation; (C) architectural, engineering, legal, accounting, consulting, and other fees paid in connection with the planning, execution and financing of the development of the New Homes on the Site, including the cost offumishing model homes; "'- (D) the costs of other necessary studies, surveys, plans and permits not including in (C) above; (E) the cost of insurance, interest and financing for the construction of the New Homes, surety and completion bonds, property taxes, and special assessment costs incurred following the Close of Escrow during the course of construction of the New Homes on the Site; (F) the cost of construction of the New Homes on the Site; (G) the cost of all other improvements to the Site, including landscaping, fencing, site preparation, the Community Park Parcel grading work as described in Section 3.02, and utilities paid for by the Developer; (H) indirect costs of the Developer for the construction of the New Homes, including the cost of a construction superintendent, project manager and construction security by private patrol services; (I) moneys actually expended from the New Home post sale warranty account established by the Developer at the time of sale of each New Home in the amount of one and one-tenths of a percent (1.1 %) of the gross sales price of the New Home; CENTURY HOMES DDA-7-1J.()6 -6- P \Agcndas\Agenda AnKhmmlslAarmS-Amcnd 2000107.24-06 Century Homes DDA. TS dr.Ill 7.13-0600<; (J) the cost of other extraordinary Project-related construction and/or marketing expenses of the Developer approved by the Executive Director in his reasonable discretion which are based upon unusual or unforeseen conditions associated with the completion of the Project; '--' (K) A New Home sales commission payable to the Developer equal to two percent (2%) of the gross sales price paid by a New Home buyer for each completed New Home, plus the New Home sales marketing and advertising costs paid by the Developer, plus the costs payable by the Developer as escrow costs, fees and charges to the escrow agent who administers each New Home escrow, plus the costs of hosts employed in Developer's sales office(s) for the Project, plus real estate sales commissions paid by the Developer, if any, to third party real estate brokers at the time of sale of each New Home; (L) a developer fee payable to the Developer or its financial investors equal to one percent (I %) of the gross sales price paid by New Home buyer for each completed New Home; (M) a loan origination fee equal to one-half of one percent (0.50%) of the loan amount of each New Home purchase which is financed by Century Preferred Mortgage or its successor. (b) From and after the Close of Escrow until the Participation Fee is paid in full to the "'-" Agency, the Developer shall provide the Agency with the following financial reports relating to the Site: (i) within sixty (60) calendar days of the end of each calendar quarter, a report on the status of the Project, which shall include, at a minimum, the trial balance, general ledger, cash receipt journal, cash disbursements journal, sales journal, job cost summary compared with the Project pro-forma, bank statement, and quarterly profit and loss statement, and schedule of cash flows and a weekly sales report for New Homes, as applicable; and (ii) within one hundred twenty (120) calendar days after the end of each fiscal year, an annual unaudited financial statement, prepared by the Developer for the project at the Site, or, if obtained by the Developer, an audited financial statement. (c) At the times indicated in Section 2.01.2(a)(I)(A) or (B) the Developer shall provide the Agency with a suitably detailed written accounting prepared in accordance with generally-accepted accounting principles of the amount of the Participation Fee which is due and payable to the Agency pursuant to this Section 2.01.2. The Agency shall have the right to inspect the business and financial records of the Developer as related to these calculations and verification of the amount of the Participation Fee as may be payable to the Agency, if any. The Developer shall provide the Agency (and its auditors or accountants) with reasonable access to such business records upon reasonable prior notice from the '.._ Agency. The Agency shall pay for its copying and accounting costs associated with inspection of the business records provided by the Developer to the Agency for inspection. CENTURY HOMES DDA-7.13-06 -7- P \Ag~ndas\Aienda Atlach1ToCnlslAgmU-Amend 2006107-24-06 CcnlUr}' Homes DDA. TS draft 7_]3_06 doc -- (d) The parties understand and acknowledge that the development of the Project involves substantial business risks, and there is no assurance that the Project will be profitable or can be completed with respect to some or all of the Site Lots. The parties further acknowledge that this Section 2.01 has been prepared in accordance with Developer's experience and its knowledge of the Project of the Effective Date of this Agreement. Changes to the Project Pro Forma (attached as Exhibit E) as permitted by Section 2.1 7(c) may have an impact on the Profit of the Development and, accordingly, the Agency's Participation Fee. Section 2.02. Develooer Deposit. Pavrnent of Purchase Price: Aoolication or Return ofDeoosit. (a) Develooer Deoosit. Within five (5) calendar days following the full execution of this Agreement by the parties, the Developer shall deposit the sum of Fifty Thousand Dollars ($50,000) ("Initial Deposit") with Fidelity National Title, 3602 Inland Empire Boulevard, #A-IIO, Ontario, California, 92408 ann: Kelly Simoneau ("Escrow Holder"), Escrow # (the "Escrow"). Within five (5) calendar days following delivery of the Due Diligence Approval Certificate, the Developer shall deposit the additional sum of One Hundred Thousand Dollars ($100,000) ("Additional Deposit") with the Escrow Holder. As used herein, the term "Deposit" means the Initial Deposit at all times prior to the Developer's deposit of the Additional Deposit and shall mean the Initial Deposit and the Additional Deposit at all times after the Developer's deposit of the Additional Deposit. The Escrow Holder shall invest the Deposit in an interest-bearing escrow account at the written instruction of the Developer with the interest thereon to accrue to the benefit of the Developer. At the Close of Escrow, the Deposit, together with all interest earned thereon, less costs of closing payable by Developer, shall be applied to the Purchase Price, as further provided for under this Agreement. '''~ (b) Pavrnent of Balance of Purchase Price. The Purchase Price shall be tendered by the Developer to the Escrow Holder on the Closing Date (as hereinafter defined) as follows: (i) The amount of$600,000.00 of the Purchase Price shall be paid by the Developer's delivery ofan unsecured promissory note ("Note") substantially in the form as that attached hereto as Exhibit I for delivery to the Agency upon the Close of Escrow; and (ii) The balance of the Purchase Price, less the Deposit, shall be paid in cash or immediately available funds to ,the Escrow Holder pursuant to Section 2.07(4) for disbursement to the Agency upon the Close of Escrow. (c) Return of Deoosit. In the event that (i) the Agency or the Developer terminates this Agreement pursuant to Section 2.21; or (ii) the Developer does not deliver its Due Diligence Approval Certificate (as hereinafter defined) to the Escrow Holder pursuant to Section 2.11 and this Agreement is terminated; or (iii) the Developer's conditions precedent to the Close of Escrow described in Section 2. 17 are not satisfied (unless satisfaction has been waived in writing by the Developer) and this Agreement is terminated; or (iv) as described in Section 2.27, either the Site suffers danaage prior to the Close of Escrow, or an action of eminent domain is commenced by a governmental entity with respect to the Site prior to the Close of Escrow, and the Developer elects to terminate this Agreement pursuant to Section 2.27; or (v) the Escrow and this Agreement are terminated by operation of any other provision of this Agreement and such termination is not due to the Developer's uncured material breach hereof, then the " Deposit (less an amount equal to one-half of the customary and reasonable escrow cancellation charges of the Escrow Holder) shall be returned to the Developer in the form of Escrow Holder's check. CENTURY HOMES DDA -7-13.Q6 -8- P IAgcr>d.uVr.iCOOa AlIacllmenls\A&fTTI.s-Ammd 2006\07.24-06 Cmlury Homes DDA . TS draft 7.1 J.()(idoc . Section 2.03. Opening and Closing of Escrow. (a) The transfer and sale of the Agency Parcel shall take place through an Escrow to be administered by the Escrow Holder. Notwithstanding the actual date of the opening of the Escrow, the Escrow shall be deemed open ("Opening of Escrow") upon delivery of the Deposit by the Developer and a fully executed copy of this Agreement to the Escrow Holder. The Escrow Holder shall promptly confinu to the parties the escrow number and the title insurance order number assigned to the Escrow. (b) In the event that the Developer has not delivered its Due Diligence Approval Certificate to the Agency and the Escrow Holder prior to the end of the Due Diligence Period (as it may be extended by operation of this Agreement or mutual agreement of the parties) for any reason, then in such event this Agreement shall tenuinate 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 one-half of the customary and reasonable escrow cancellation charges payable to the Escrow Holder) as provided in Section 2.02(c) 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 its Due Diligence Approval Certificate prior to the end of the Due Diligence Period (as it may be extended by operation of this agreement or mutual agreement of the parties), then the Closing Date of the Escrow shall occur within twenty (20) months after the end of the Due Diligence Period, subject to satisfaction or written waiver of the conditions set forth in Section 2.17 and Section 2.18. The words "Close of Escrow," "Closing Date" and "Closing" shall mean and refer to the date when the Escrow Holder is in receipt of all necessary documents and the Escrow Holder is in a position to comply with the final written instructions of the parties and cause the Agency Grant Deed for the Site to be recorded and the policy of insurance for the Site 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 fonu 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 tenus 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 tenuination of this Agreement or cancellation of the Escrow, the Escrow Holder shall forthwith return all monies (as provided in this Agreement) and docwnents, 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 the grant deed for the Agency Parcel in the fonu attached hereto as Exhibit C ("Agency Grant Deed") duly executed and acknowledged by the Agency, which Agency Grant Deed shall convey all of the right, title and interest of the Agency in the Agency Parcel 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 and funds for the accounts of the parties as set forth herein and can obtain for Developer's benefit ALTA standard coverage policy of title insurance for the Agency Parcel. The foregoing policy of title insurance is hereinafter referred to as the "Title Policy" and shall be issued by Fidelity National Title, Riverside, California ("Title Company"). The insured value of the Title Policy shall be in an amount equal to the Purchase Price, together with such endorsements to such policy as may CENTURY HOMES PPA -7.13-06 -9- P\Aj~ndas\AJ1i'nda AlIlIdllTIClIlSlAp1TU-Amend 2006\07-24-06 Ccntlll)' Homa DoA . IS draft 7-13-06 doc reasonably be requested by Developer. The Title Policy shall insure that fee title to the Agency Parcel shall be vested in the Developer (or Developer's assignee or nominee) and subject only to: (I) non-delinquent real property taxes; (2) non-monetary title exceptions approved by the Developer pursuant to Section 2. J3 below; (3) applicable provisions of the subdivision map for the Site; (4) the provisions of the Agency Grant Deed for the Agency Parcel; (5) the applicable provisions of this Agreement; and (6) such other title exceptions, if any, resulting from docunaents being recorded or delivered through Escrow. Section 2.06. Additional Closing Obligations of 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: (I) a certificate of non-foreign status (the "Non-Foreign Affidavit") 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; ""_..v (2) all soils, seismic, geologic, drainage, toxic waste and environmental reports, surveys, "as-built" plans and specifications, working drawings, grading plans, elevations and similar information with respect to the Site heretofore obtained by the Agency, 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; provided, however, that if the Agency delivers any documents or materials which have not been previously delivered by the Agency to the Developer pursuant to Section 2.08, then the Developer shall have the right, in its sole and absolute discretion, and without cost, expense or liability, to delay the Close of Escrow until such time as the Developer has had the opportunity to review and analyze any such new information, for a period not to exceed thirty (30) days. If the Developer concludes, in its sole but reasonably exercised discretion, that any new information contained in the documents or materials not previously provided by the Agency to the Developer pursuant to Section 2.08 materially increases the risk or expense associated with the development of the Site, then the Developer may rescind any Due Diligence Approval Certificate which it may have theretofore provided and the parties' rights and obligations shall be as set forth in Section 2.02(c); (3) two (2) duplicate original copies of the estimated Closing Statement described in Section 2.23, duly executed by the Agency; CENTURY HOMES DDA -7-13-06 -10- PlAge0da5\Agelllb AnllCbmenu\Aj;rmu.Amcnd 2006\07.24-06 Century Homn DDA. is dr.lft ,-[3-06 do\; L (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; and (5) any other documents, instruments or funds required to be delivered by the Agency under the terms of Agreement or as otherwise required by Escrow Holder or Title Company in order to Close Escrow which have not previously been delivered. Section 2.07. Closing Obligations of Develooer. 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) two (2) duplicate original copies of the Closing Statement, duly executed by the Developer. (2) 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. (3) the Note and any other documents, instruments or funds required to be delivered by the Developer under the terms of Agreement or as otherwise required by Escrow Holder or Title Company in order to Close Escrow which have not previously been delivered. '- (4) the Purchase Price, less the Deposit and less the principal amount of the Note. Section 2.08. Insoections and Review. (a) Due Diligence Items. Within five (5) calendar days after the execution of this Agreement, the Agency shall deliver to the Developer true, correct and complete copies or originals of the following documents and items (collectively, "Due Diligence Items"), which Agency shall warrant and represent as ~aving been fully paid for and upon which Developer may rely: (i) copies of all soils, seismic, geologic, drainage, toxic waste, engineering, environmental and similar type reports and surveys (including, but not limited to, any environmental site assessments of the Agency Parcel), surveys, grading plans, improvement plans (including "as-built" plans and specifications), schematics, blueprints and working drawings for the improvement of the Agency Parcel, if any, in the possession or control of the Agency and correspondence relating thereto, if any, within the Agency's (or its agents' or contractors') possession or control. (ii) notices of violations, including, but not limited to, zoning ordinances, development or building codes affecting the Agency Parcel in the Agency's possession or control. '- (iii) written disclosure of any legal or other matters affecting the use or condition of the Agency Parcel within the knowledge of the Agency. CENTURY HOMES OOA -).13'()6 -11- P IAgendasl.AgenOa Auachmcnls\A&mIs-Amcnd 2006\07-24.06 Century H~ DDA - TS draft 7-ll.06 doc; (ii) "hazardous substances" includes without limitation: those substances included within the definitions of "hazardous substance," "hazardous waste," "hazardous material," "toxic substance," "solid waste," or "pollutant or contaminate" in CERCLA, RCRA, TSCA, HMT A, or under any other environmental law; and those substances listed in the United States Department of Transportation (DOT)Table [49 CFR 172.101 J, or by the EP A, or any successor agency, as hazardous substances [40 CFR Part 302J; 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 (1) a petroleum or refined petroleum product, (2) asbestos, (3) polychlorinated biphenyl, (4) designated as a hazardous substance pursuant to 33 USC Section 132 I or listed pursuant to 33 USC Section 13 I 7, ".,,,,..,..,, (5) (6) a flammable explosive, or a radioactive material. Section 2.09. Due Diligence Investigation of the Site. (a) Within one hundred twenty (120) calendar days from and after the Opening of Escrow, and subject to the extensions of time set forth below in Section 2.16, the Developer shall have the right to examine, inspect and investigate the Agency Parcel (the "Due Diligence Period") to determine whether its condition is acceptable to the Developer in its sole and absolute discretion. During the Due Diligence Period, the Agency shall permit the Developer, its engineers, analysts, contractors and agents to conduct such physical inspections and testing of the Agency Parcel as the Developer deems prudent with respect to the physical condition of the Site, including the inspection or investigation of soil and subsurface soil geotechnical condition, drainage, seismic and other geological and topographical matters, and for purposes of surveying the potential presence of any hazardous substances, if any. Any such investigation work on the Agency Parcel may be conducted by the Developer and/or its agents during any normal business hours upon seventy-two (72) hours prior wrinen notice delivered to the Agency, which notice will include a description of any investigation work or tests to be conducted by the Developer on the Agency Parcel. Upon the Agency's request, the Developer will provide the Agency with copies of any test results to the extent it is not contractually prohibited from doing so and further, to the extent that the delivery of such copies to the Agency shall impose no cost or other liability upon the Developer. ......- CENTURY HOMES DDA -7.13~6 -13- P 'AgendaslAicnda Auachmcnl$\Agm1.s-Amcnd 2006\07.24-06 Cenlury Homes DDA - TS draA 7-13-06 doc .~ -- 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, including federal and state laws pertaining to the presence or protection of threatened or endangered species, other United States Fish and Wildlife Service and/or California Department of fish and Game requirements, United States Army Corp of Eflgineer Section 404 permit requirements, and Regional Water Quality Control. Board requirements, which relate to the use and development and improvement of the Site. The Agency shall cooperate fully to assist the Developer in completing such inspections and investigations of the condition of the Agency Parcel. The Agency shall have the right, but not the obligation, to accompany the Developer during such investigations and/or inspections. (b) Immediately following the commencement of the Due Diligence Period, the Developer may, at its expense, cause the preparation of a preliminary environmental site assessment ("ESA") to determine the potential presence of hazardous substances or other unacceptable environmental conditions upon the Site. If the ESA discloses the possibility of the presence of hazardous substances or other environmental conditions which would, in the reasonable estimation of the Developer, require in excess of One Hundred Thousand Dollars ($100,000) to remediate to a level of insignificance in accordance with environmental laws, then the Developer may, without cost, expense or liability to any party, and prior to the end of the Due Diligence Period, terminate this Agreement by written notice to the Agency and the Escrow Holder. Upon receipt of such notice of termination, the Escrow shall be terminated and the Deposit shall be returned to the Developer in accordance with Section 2.02(c). Section 2.10. financing of the Public Imorovements. (a) Public Financing District. The Developer and the Agency have preliminarily identified certain public infrastructure items which will be required in connection with the development of the Project, which items are identified on the attached Exhibit J. Exhibit J does not, however, represent a comprehensive list of all the public improvements which will be required in connection with the development of the Project. The Developer and the Agency recognize that, in order to develop a comprehensive list of public improvements required to be developed in connection with the Project and potential financing methods, the Project must first be designed and submitted for review and approval by the City in accordance with the provisions of the City's Municipal Code and the California Environmental Quality Act (Public Resources Code Section 21000, et seQ.). The parties acknowledge that the City will place certain conditions and requirements on the Project to provide for the construction and dedication of all necessary local and regional public improvements required in connection' with the development of the Project. Once the City has identified those local and regional public improvements, the Developer shall, at its expense, cause the preparation of a financing plan for such public improvements, including those described in Exhibit J. The Developer anticipates that such financing plan shall include one or more public financing districts necessary to aid in financing of costs related to public infrastructure improvements and/or fees related thereto. The Agency hereby agrees to take all reasonable actions and steps to support and cooperate with Developer in Developer's request to the City that the City form a municipal financing, special tax or assessment, community facilities, or other districts and to finance such improvements through such districts, including but not limited to recommending and cooperating with and using reasonable good faith efforts to cause the City to support and approve formation of one or more municipal financing, special tax or assessment, communities facilities, or other districts and the financing of the public infrastructure improvements required for development of the Project. The Developer acknowledges that the City will retain the sole discretion to proceed with such municipal financing district and will also retain the full and absolute discretion to select and contract with all consultants, advisors, attorneys, underwriters, and appraisers for such municipal financing, and that municipal bonds will only CENTURY HOMES DDA -7-IJ.Q6 -14- P v.gcnd,u\A.gcndil Allacllmcnls,^&rmu.Amcnd 2006\07.2<4-06 Ccnt~ Homes DDA. TS dntl 7.13.06 doe -............... be issued upon credit criteria, lien to value ratios comprising a minimum ratio at 3: I, or such higher amount reasonably determined by the City, and funded debt service reserves reasonably acceptable to the City. (b) Reimbursement Agreements. It shall be condition to the Closing that the City and Developer have approved one or more reimbursement agreements in accordance with Government Code Section 66485, et seq, providing for the reimbursement to the Developer of those costs and expenses (including any special taxes or special assessments) incurred by the Developer with respect to that portion or percentage of the public improvements required in connection with the development of the Project which are of excess size, capacity, number, or length for the benefit of property not within the Site, including that certain primary access road and connector to Cable Creek Road as shown on the Site Map. The reimbursement agreements shall be reasonably acceptable in form and substance to the City and the Developer. Section 2.11. Due Diligence Approval Certificate. Prior to the expiration of the Due Diligence Period and (subject to the extensions of time set forth in Section 2.16 or otherwise in writing between the Agency and the Developer), the Developer shall complete its investigation of the physical and environmental conditions of the Agency Parcel and deliver an approval certificate signed by the Developer (the "Due Diligence Approval Certificate") to the Escrow Holder which either; (i) indicates that the Developer accepts the physical and environmental conditions of the Agency Parcel; or ',"<.-.,,>'" (ii) contains a description of the matters or exceptions relating to the condition of the Agency Parcel which the Developer was not able to accept or resolve to its satisfaction during the Due Diligence Period. If the Developer delivers a Due Diligence Approval Certificate pursuant to (ii) above, then Agency shall, within tim (10) calendar days from and after the date that Agency receives such Certificate, advise the Developer in writing whether the Agency will agree to remediate those matters or exceptions identified in the Due Diligence Approval Certificate and, if so, the Agency shall describe what actions Agency will take in order to cause such remediation. If the Agency (i) fails to advise the Developer within said ten (10) calendar day period of Agency's agreement to remediate such identified maners and/or exceptions, (ii) fails to propose a remediation which is satisfactory to the Developer in its sole and absolute discretion, or (iii) advises the Developer that the Agency does not intend to remediate any of the identified matters or exceptions, then Developer, at its discretion, may either (A) waive the objectionable matters and exceptions and proceed to the Closing, or (B) terminate this Agreement by written notice to the Agency and the Escrow Holder. Upon receipt of such notice of termination, the Escrow shall be terminated, the Deposit shall be returned to the Developer in accordance with Section 2.02(c). Section 2.12. Books and Records. As part of the Developer's due diligence 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 Agency Parcel 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 Agency Parcel which is in the possession or control of Agency. C'ENTURY HOMES DDA -7-13-06 -15- P -......'codiLs\.A'cnda Al1acllmcnl$\.A,rm$-Amcnd 2006\07-24-06 Ccnawy Homes DDA - TS draA 7.13.06 doc '-.""-"",,, - Section 2.13. Condition of the Site: Develooer'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 Agency Parcel during the Due Diligence Period. The Developer shall accept the delivery of title to the Agency Parcel on the Close of Escrow in an "AS IS," "WHERE IS" and "SUBJECT TO ALL F AUL TS" 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 Agency Parcel which the Developer may believe to be indicated. The Developer hereby acknowledges that it shall rely solely upon its own investigation of the Agency Parcel and its own review of such information and documentation as it deems appropriate for the purpose of accepting the condition and possession of the Agency Parcel. The Developer is not relying on any statement or representation by the Agency relating to the condition of the Agency Parcel 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 Agency Parcel presently comply with environmental laws or whether the Agency Parcel 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 Agency Parcel, 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 releases the Agency and its successors and assigns from any and all demands, claims, legal or administrative proceedings, losses, liability, damages, penalties, fines, judgments, 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 Agency Parcel or any law or regulation applicable thereto, including the presence or alleged presence of harmful or hazardous substances in, under or about the Agency Parcel 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 the 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 2.13 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 foliows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER, MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." CENTURY HOMES DDA -7.1J-<l6 -16- P \Allclldas\Agenda Attachmclll$\AJmU-Amcnd 2006\07.24-06 Cemury Homes DDA. TS dnift 7.IJ-06doc ~~,,~..- 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 Developer: _ The provisions of this Section 2.13 shall survive the Close of Escrow. Section 2.14. Review and Approval of Condition of Title by the Developer. -- (a) Within fifteen (15) calendar days following the Opening of Escrow, Agency shall cause to be delivered to the Developer a preliminary title report or title commitment for a CLTA standard coverage policy of title insurance issued by the Title Company, describing the condition of title of the Agency Parcel, together with copies of all exceptions specified therein and with all easements plotted but excluding matters disclosed on a survey (the "Preliminary Title Report"). The Developer shall notify the Agency in writing ("Developer's Title Objection Notice") prior to the expiration of the Due Diligence Period of any objections the Developer may have to the title exceptions contained in the Preliminary Title Report. The Agency shall have a period of five (5) business days after receipt of the Developer's Title Objection Notice in which to deliver written notice to the Developer ("Agency's Title Notice") of the Agency's election to either: (i) agree to remove the objectionable items prior to the Close of Escrow, or (ii) decline to remove any such title exceptions and terminate this Agreement and cancel the Escrow; provided, however, that the Agency shall be required to remove all monetary liens and encumbrances of record or created by or as a result of the Agency's activities. If the Agency notifies the Developer of its election to terminate this Agreement and cancel Escrow rather than remove the objectionable items, the Developer shall have the right, by written notice delivered to the Agency within five (5) business days after the Developer's receipt of the Agency's Title Notice, to agree to accept the Agency Parcel subject to the objectionable items, in which event the Agency's election to terminate this Agreement and cancel the Escrow shall be of no effect, and the Developer shall take title at the Close of Escrow subject to such objectionable title items. In the event that the Escrow is terminated by the Agency under this Section 2.14(a), the Agency shall be responsible for paying for all Escrow cancellation costs of the Escrow Holder, the Deposit shall be promptly returned to the Developer. (b) The Agency covenants not to further encumber and not to place any further liens or encumbrances on the Agency Parcel, 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 (including, but not limited to, adding additional exceptions for matters shown on the Survey as hereinafter defined), 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 2.15. Survey. The Developer shall obtain a survey of the Site as specified in Section 2.01.1 prepared by a land surveyor duly licensed by the State of California and in compliance with ALTNASCM standards ("Survey"). The Survey shall be 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 Developer shall have until the end of the Due Diligence Period to complete and examine CENTURY HOMES DDA -7.13-06 -17- P\Ai:en4as\Ai:cnda Atlachments\Ai:flT1I~-Amend 2006\07-24.06 Century Homes DCA - 15 draft 7.13-06 doc ""'-' '_.",..,r the Survey and to notify Agency in wntmg of any objections the Developer has to the Survey ("Developer's Survey Objection Notice") related to the Agency Parcel. The Agency shall have a period of five (5) business days after receipt of the Developer's Survey Objection Notice in which to deliver written notice to the Developer ("Agency's Survey Notice") of the Agency's election to either: (i) agree to remove the objectionable items prior to the Close of Escrow or (ii) decline to remove such items and terminate this Agreement and the Escrow. If the Agency notifies the Developer of its intention to not remove the objectionable items, the Developer shall have the right, by written notice delivered to the Agency within five (5) business days after the Developer's receipt of Agency's Survey Notice, to agree to accept the Agency Parcel subject to the objectionable items, in which event, the Agency's election to terminate this Agreement and cancel the Escrow shall be of no effect, and the Developer shall accept the Property at the Close of Escrow subject to such objectionable items. In the event that this Agreement is terminated by the Agency under this Section 2.15, the Agency shall be responsible for paying for all Escrow cancellation costs of the Escrow Holder and the Deposit shall be promptly returned to the Developer. Prior to the Closing, the Survey shall be recertified to the Developer, TitJeCompany and the Developer's lender, if any. The Survey will be performed at the Developer's sole cost and expense. Section 2.16. Extension of Due Diligence Period. In the event Agency fails to provide to the Developer access to the books and records as set forth in Section 2.08 by the date(s) set forth therein, the Due Diligence Period for such information shall be extended by one (l) calendar day for each day of the delay by the Agency to permit the Developer to perform an adequate due diligence review (but not to exceed a total of thirty (30) calendar days.) The Developer will use its best efforts to notify Agency of any documents the Agency has failed to deliver to the Developer within the time periods provided in Section 2.08. Section 2.17. Developer's Conditions Precedent. (a) The Developer's obligation to purchase the Agency Parcel shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied (or waived in writing by the Developer) prior to or at the Close of Escrow: (l) 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 (l) 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 of the Preliminary Title Report and the Survey, if applicable, within the time periods specified in Sections 2.01.1, 2.14 and 2.15; (3) the Developer's approval of the contents of all Due Diligence Items and the other investigations of the Site made by the Developer pursuant to Sections 2.08, 2.09 and 2. I 2 herein. The Developer shall be deemed to have disapproved such Due Diligence Items unless they are approved on or before 5 :00 p.m. on the final day of the Due Diligence Period, or such later date if the Due Diligence Period is extended pursuant to Section 2. I 6 herein; CENTURY HOMES DDA-7-13'{)6 -18- P'\Agend.a.s\Agcnda AhllChrnenls\Agrrru.Arnen4 2006\07-24-06 Cenlury Homes DDA. TS draft 7-1}.06 doc (4) the Developer's approval of any notice of change in representation or warranty given by the Agency pursuant to Section 2.26(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 obtained one or more development and construction financing loans or loan commitments to pay all costs of (i) the rough grading of the Site, (ii) the construction and installation of the public improvements required for the development of the Site, (iii) the development of the Site, and (iv) payment of all applicable City, or other governmental entities fees (except as provided in Section 2.22), on terms reasonably acceptable to it; (7) the Agency shall have satisfied (or shall have been deemed to have waived satisfaction of) each of the conditions precedent set forth in Section 2.18; (8) the Common Council of the City shall have approved the reimbursement agreements described in Section 2. I O(b); (9) the City Engineer has approved the form of subdivision improvement agreement and the subdivision completion surety bond and the payment surety bond for the installation of the public improvements required for the development of the Site by the Developer; '('''-'",-' (l0) all conditions of the Master Parcel Map have been satisfied and the Master Parcel Map is in a position to, and shall, record concurrently with the Close of Escrow; (II) the Developer shall have obtained all entitlements and other discretionary approvals, including, without implied limitation, the Density Approvals, from the City and/or Agency such that, immediately following the Close of Escrow and subject only to payment of applicable fees, Developer shall be entitled to receive building permits for the first phase of New Homes to be constructed on the Site; (12) a resolution of formation (or similar document) establishing and forming the applicable municipal financing district(s) described in Section 2.10(a) shall have been approved and certified by the Common Council of the City following all legally required notices, hearings and landowner elections; (13) a resolution authorizing the issuance by the applicable municipal financing district(s) described in subparagraph (12) above of bonded indebtedness in an amount sufficient to fund the reimbursement or acquisition obligation for a designated portion of the construction of the public infrastructure required for the development of the Project as identified in Section 2.1 O(a), or such other amount as the City and Developer may agree, has been approved and certified by the Common Council of the City following all legally required notices, hearings, and landowner elections, and the rate and method of apportionment (or other mechanism for establishing the level of assessments or special taxes on property within such municipal financing districts) shall have been approved by the Developer in its reasonably exercised discretion; CENTURY HOMES DDA -7-13-06 -19- P ''^8cnda:;\Agcnda ^ltaehmcnlSlAgrrrlS-Amcnd 2006\07.24_06 Cenll1t)' HOIT1e$ DDA. TS drall 7-13.06 dol.: (14) the Developer shall have updated its development cost estimates for the Project and shall have determined, in its reasonably exercised discretion, that the then-current development costs estimate for the Project does not materially exceed those set forth in the Project Pro Forma attached as Exhibit E; (15) the Developer and SBCFCD have concluded their negotiations for the acquisition of the SBCFCD Property upon terms and conditions acceptable to the Developer and SBCFCD and the escrow for the conveyance of the SBCFCD Property from SBCFCD to the Developer shall have closed prior to the Close of Escrow or shall be in a position to close concurrently with the Close of Escrow; (16) the Developer has obtained all approvals, permits or consents as may be required by the applicable federal and State regulatory agencies having jurisdiction over endangered or threatened species and other plants and wildlife, if any, as may be present on the Site, including any designations as to all or any portion of the Site as critical habitat for endangered or threatened species, to provide for the development of the Site upon the Close of Escrow; and (17) the Developer shall have received a "will serve" lener from the San Bernardino Water Agency, in form and substance reasonably acceptable to the Developer. "- (b) With respect to subparagraph (a)(l4) above, if the Developer reasonably determines that the then-current development costs for the Project materially exceed those set forth in the Project Pro Forma, the Close of Escrow shall be extended for a period not to exceed thirty (30) calendar days. During such thirty (30) day period, the Developer and the Agency agree to meet and confer in good faith to determine if such excess development costs may be mitigated by an appropriate amendment to this Agreement. Although the parties shall agree to meet in good faith, neither party shall be bound by any agreement so reached until such agreement is duly documented and approved by the Developer and, if necessary, the Agency's governing board and/or Common Council of the City. If, by the end of such thirtieth (30th) day, the parties have been unable to reach an agreement, then Developer may, in its sole and absolute discretion, terminate this Agreement by written notice to the Agency and the Escrow Holder. Upon receipt of such notice of termination, the Escrow shall be terminated, and the Deposit shall be returned to the Developer in accordance with Section 2.02(c). (c) The parties acknowledge that the estimates in the Project Pro Forma are subject to variations in price and timing over which the Developer has no control, and do not constitute a warranty or guaranty, but rather the Developer's best estimate based on its' experience and expertise concerning the costs therein described. The parties further recognize that subsequent to the execution of this Agreement, it may be necessary to make changes in the product mix, pricing and costs associated with the various phases of the Project to respond to market forces. Therefore, the Developer may change the product mix for each phase of the Project over the life of the Project and may change the Project Pro Forma as necessary to correspond with such changes; provided, however, that any such changes which materially deviate from the Scope of Development and other requirements of this Agreement shall be subject to approval by the Agency or its Executive Director in accordance with the terms and provisions of this Agreement and provided further that nothing contained herein shall limit or in any manner compromise the ability of the Common Council of the City and the Planning Commission of the City to disapprove any such request at their sole discretion for any such request is required to be submitted to and approved by the Common Council of the City and/or the Planning Commission of the City. CENTURY HOMES DDA - 7-13-06 -20- P \Agtlll1a~i''^icnda AlIadlmclllilAgrm.s.Amend 2006\07_24-06 Cmtlll')' Homes DOA. TS draft 7-J3.06 <kx; Section 2.18. The Agency's Conditions Precedent. The Agency's obligation to convey the Agency Parcel to the Developer shall be conditioned upon the fulfillment of the following conditions precedent, all of which shall be satisfied (or waived in writing) prior to or at the Close of Escrow: "--'~ (I) the Developer has accepted the condition of the Agency Parcel and submitted its Due Diligence Approval Certificate to the Escrow Holder on or before the date set forth in this Agreement; (2) the Developer has accepted the condition of title of the Agency Parcel on or before the date set forth in Section 2.14; (3) the Developer has obtained development and one or more development construction financing loans or loan commitments to pay all costs of (i) the rough grading of the Site, (ii) the construction and installation of the public improvements required for the development of the Site, (iii) the development of the Site, and (iv) payment of all applicable City, or other governmental entities fees (except as provided in Section 2.22), on terms reasonably acceptable to it; (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; (5) the Developer shall have satisfied (or shall be deemed to have waived satisfaction of) each of the conditions precedent set forth in Section 2.17; and (6) the City Engineer and the Developer shall have each approved the form of the subdivision improvement agreement for the Site. Section 2.19. . Deliverv of Documents and Purchase Price After Closing Date by Escrow Holder. The Escrow Holder shall deliver to the Agency the Purchase Price, less sums paid to discharge any liens, less the principal value of the Note, and less Title Company and Escrow Holder costs, expenses and the various prorations chargeable to the Agency hereunder. The Escrow Holder shall deliver to the Developer within three (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. Section 2.20. Satisfaction of Conditions. Where satisfaction of any 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 furth 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 and the other party. Section 2.2 I. Termination. In the event each of the conditions set forth in Section 2.17 (in the case of the Developer) or Section 2.18 (in the case of the Agency) is not fulfilled within twenty-four (24) months after the Opening of Escrow (subject to Sections 2.16 and 6.06, if applicable) or waived by the party for whose benefit the condition exists, any party may, at its option, terminate this Agreement and CENTURY HOMES DDA - 7-13,<)6 -21- P IAgen4aslAselKb ^lt~hml;nls\Agnru.Amend 2006\07-2....06 Cmlury Homes DDA. 15 dniJ\ 7.l).06dlx '- cancel the Escrow opened hereunder, thereby releasing the parties from further obligations hereunder and all documents delivered by the Developer to the Agency or the Escrow Holder shall be returned to the Developer and all documents delivered by the Agency to the Developer or the Escrow Holder shall be returned to the Agency. The Deposit shall be disbursed to the Developer as set forth in Section 2.02(c). Nothing in this Section 2.21 shall: (i) be construed as releasing any party from liability for any default of its obligations hereunder or breach of its representations and warranties under this Agreement occurring prior to the termination of this Agreement and/or the cancellation of the Escrow; or (ii) affect the right of any party to terminate this Agreement pursuant to Section 2.03. Section 2.22 1994 School Mitigation Agreement and Develooer Payment to City of San Bernardino in Lieu Fees for First 245 Site Lots. (a) In the event the School District fails to honor the 1994 School Fee Agreement and demands the payment by the Developer of a School Fee directly to the School District in addition to the Ten Thousand Dollars ($10,000) per Site Lot as shall be remitted by the Developer to the Agency pursuant to this Agreement, or if such School Fee as demanded by the School District exceeds said Ten Thousand Dollars ($10,000) per Site Lot, the Developer shall seek a reimbursement from the Agency of any amounts previously paid by the Developer to the School District representing such Ten Thousand Dollar ($10,000) amount upon any such failure of the School District to honor the 1994 School Fee Agreement. The amount of such Agency reimbursement obligation shall not exceed an amount equal to Ten Thousand Dollars ($10,000) per Site Lot, and the Developer shall additionally pay those amounts of the School Fee which are in excess of said cost ofTen Thousand Dollars ($10,000) per Site Lot. In the event the Developer has not previously remitted the amount of Ten Thousand Dollars ($10,000) per Site Lot to the Agency and the Developer is required to pay a School Fee directly to the School District, the "--- Agency shall forego the receipt of any payments from the Developer of said amount on a per Site Lot basis as may be actually paid by the Developer to the School District towards the Ten Thousand Dollars ($10,000) per Sit Lot. Under such circumstances, the Developer shall additionally pay those amounts of the School Fee which are in excess of said cost ofTen Thousand Dollars ($10,000) per Site Lot. For the purposes of the second preceding sentence, the words "development of the first two hundred forty-five (245) Site Lots by the Developer" means and refers to the construction and improvement of the first two hundred forty-five (245) New Homes on the Site Lots, together with the related public infrastructure improvements, as described in the Scope of Development. (b) The Developer shall pay the Agency the sum of Ten Thousand Dollars ($10,000) for each of the first two hundred forty-five (245) Site Lots to be developed at the time of the close of escrow of the New Home on such Site Lot for a sale by the Developer to a homebuyer or upon any such sales by any successors and assigns from the Developer. Such sum shall be in addition to any other regulatory fees, capital charges, utility connection and capacity fees and other amounts due and payable to the City at the time of issuance of building permits to the Developer for any Site Lot. (c) The provisions of this Section 2.22 shall apply only to the first two hundred forty- five (245) Site Lots. For each Site Lot in excess of two hundred forty-five (245), the Developer (or other legally responsible party) shall pay such School Fees imposed by the School District in connection with the development of the Project at the time and in the amount then currently in effect. Section 2.23. Prorations. Closing Costs. Possession. (a) Proration of Taxes. Real property taxes (if any) for the Agency Parcel for the tax year in which the Closing occurs 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 CENTURY HOMES DDA -7.13-06 -22- 1> Aiendas'^icnda Anachrnentsl.AifTT1Is-Amcnd 2006\07.24-06 emIliI)' Honv::s DDA - TS draft 7_11-06.00<; '-.C"._ 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 II :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 Agency Parcel, changes in ownership, errors by the Assessor or otherwise. The Agency shall pay on or before the Closing all property taxes, delinquent assessments, penalties and interest with respect to the period of time prior to the Agency acquisition of the Agency Parcel during which the Agency Parcel was real property subject to real property taxation while owned by any prior private owners of the Agency Parcel. (b) Parcel immediately Developer: Possession. The Developer shall be entitled to exclusive possession of the Agency upon the Close of Escrow. The Agency shall upon the written request of the (A) grant to the Developer a temporary license to enter the Agency Parcel prior to the Closing Date for the following purpose: (i) to remove weeds, surface debris, and graffiti from the Agency Parcel; (ii) to conduct surveys, intrusive soil engineering testing, and inspection of any existing improvements on the Agency Parcel; (iii) to install temporary subdivision land sales advertising signs on the Agency Parcel as permitted under the City sign ordinance; (iv) to conduct such other limited work of pre development investigation as may be approved by the Agency in its sole discretion; or (B) Provided that the Developer has delivered its Due Diligence Approval Certificate and has deposited into the Escrow all funds required by this Agreement to be deposited prior to such date, grant to the Developer a temporary license to enter the Agency Parcel prior to Closing Date to perform the "Work", as this term is defined in the Temporary License Agreement for the Grading and Improvement of Land in the form attached hereto as Exhibit H. (C) Prior to the entry by the Developer onto any portion of the Agency Parcel pursuant to such a license under Section 2.23(b )(A), above, the Developer shall execute a written license agreement affecting the Agency Parcel in a form to be provided by the Agency in which the Developer shall agree to indemnify, defend and hold the Agency harmless from any adverse exceptions to title in the Agency Parcel which may arise prior to the Closing Date by virtue of the Developer's entry onto the Agency Parcel, or any portion thereof and the Developer shall further agree to indemnify, defend and hold CENTURY HOMES DDA -7.J3.Q6 -23- P'\AgendaslAienaa ^lIacluTlelllslAglTl1l$-^mend 2006\07.24.06 Century Homes DD^. TS Gmt 7.13.06 doc --........ the Agency harmless from and against any other claim, cause of action, liability or damage to persons or to property resulting from the activities of the Developer on the Agency Parcel or any portion thereof pursuant to such license agreement. Prior to the entry by the Developer onto the Agency Parcel to perform any work authorized under Section 2.23(b)(B), the Developer shall execute the Temporary License Agreement for the Grading and Improvement of Land and deliver the grading work completion surety bond and other insurance to the Agency as called for therein. (D) The date upon which the Developer commences any work upon the Site pursuant to a license under Section 2.23(b)(B) is hereinafter referred to as the "Site Entry Date." (c) Title Insurance Premium Escrow and Closing Costs. The Agency shall pay the cost of the premium for a CL T A owner's standard coverage policy of title insurance on the Agency Parcel in the amount of the Purchase Price, together with all title charges (including endorsements reasonably requested by the Developer to remove disapproved items shown on the Preliminary Title Report or Survey pursuant to Sections 2.14 and 2.15 above), and the Agency shall also pay any documentary or other transfer taxes payable on account of the conveyance of the Agency Parcel to the Developer, together with one-half (y,) 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 pay the additional cost of the Survey and requested ALTA survey policy endorsements (to the extent such endorsements are unrelated to removal of any disapproved items shown on the Preliminary Title Report or Survey pursuant to Sections 2.14 and 2.15 above) which exceeds the premium for a CL T A owner's standard coverage policy of title insurance on the Agency Parcel plus the cost of recording the Agency Grant Deed, together with one-half (y,) 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. 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 an estimated closing costs 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 Site 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 2.24. BREACH OF ARTICLE II BY THE AGENCY PRIOR TO CLOSE OF ESCROW DATE: DEVELOPER'S ELECTION RE SPECIFIC PERFORMANCE OR LIOUIDATED DAMAGES. In the event that the Agency commits a material breach of its obligations under this Article II prior to the Close of Escrow and fails to cure such breach following notice and opportunity to cure in accordance with Article V hereof, the Developer shall elect, in its sole and absolute discretion, one of the following as its exclusive remedy for such breach: (a) The Developer may institute an action for specific performance pursuant to Civil Code Section 3389, and in connection therewith, may record a notice of pendency of action against the Site; OR CENTURY HOMES DDA -7-13-06 -24- P\Agend.u\Agellda Anac/lmenls\A~i-Amc:Rd 2006\07-24-06 CemllT)' H0rne5 DDA - TS dr:r.ft 7.13.06 do<; (b) The Developer shall receive from the Agency the sum of One Hundred Fifty Thousand Dollars ($150,000) as liquidated damages. -- THE AGENCY AND THE DEVELOPER AGREE THAT THE DAMAGES THAT THE DEVELOPER WILL INCUR BY REASON OF THE AGENCY'S UNCURED MATERIAL BREACH ARE AND WILL BE IMPMCTICAL AND EXTREMELY DIFFICULT TO ESTABLISH. THE DEVELOPER AND THE AGENCY, IN A REASONABLE EFFORT TO ASCERTAIN WHAT THE DEVELOPER'S DAMAGES WOULD BE IN THE EVENT OF SUCH A DEFAULT BY THE AGENCY, HAVE AGREED THAT SUCH DAMAGES SHALL BE IN AN AMOUNT EQUAL TO THE SUM OF ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) AS LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE DEVELOPER IN THE EVENT OF SUCH DEFAULT BY THE AGENCY UPON THE TERMINATION OF THIS AGREEMENT AND CANCELLATION OF THE ESCROW, AS LIQUIDATED DAMAGES, WHICH DAMAGES SHALL BE THE DEVELOPER'S SOLE AND EXCLUSIVE REMEDY AT LAW OR IN EQUITY IN THE EVENT OF AND FOR SUCH DEFAULT BY THE AGENCY; PROVIDED, HOWEVER, THAT NOTHING IN THIS SECTION 2.24(b) SHALL OPEMTE TO PRECLUDE THE DEVELOPER FROM RECEIVING THE RETURN OF THE DEPOSIT IN ACCORDANCE WITH SECTION 2.02(c) IN ADDITION TO RECEIVING LIQUIDATED DAMAGES. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PAMGMPH, AND SUBJECT TO THE DEVELOPER'S ELECTION TO PROCEED PURSUANT TO THIS SUBSECTION (b) OF THIS SECTION 2.24, THE DEVELOPER WAIVES ANY AND ALL RIGHTS WHICH THE DEVELOPER OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT. THE DEVELOPER AND THE AGENCY 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 Agency Initials of Developer Section 2.25. BREACH BY THE DEVELOPER OF ARTICLE iI PRIOR TO THE CLOSE OF ESCROW: LIOUIDATED 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 AND FAILS TO CURE SUCH BREACH FOLLOWING NOTICE AND OPPORTUNITY TO CURE IN ACCORDANCE WITH ARTICLE V HEREOF, THE DAMAGES THAT THE AGENCY WILL INCUR BY REASON THEREOF ARE AND WILL BE IMPMCTICAL 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 DAMAGES SHALL BE IN AN AMOUNT EQUAL TO THE SUM OF ONE HUNDRED FIFTY THOUSAND DOLLARS ($150,000) AS LIQUIDATED DAMAGES. SUCH SUM SHALL BE PAID TO THE AGENCY IN THE EVENT OF SUCH 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 PRIOR TO THE CLOSE OF ESCROW. WITHOUT LIMITING THE FOREGOING PROVISIONS OF THIS PARAGMPH, THE AGENCY WAIVES ANY AND ALL RIGHTS WHICH THE AGENCY OTHERWISE WOULD HAVE HAD UNDER CIVIL CODE SECTION 3389 TO SPECIFICALLY ENFORCE THIS AGREEMENT, THE AGENCY AND CENTURY HOMES DDA -7.1)~6 -25- P \Agendasv\gen4a Au;w.:hlll\:lll.s\Ai"nn-Amcnd 2006\07-2'--06 CCnllll)' HOfT"IQ DOA - TS draft 7.lJ-%_doc 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 Agency Initials of Developer Section 2.26. Reoresentations and Warranties. (a) Warranties and Reoresentations by the Agency. The Agency hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by the Developer has been made and the acquisition by the Developer of the Site will have been made in material reliance by the Developer on such covenants, representations and warranties: (I) 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. (3) Requisite Action. The Agency has taken all requisite action and obtained all requisite consents for agreements or matters to which the Agency is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby. (4) Enforceability of Agreement. The persons executing any instruments for or on behalf of the Agency have been authorized to act qn 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, shall 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 and to the Agency Parcel. (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, with respect to the CENTURY HOMES DDA -7.13.06 -26- P \Agrndas'AI~nda Altachmenl51A&mu-Amend 2006\07-24-06 Cenllll)' Homes DOA. TS 4raft 7.lJ.06c1oc Agency Parcel, 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 Agency Parcel 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 Agency Parcel 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, service, repair, development, improvement or ownership of the Agency Parcel which will survive the Close of Escrow except as may be disclosed to the Developer by the Agency prior to the end of the Developer's Due Diligence Period. (9) Special Studies Zone. The Agency Parcel is not, to the best knowledge of the Agency, located within a designated earthquake fault zone pursuant to California Public Resources Code Section 2621.9 or 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. (10) The Agency's Knowledge. For purposes of this Section 2.26(a), the terms "to the best of the Agency's knowledge" or "to the Agency's knowledge" shall mean the actual knowledge of Maggie Pacheco, Executive Director. (II) No Breach. 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 Agency is a party or by which the Agency 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 Agency or to the Agency Parcel. 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 2.26(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. CENTURY HOMES DDA-7.1J.()6 -27- PlAgendaslAgc:nda Attadm1cnu\A&ffilIii-A1l'IC'rw;l2006\07-24-06 CcntlU)' Homes DOA - TS dnli. 7-13-06 dol.: (b) Warranties and Representations bv Developer. Developer hereby makes the following representations, covenants and warrantIes and acknowledges that the exe~ution of this Agreement by the Agency has been made in material reliance by the Agency on such covenants, representations and warranties: (I) Developer is a duly organized and validly existing California limited partnership. 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 Developer hereby represent and warrant that such persons have the power, right and authority to bind Developer. (2) 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 for Developer's authorization to enter into this Agreement. (3) This Agreement is, and all agreements, instruments and documents to be executed by Developer pursuant to this Agreement shall be, duly executed by and are or shall be valid and legally binding upon 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 Developer is a party or by which 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 Developer or to the Agency Parcel. '"~...,- (5) The representations and warranties of Developer contained in this Section 2.26(b) shall be based upon the actual knowledge of John W. Pavelak. All representations and warranties contained in this Section 2.26(b) are true and correct on the date hereof and on the Closing Date and 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 2.27. Damage. Destruction and Condemnation. Prior to the later of Agency's delivery of possession of the Agency Parcel to the Developer or the Close of Escrow, the risk ofloss or damage to the Site shall remain upon the Agency. If the Agency Parcel suffers damages as a result of any casualty prior to either of the applicable dates set forth in the preceding sentence which may materially diminish its value, then the Agency shall give written notice thereof to Developer promptly after the occurrence of the casualty. The Developer can elect to either: (i) accept the Agency Parcel in its damaged condition or (ii) the Developer may terminate this Agreement and recover the Deposit as set forth in Section 2.02(c). The Developer shall confirm the exercise of its election under subparagraph (i) or (ii) of the preceding sentence within thirty (30) calendar days of its receipt of notice from the Agency. CENTURY HOMES DDA -7-13'{)6 -28- PlAgenda$\Agenaa AlIachmenls\AjnTl$-Amend 2006\07.24.06 Centlll)' HomeI DDA . TS 4nll '.13-Ob doc '-._,~~-^. -- In the event that, prior to the Close of Escrow, any governmental entity shall commence any actior.s of eminent domain or similar type proceedings to take any portion of the Agency Parcel, the Agency shall give prompt written notice thereof to Developer, and Developer shall have the option either: (i) to elect not to acquire the Agency Parcel, terminate the Agreement and recover the Deposit as set forth in Section 2.02(c); or (ii) the Developer may complete the acquisition of the Agency Parcel, in which case 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 thirty (30) days of its receipt of notice from the Agency. ARTICLE III DEVELOPMENT OF THE ~ITE Section 3.01. Development bv Developer. (a) Scope of Development. It is the intent of the parties that the Site be developed with approximately two hundred seventy-nine (279) single family detached residential dwelling units, (each referred to as a "New Home"), together with all on and off-site improvements such as streets, curbs, sidewalks, storm drains, gutter, utilities, etc (e.g., the public improvements necessary for the development of the Site). (b) The City's zoning ordinance and the City's building requirements will be applicable to the use and development of the Site pursuant to this Agreement. The Developer acknowledges that, in connection with the Density Approvals and other entitlements for the Project, the City may require further environmental analysis and mitigation in accordance with the provisions of \he California Environmental Quality Act (Public Resources Code Section 21000, et seq.). The Developer agrees to comply with all City imposed requirements concerning the same. Nothing contained herein shall prevent the Developer from contesting any conditions or approval or further negotiating such conditions of approval with the City. The Developer acknowledges that any change in the plans for development of the New Homes on the Site 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 Site or to the Developer, any successor in interest of the Developer or any successor in interest pertaining to the Site, except by modification or variance approved by the City consistent with this Agreement. (c) Subject to the Developer's receipt of the Density Approvals, the Scope of Development set forth in Exhibit B is hereby approved by the Agency upon its execution of this Agreement. The Site 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 and the mutual approval of any such change shall not be unreasonably conditioned, withheld or delayed. The approval by the City shall be deemed to be approval by the Agency of the preliminary and final construction plans for the New Homes and preliminary and final landscaping plans, if such plans approved by the City are reasonably consistent with the approved Scope of Development. CENTURY HOMES DDA-7-1J-06 -29- P vl.8cndas\Agcnda Auadlmell1slAiTTTlU-Amend 2006\07_24-06 COlIill)' Homes DDA - 15 dr:I.ft 7-13-06 doc (d) The approval of the Scope of Development by the Agency hereunder shall not be binding upon the Common Council of the City or the Planning Commission of the City with respect to any regulatory approvals relating to the improvement of the New Homes and/or the public improvements necessary for the development of the Site as may be required by such other bodies. If any material change of the Scope of Development as previously approved by the Agency shall be required by another government official, agency, department or bureau having jurisdiction over the development of the Site, 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 or delay approval of such revisions to the Scope of Development. The Agency makes no commitment or representation that any such other government official, agency department or bureau, including but not limited to, the Common Council of the City and the Planning Commission of the City, will in fact approve any such changes as may be requested by the Developer. (e) Notwithstanding any provision to the contrary in this Agreement, the Developer agrees to accept and comply fully with any and all conditions of approval applicable to all permits and other governmental actions affecting the development of the Site and consistent with this Agreement. Nothing contained herein shall prevent the Developer from contesting any conditions or approval or further negotiating such conditions of approval with the applicable governmental agency. -.. (I) The Developer shall cause landscaping plans in connection with development of the Site to be prepared by a licensed landscape architect. The Developer shall prepare and submit to the City for its approval, preliminary and final landscaping plans for the Site 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 Site, including the public improvements necessary for the development of the Site, consistent with the Scope of Development; to the City. The development plans, construction drawings and related documents submitted by the Developer to the City shall be in the form of final drawings, plans and specifications. Such final 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 New Homes and the public improvements necessary for the development of the Site, 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. (i) The Agency shall have the right to review all plans, drawings and related documents pertinent to the development of the Site in order to ensure that they are consistent with this Agreement and with the Scope of Development. (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 Site, in accordance with the CENTURY HOMES DDA -7.13-06 -30- P \Allcndas\Allcnda AuachmeNsl.AllfTTlU-Amclk! 2006107.24.06 Cemul)' Homes DDA - TS dran 7.13.06 do(: '",~ City's requirements and in such form and substance so as to obtain the City's approval thereof. The Agency shall cooperate with and shall assist the Developer in order for the Developer to obtain the approval of any and all development plans, construction drawings and related documents submitted by the Developer to the City consistent with this Agreement within ninety (90) calendar days following the City's receipt of said plans. Any failure by the City to approve any of such plans or to issue necessary permits for the development of the Site within said ninety (90) calendar day period shall constitute an enforced delay hereunder, and the Schedule of Performance shall be extended by that period of time beyond said ninety (90) 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 sixty (60) calendar days after receipt of such disapproval revise and resubmit such plans In the event the reason for such disapproval by the City was the inadequacy or poor quality of the information or documents as so submitted by the Developer to the City, no extension of time shall thereupon be afforded to the Developer either pursuant to this Section 3.01(j) or Section 2.06. (k) The Agency agrees to reasonably cooperate and assist the Developer in connection with the transactions and processes set forth in this Section 3.01 and elsewhere in this Agreement. -- (I) The Agency shall approve any modified or revised plans, drawings and related documents to which reference is made in this Agreement as long as such modified or revised plans, drawings and related documents are generally consistent with the Scope of Development and any other plans which have been approved by the Agency. Upon any disapproval of such modified or revised plans, drawings or related documents, the Agency shall state in writing the reasons for such disapproval. The Developer, upon receipt of notice of any disapproval, shall promptly revise such disapproved portions of the plans, drawings or related documents in a manner that addresses the reasons for disapproval and reasonably meets the requirements of the Agency in order to obtain the Agency's approval thereof. The Developer shall resubmit such revised plans, drawings and related documents to the Agency as soon as possible after its receipt of the notice of disapproval and, in any event, no later than sixty (60) calendar days thereafter. The Agency shall approve or disapprove such revised plans, drawings and related documents in the same manner and within the same times as provided in this Section 3.01 for approval or disapproval of plans, drawings and related documents initially submitted to the Agency, and if no specific time for approval if specified then the Agency shall so approve or disapprove the proposed modifications or revisions promptly upon the written request of the Developer. (m) If the Developer desires to make any material change in the final construction drawings, plans and specifications and related documents after their approval by the Agency and/or the City, the Developer shall submit the proposed change in writing to the Agency and/or the City for approval. The Agency shall notify the Developer of approval or disapproval thereof in writing within thirty (30) calendar days after submission to the Agency. This thirty (30) calendar day period may be extended by mutual consent of the Developer and the Agency. Any such change shall, in any event, be deemed to be approved by the Agency unless rejected, in whole or in part, by written notice thereof submitted by the Agency to the Developer, setting forth in detail the reasons therefore, and such rejection shall be made within said thirty (30) calendar day period unless extended as permitted herein. (n) The Developer, upon receipt of a notice of disapproval by the Agency and/or the City, may revise such portions of the proposed change in construction drawings, plans and specifications and related documents as are rejected and shall thereafter resubmit such revisions to the Agency and/or the City for approval in the manner provided in Section 3.01(j) hereof. CENTURY HOMES DDA - 7-13.()6 -31- P lAicJ1iW\Agcnoia AllaChmcnU\Aam1.$.Amcnd 2006\07-24-06 Cenlury Homes DDA - IS drllft 7. I 3.()(, dot -- ""''''-'''''''- (0) The Developer shall have the right during the course of construction to make changes in construction concerning the interior design of the New Homes and "minor field changes" with respect 10 the New Homes, and to make "minor field changes" to the public improvements necessary for the development of the Site 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 New Home or the ability of the City to accept the completion of the public improvements necessary for the development of the Site; and further provided that the City has approved any and all such minor field change to either a New Home or the public improvements necessary for the development of the Site in accordance with the standards and practices of the City Building Department and/or City Public Works Department, as applicable. Said "minor field changes" shall be defined as those changes from the approved final 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 or Public Works Department requirements governing such "minor field changes" or in any and all approvals by the City otherwise required for such "minor field changes." Any such "minor field changes" relative to public improvements to be funded or reimbursed from the proceeds of any municipal financing district shall additionally comply with the requirements applicable to the use of such public funds attributable to said municipal financing districts. (P) Except as otherwise specified in this Agreement, the cost of constructing the New Homes and all other improvements on the Site shall be paid for by the Developer. The Developer shall not be responsible for the payment of any costs, fees, or other expenses, including payment of fees or the costs of mitigation measures adopted in connection with the California Environmental Quality Act (Public Resources Code Section 21000, et ~, except those directly related to the development of the residential units on the Site and the development of the offsite improvements (other than the Community Park) required in connection therewith, subject to the Developer's rights to reimbursement in accordance with the reimbursement agreements described in Section 2.1 O(b). (q) The Developer shall at its expense cause to be prepared, and shall pay any and all fees pertaining to the review and approval thereof by the City, all required construction, planning and other documents reasonably required by governmental bodies pertinent to the development of the Site hereunder including, but not limited to the public improvements necessary for the development of the Site and to the specifications, drawings, plans, maps, permit applications, lapd use applications, zoning applications and design review documents for the New Homes. (r) 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 Site. 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. (s) Upon recelvmg all necessary City approvals, the Developer shall begin and complete all construction and development and undertake all obligations and responsibilities of the Developer 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 CENTURY HOMES DDA - 7-1J.Q6 -32- P \Allcndali\AgcOOa Anachmell1$l.A&fl11I$.Amend 2006\07-24-06 CCl'1I\11)' Homes DDA. TS dni.ft 7.1}-Q6 doc shall be extended as provided in paragraphs (j) or (m) of this Section 3.01 or as specified in Section 6.06, provided that the documents, information or other items submitted by the developer are not disapproved because of the inadequacy or poor quality of the documents, information or items as so submitted. (t) Prior to and during the period of construction of the New Homes and the public improvements necessary for the development of the Site, 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 twelve (I2) weeks. The reports shall be in such form and detail as may reasonably be required by the Agency. In addition, the Developer will attend Agency meetings when requested to do so by Agency Staff. '",.....,"'.- (u) Prior to the commencement of any construction on the Site, 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) combined single limit, naming the Agency and the City 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 arrest. 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) 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 Site as obtained by the Agency shall not be transferred from the Agency to the Developer. Appropriate insurance means those insurance policies approved by the Agency Counsel consistent with the foregoing. Any and all insurance required hereunder shall be maintained and kept in force until the Agency has issued the Certificate of Completion. (v) The Developer for itself and its successors and assigns agrees that in the construction of the New Homes and the public improvements necessary for the development of the Site, 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. (w) The Developer shall carry out its construction of the improvements of the New Homes and the public improvements necessary for the development of the Site in conformity with all applicable laws, including all applicable State labor standards and requirements and with respect to the development of the Site and subject to the requirements of any municipal financing district with respect to the payment or reimbursement for the costs of certain publicly financed infrastructure components through municipal bonds of a financing district. CENTURY HOMES DDA - 7-13-<)6 -33- P ,,^&cn.:bs.\Aicnda AnacluTlrlllslAsmu-AI'I1C'lId 2006'107.24-06 Cmllll')' Homes DOA. . TS dnifi '.13-Olidoc (x) Except as provided in subparagraph (y) below, 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 including, but not limited to, permits for flags and signs on the Site and, upon completion of applicable portions of the development of the Site, certificates of occupancy. (y) The parties anticipate that certain permits and entitlements may be required from the U.S. Department of Fish and Wildlife Services ("USFWS"), the United States Army Corps of Engineers ("ACOE"), and/or the California Department of Fish and Game ("DFG") in connection with the development of the Project, including, without implied limitation, development of the storm drainage infrastructure. The Agency shall, or shall exercise reasonable good faith efforts to cause the City or SBCFCD to, submit in the Agency's, City's or SBCFCD's name applications to USFWS, ACOE, and/or DFG, as appropriate, for those permits and entitlements required from such agencies in connection with the development of the Project. The Agency/City shall meet and confer with the Developer prior to the submission of any such applications and shall further consult with the Developer prior to the preparation and submission of any proposed mitigation measures, mitigation monitoring plans, or any other matters which directly or indirectly impact the Project and/or the Site. The Developer shall be responsible, at its sole cost and expense, for the cost of compliance with any and all mitigation measures lawfully imposed by USFWS, ACOE, and/or DFG in connection with the granting of such permits and entitlements; provided, however, that if any such permit or entitlement encompasses an area and/or development other than the Site or the Project, the Developer shall be responsible only for a prorated share of such costs and neither the City nor the Agency shall be responsible for the payment of the remaining prorated share for which the Developer is not responsible for the costs thereof. ~._' (z) Officers, employees, agents or representatives of the Agency and the City shall have the right of reasonable access to the Site, without the payment of charges or fees, during normal construction hours during the period of construction for the purposes of this Agreement including, but not limited to, the inspection of the work being performed in constructing the residences on the Site. Such officers, employees, agents or representatives of the Agency and/or the City shall be those persons who are so identified by the Executive Director. Any and all officers, employees, agents or representatives of the Agency and the City who enter the Site pursuant hereto shall identify themselves at the job site office upon their entrance on to the Site and shall at all times be accompanied by a representative of the Developer while on the Site; 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, defend 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. (aa) The Agency shall inspect relevant portions of the construction Site prior to issuing any wrinen statements reflecting adversely on the Developer's compliance with the terms and conditions of this Agreement pertaining to development of the Site; provided however, that the Developer has not objected to such an inspection by the Agency or otherwise prevented the Agency from conducting such an inspection. CENTURY HOMES DDA -7-1).Q6 -34- P\AlI,elldas\ASenGa ^1ta.;:hmenl$''^i~.AITICfl(j 2006\07.24.06 Celllllry Home$ DDA - TS dn.li 7-13-06.doc "'".....">" "- ebb) Without limiting or modifying the application of Government Code Section 66462.5, the Agency agrees and shall exercise reasonable good faith efforts to cause the City and/or SBCFCD to negotiate in good faith with the Developer concerning the acquisition and conveyance of any property (including, without implied limitation, the SBCFCD Property) or property interests which are reasonably required for or convenient to the construction of any off-site public improvements required for the development of the Project or which render development of the Site more feasible or practical, e.g., acquisitions to square off boundaries. The parties recognize that nothing herein shall constitute an obligation, commitment or representation that such properties will be acquired and conveyed by condemnation, or at all. Except as may be otherwise provided by relevant provisions of the Government Code, neither the City, the Agency, SBCFCD, nor the Developer shall have any obligation to acquire and/or convey such property or property interests, or construct any public or private improvements thereon unless and until they reduce their agreement to a writing which is duly approved by their respective authorities. Section 3.02. Developer's Mass Grading of Community Park Parcel. Contingent upon: (I) the Agency's ability to obtain whatever interest it deems necessary for the development of the Community Park from the SBCFCD, and (2) the negotiation and execution of a site entry and grading agreement reasonably acceptable to both the Agency and the Developer, the Developer agrees to complete, or agrees to cause, the mass grading of the Community Park Parcel in accordance with plans and specifications for the Community Park prepared by the City at its sole cost and expense and reasonably acceptable to the Developer. The Developer's mass grading of the Community Park Parcel shall occur concurrently with its grading of the adjacent Site. The Agency and the Developer agree to cooperate to ensure that the Community Park Parcel is ready for grading activities at the same time that the Developer is prepared to begin grading of the adjacent portion of the Site. The Developer's mass grading of the Community Park Parcel shall be at Developer's sole cost and expense; provided, however, that in the event that the Developer elects not to construct a flood control retention basin in connection with its development of the Site, the Agency shall, at its sole cost and expense, acquire such clean fill dirt as needed to complete the mass rough grading of the Community Park Parcel in accordance with the plans and specifications hereinabove described. Section 3.03. Property Taxes and Assessments. The Developer shall pay prior to the delinquency all real property taxes and assessments assessed and levied on or against the Site 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. Section 3.04. Prohibition Against Transfer; Release of Site Lots Upon Sale to Ultimate Purchaser. (a) Except as otherwise permitted by Section 1.04, prior to the recordation of the Certificate of Completion (defined in Section 3.07), the Developer shall not, without prior written approval of the Agency, which may not be unreasonably withheld, delayed or conditioned, or except as permitted by this Agreement, (i) assign or attempt to assign this Agreement or any right herein or (ii) make any total or partial sale, transfer, conveyance, lease, leaseback, or assignment of the whole or any part of the Site except for final sale or lease. CENTURY HOMES DDA-)-13-Q6 -35- P IAgendas\Ascnda AlIachmenli1,A8"fU-Amend 2006\07-2.-06 CcntlU')' HOlTIe$ DDA . TS <hft 7-13-06doc (b) In the absence of specific written agreement or approval by the Agency, no unauthorized sale, transfer, conveyance, lease, leaseback or assignment of the Site shall be deemed to relieve the Developer from any obligations under this Agreement. (c) Developer is expressly prohibited from leasing or renting any of the Site Lots, or any structure thereon, pending final sale to a New Home buyer. (d) Effective as the date of final sale or lease (as applicable) of a Site Lot or portion of the Site, any party owning or purchasing, leasing, or otherwise acquiring any interest in the Site or the Project 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 Agency Grant Deed or other instrument of transfer. Neither the Agency nor any other person, after the final sale or lease of a Site Lot or a portion of the Site, shall have any rights, remedies or controls that it would have otherwise have or be entitled to exercise under this Agreement with respect to such Site Lot or portion of the Site as a result of a default in or breach of any provision of this Agreement, and the respective rights and obligations of the Agency and such third party shall be limited to those set forth in the Agency Grant Deed. Section 3.05. Security 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 Site are permitted before the recordation of Certificate of Completion (defined in Section 3.07 of this Agreement). The Developer shall notify the Agency in writing in advance of any mortgage, deed of trust, or other form of lien for financing if the Developer proposes to enter into the same before the recordation of the Certificate of Completion. The Developer shall not enter into any such conveyance for construction financing without the prior written approval of the Agency, which approval the Agency shall grant if: (i) 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 the like, or other acceptable persons or entities for the purpose of financing the construction of the New Homes on the Site, and (ii) such loan contains customary construction lender disbursement controls. (b) The Developer shall promptly notify the Agency of any mortgage, deed of trust or other refinancing, encumbrance or lien that has been created or attached thereto prior to completion of the construction of the improvements on the Site 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) The words "mortgage" and "deed of trust" as used herein shall be deemed to include all other customary and appropriate modes of financing real estate construction and land development. The Agency agrees to make such amendments regarding the rights of any lender as the approved lender shall reasonably require. (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 Site or to guarantee such construction or completion; provided however, that each surety under the completion and payment surety bonds delivered by the Developer to the City CENTURY HOMES DDA-7.IJ-06 -36- P "Agendas\Agenda Anadunen15lAifTT(s-Amel1d 2006107.24.06 Cenlllry Homes DDA - TS Craft 7-13-06 d<x under the terms of any subdivision improvement agreement shall not, by the virtue of any term of this Agreement, be deemed to be discharged from its obligation to the City as arises under such surety and the subdivision improvement agreement. Nothing in this Agreement shall be deemed to permit or authorize any such holder to devote the Site to any other use, or to construct any other improvement thereon, except those uses or improvements provided for or authorized by this Agreement. '- (e) Whenever the Agency shall deliver any notice or demand to the Developer with respect to any breach or default by the Developer, 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 sixty (60) calendar days after the receipt of the notice; and to add the cost thereof to 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 sixty (60) 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 sixty (60) 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) without first having expressly assumed the Developer's obligations by written agreement satisfactory to the Agency. The holder in that event must agree to complete, in the manner provided in this Agreement, the improvements to which the lien or title of such holder relates and must submit evidence satisfactory to the Agency that it has the qualifications and financial responsibility necessary to perform such obligations. Any such holder completing such improvements in accordance herewith shall be entitled, upon written request made to the Agency, to be issued a Certificate of Completion by the Agency. (f) In any case where, one hundred eighty (180) calendar days after default by the Developer under the terms of a security interest authorized by this Agreement, the holder of any such mortgage, deed of trust or other security interest creating a lien or encumbrance upon the Site or any portion thereof has not exercised the option to construct the applicable portions of the Site, or has exercised the option but has not proceeded diligently and continuously with the completion of the improvements to the Site, then in such event, 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 Site has vested in the holder, the Agency, if it so desires, shall be entitled to 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). CENTURY HOMES DDA -7,13.06 -37- P \Agendas\Aiellda AnachmeNslABmll-Amcnd ~OO6\O'.24.06 Crmlury HomtlI DDA. TS draft 7.lJ-06doc 2. All expenses, if any. incurred by the holder with respect to foreclosure. ""-_~m 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 Site, 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 applicable portion of the Site 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 Site (or any portion thereof) prior to the issuance of the Certificate of Completion, and the holder has not exercised its option to complete the development, 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 Site (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 security instruments executed by the Developer for the purpose of obtaining the funds to construct and improve the Site as authorized herein. Section 3.06. Right of the Agencv to Satisfv Other Liens on the Site after Convevance of Title. After the conveyance of title to the Site by the Agency to the Developer and prior to the recordation of the Certificate of Completion (defined in Section 3.07 of this Agreement), and after the Developer has had a reasonable time to challenge, cure or satisfy any unauthorized liens or encumbrances on the Site, the Agency shall after sixty (60) 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 require 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 Site or any portion thereof, to forfeiture or sale. Section 3.07. Certificate of Como let ion. Following the written request therefore by the Developer and the completion of the Project, excluding minor "punch-list" items to be completed by the Developer, the Agency shall furnish the Developer with a Certificate of Completion, substantially in the form set forth in Exhibit F attached hereto. (a) The Agency shall not unreasonably withhold the issuance of the Certificate of Completion. A Certificate of Completion shall be, and shall so state, that it is a conclusive determination CENTURY HOMES DDA -7-1J.{)6 -38- P \Agc-ndill;\Aicnda AllachmmulAllrTTu-Amcnd 2006\07-24-06 Century Homc:s DD... - TS dnroft 7.13-06 do( of satisfactory completion of all of the obligations of this Agreement with respect to the improvement 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 Site or Project 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 Agency Grant Deed or other instrument of transfer. Neither the Agency nor any other person, after the recordation of the Certificate of Completion, shall have any rights, remedies or controls that it would otherwise have or be entitled to exercise under this Agreement with respect to the Site or Project as a result of a default in or breach of any provision of this Agreement, and the respective rights and obligations of the parties shall be limited to those set forth in the Agency Grant Deed. (b) Any Certificate of Completion shall be in such form as to permit it to be recorded in the Recorder's Office of San Bernardino County. (c) If the Agency refuses or fails to furnish the Certificate of Completion after written request from the Developer, the Agency shall, within fifteen (I 5) calendar days after 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 wrinen statement sening forth the reasons with respect to the Agency's refusal or failure to furnish the Certificate of Completion. The statement shall also contain the Agency's opinion of the action the Developer must take to obtain the 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 "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 Site and Project as if a Certificate of Completion had been issued therefor. (d) 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 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. ARTICLE IV USE OF THE SITE Section 4.0 I. Uses. (a) The Developer covenants and agrees for itself, its successors and assigns that the Site shall be improved, developed and used in accordance with the Scope of Development. Developer covenants to develop and use the Site in conformity with all applicable laws. The covenants of this Section 4.01(a) shall run with the land until the issuance of the Certificate of Completion. CENTURY HOMES DDA -7-13.06 -39- P \Ag~ndas\Agcoda AnachmcnulA&frrli-Amcnd 2006\07-24-06 CClIIlIl)' HOmc5 DDA - TS draft 7.1).{)(jQoc Section 4.02. Maintenance of the Site. The Developer covenants and agrees for itself, its successors, and assigns to maintain the Site 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 at the Site 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 Site and undertake, such maintenance activities. In such event, the Developer (or the then-current owner of the Site or applicable Site Lot) shall reimburse the Agency for all reasonable sums incurred by it for such maintenance activities. The covenants of this Section 4.02 shall run with the land for a period of ten (IO) years following the Close of Escrow. 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 Site 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 Site; 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 tenants, lessees, subtenants, sublessee or vendees of the Site. The covenants of this Section 4.03 shall run with the land in perpetuity. '":'.~- 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 Site 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 Site (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: (a) 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." (b) 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. " CENTURY HOMES DDA -7-13-06 -40- Pv\gcnd.u\Agcnda AttacllmeiltllAgnrls-Amcnd 2006107.24.(l(i CcntW'y Homes DOA - TS draft 7.13-06 doc ~~.- (c) 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, sub lessees, 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 covenants of this Section 4.04 shall run with the land in perpetuity. Section 4.05. Effect of Covenants. The Agency is deemed the beneficiary of the terms and provisions of this Agreement and of the covenants running with the land for and in its own rights and for the purposes of protecting the interests of the community. The Agency shall have the right, if such covenants are breached, to exercise all rights and remedies and to maintain any actions or suits at law or in equity or such other proper proceedings to enforce the curing of such breaches to which it or any other beneficiary of such covenants may be entitled, including, without limitation, to specific performance, damages and injunctive relief. The Agency shall have the right to assign all of its rights and benefits hereunder to the City. ARTICLE V DEFAULTS, REMEDIES AND TERMINATION Section 5.01. Defaults - General. (a) Subject to the extensions of time set forth in Section 6.06 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. . (b) The injured party shall give written notice of default to the party in default, specifying the default complained of by the non-defaulting party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default. (c) 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. CENTURY HOMES DDA-7-1J-<l6 -41- P \Agendas'..AgeB<;!a AuacllmenlS\Agmu-Amend 2006107.24-06 Cem\lf)' Homes DDA - TS <irafl: 7.lJ-06doc (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, Interim Executive Director, or Chairperson of the Agency, or in such other marmer 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 John Pavelak (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 marmer 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 this Agreement, the rights and remedies of the parties 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. If any party defaults with regard to any provision of this Agreement following the Close of Escrow, the non-defaulting party shall serve written notice of such default upon the defaulting party. If the defaulting party does not diligently commence to cure such default within thirty (30) calendar days after service of the notice of default and promptly complete the cure of such default within a reasonable time, not to exceed ninety (90) calendar days (or such shorter period as may otherwise be specified in this Agreement for any specific default), after the service of written notice of such default, the defaulting party shall be liable to the other party for damages caused by such default. Section 5.05. Specific Performance. If any party defaults under any of the provisions of this Agreement following the Close of Escrow, the non-defaulting party shall serve written notice of such default upon such defaulting party. If the defaulting party does not commence to cure the default and diligently and continuously proceed with such cure within thiny (30) calendar days after service of the notice of default, and such default is not cured within a reasonable time thereafter (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), the non-defaulting party, at its option, may institute an action for specific performance of the terms of this Agreement, except as otherwise provided in this Agreement. ARTICLE VI GENERAL PROVISIONS Section 6.01. Notices. Dema.'1ds and Communications Between the Parties. (a) Any and all notices, documents, copies of due diligence items, demands or communications submined 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 hereof. Such written notices, demands and communications may be sent in the same marmer to such other addresses as either party may from time to time designate as provided in this Section. Any such notice, demand or CENTURY HOMES DDA - 7-13.()6 -42- P "AI~OOas\A&C~ AUlKnmcllt$\AlIllTn-Amcnd 2006\07-24-0(, Ccnhll)' Homes ODA . IS draft 7.1 ).06 doc "-,,,-- 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) calendar 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: Century Crowell Communities, LP 1535 South "D" Street, Suite 200 San Bernardino, California 92408 Attn: John W. Pavelak Attn: George Mooradian Fax: (909) 381-0041 With a copy to: Best Best & Krieger LLP 3750 University Avenue, Suite 400 Riverside, California 92501 Ann: Kevin K. Randolph Fax: (951) 686-3083 Redevelopment Agency of the City of San Bernardino 20 I North "E" Street, Suite 30 I San Bernardino, California 92401 Attn: Maggie Pacheco, Executive Director Fax: (909) 888-9413 To the Agency: With a copy to: Lewis, Brisbois, Bisgaard & Smith LLP 650 East Hospitality Lane, Suite 600 San Bernardino, California 92408 Attn: Timothy J. Sabo Fax: (909) 387-1138 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, or in the development of the Site, shall participate in any decision relating to the 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 Agency and Developer Officials and Employees. 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 CENTURY HOMES DDA-7-1J-G6 -43- P \Ag~ndas\Ai\cnda AllacluneT1lsVl.pmu-Amcnd 2006\07.24-06 Centl,lr)' HolTlCl; DDA . is Gran 7-13.06 doc the Developer or to its successor, 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. Nonliability of Developer and Agency Officials and Employees. No member, official or employee of the Developer shall be personally liable to the Agency, or any successor in interest, in the event of any default or breach by the Developer or for any amount which may become due to the Agency or to its successor, or on any obligations under the terms of this Agreement, except for gross negligence or willful acts of such member, officer or employee. Section 6.06. Enforced Delay; Extension of Time of Performance. In addition to specific provisions of this Agreement, performance by any 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 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 (provided that acts or failure to act of the City or Agency shall not extend the time for the Agency to act hereunder except for delays associated with lawsuit or injunction, including, without limitation, to lawsuits pertaining to the approval of the Agreement, and the like). 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 which claims the existence of the delay has first provided the other party with written notice of the occurrence of the delay within ten (10) calendar days after the commencement of the event which has given rise to such occurrence of delay. """-~ The inability of the Developer to obtain a satisfactory commitment from a construction lender for the improvement of the Site or to satisfy any other condition of this Agreement relating to the development of the Site 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 6.06. . 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 6.07. 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 Site, and/or the development thereof, as necessary for the Agency, in its reasonable discretion, to enforce its rights under this Agreement. 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 Deyeloper shall also have the right at all reasonable times to inspect the books and records of the Agency pertaining to the Site and/or the development thereof as pertinent to the purposes of this Agreement. CENTURY HOMES DDA-7.13'{)6 -44- PAgcOOaslAgcnda AllachmeRl$\Agmu-....mcnd 2006\07.24-06 Cenlury HomeI DDA . TS c;lraft 7-13-06 Ox Section 6.08. ApprO\'als. (a) Except as otherwise pro\'ided in this Agreement, approvals required of the Agency or the Developer, or any officers, agents or employees of either the Agency or the Developer, shall not be umeasonably withheld and approval or disapproval shall be given within the time set forth in the Schedule of Performance or, ifno 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 not exceeding sixty (60) calendar days to the Schedule ofPerfornlance. Section 6.09. Real Estate Commissions. The Agency shall not be liable for any real estate commissions, brokerage fees or finder fees related to any actions or conduct by the Developer. Section 6.10. Indemnification. The Developer agrees to indemnify and hold the City and the Agency, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to (i) any act or omission of the Developer in performing its obligations hereundcr. (ii) the approval and execution of this Agreement by the Agency, and (iii) the adoption by the City of the resolution relative to the Agency approval and execution of this Agreement. The Agency agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Agency in performing its obligations hereunder. Section 6.11. Release ofDeveloDer from Liabilitv. 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 any Site Lot or portion of the Site when that Site Lot or portion of the Site is released from the controls of this Agreement, as more particularly described in Section 3.04(d). Section 6.12. Attornevs' Fees. If any party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, or is made a party to any action or proceeding brought by the Escrow Holder or a third party, then as between the Developer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the Court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include in the case of the Agency the salaries and expenses of the lawyers employed by the Agency who may provide legal services to the Agency in connection with the representation of the Agency in any such matter, whether such lawyers are employees of the City or Agency or third parties. Section 6.13. 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. -45- ARTICLE VII E0iTIRE AGRED1E'\T, WAIVERS A'\D At\lEXDME'\T Section 7.01. Entire Agrecment. (a) This Agrcement shall be executed in two (2) duplicate originals each of which is deemed to be an original. This Agreement includes fifty-six (56) pages and twelve (12) attachments (see list of attachments at Section 1.06), which constitute the entire understanding and Agreement of the parties. (b) This Agreement integrates all of the ternlS 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 Site and the development thereof, including in that certain "Memorandum of Understanding" dated as of July 6, 2004 between the Agency and the Developer, as amended. (c) None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Agency Grant Deed conveying title to the Developer in the Site, and this Agreement shall continue in full force and effect as to each Site Lot before and after such conveyance until issuance of the Certificate of Completion for such Site Lot. (d) All waivers of the provisions ofthis Agreement and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDA nON Section 8.01. Execution and Recordation of Notice of Agreement. (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 forty-five (45) calendar days after the date of signature by the Developer. In the event that the Agency has not approved, cxecuted and delivered this Agreement to the Developer within the foregoing period, then the parties shall be mutually released from any further duties or obligations hereunder. The Effective Date of this Agrcement shall be the date when the Agreement shall have been executed by the Developer and formally approved by the Agency, notwithstanding the Agency's actual signature date. (b) The Developer and the Agency agree to permit recordation of a Notice of Agreement against the Site in the Office of the County Recorder of San Bernardino County. The form of such Notice of Agreement is attached hereto as Exhibit G. [Signatures on following pages] -46- Date: SIGNATURE PAGE TO DISPOSITION AND DEVELOPMENT AGREEMENT "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic By: Maggie Pacheco, Executive Director APPROVED AS TO LEGAL FORM: , ' ...----= /\ /i L' \ /~~^ .1/'" Agency Cou'ns~l RVPUBIKRANDOLPH\681716.15 P \Allcn.das\.-'.genda AlIachn~msAJI1nls-An~Rd 2006\07-24.00 CenlW)' Homes DDA - TS draft 7.1J..06.;Lc SIGNATURE PAGE TO DISPOSITION AND DEVELOPMENT AGREEMENT "DEVELOPER" CENTURY CROWELL COMMUNITIES, LP a California limited partnership By: Century Homes Communities, a California corporation Its: General Partner Date: By: . John W. Pavelak Its: President RVPUBIKRANDOLPHI681716.15 P ',^&cndas\AleOOa AnacbrnentslAgrm.s-Amcnd 2006\0].24.06 Ccnlllr)' Homes DDA. TS dr.!.ft 7-13.06,000; \.., EXHIBIT A TO DISPOSlTION AND DEVELOPMENT AGREEMENT Legal Description of Site EXHIBIT A RYPUBIKRANDOLPHI681716.15 P \Aiendas\Allenda At1ad1~nls\Agmu.Amend 2006\07-24-06 CenlllT)' Homes DOA - TS draft 7.13-06doc PARCEL 1: That portion of the following described property lying North of the Northerly line of the property conveyed to the State of California by deed recorded December 6, 1957 in Book 4384, Page 553 of Official Records: That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino, as shown by Map on file in Book 2, Pagels) 32 of Maps, in the Office of the County Recorder of San Bernardino County, California, described as follows: Beginning at a point on the Northerly line of the Cajon State Highway which is South 400 46' East, 283 feet from the point of intersection of the West line of said Lot 11, with the said Southerly line: thence North 020 56' East. 304 feet to the true point of beginning: thence South 87' 14' East, 312,66 feet to the Easterly line of the property deeded to Clas P. Erickson and wife, recorded June 6, 1949 in Book 2413, Page 3B7, of Official Records of San Bernardino County; thence North 00 38' East, 934 feet, more or less, to the Southerly line of the property deeded to the San Bernardino County Flood Control, as recorded in Book 1716, Page 156. of Official Records; thence along said line North 590 41 ' 15" West, 589.90 feet to the West line of said Lot 11; thence along said West line South 02' 56' West, 826 feet, more or less. to a point 500 feet from the Northerly line of said Cajon State Highway; thence South 460 46' East, 283 feet: thence South 020 56' West. 196 feet to the pOint of be9inning. PARCEL 2: That portion of 810ck 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as follows: Beginning at an iron pipe on the Northerly right of way line of California State Highway, distant South 46' 46' East, 697.40 feet from the intersection of said right of way line with the West line of said Block 11; and said point of intersection is located .North 30 4' East. 2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to an iron pipe; thence North 460 46' West. 100 feet to an iron pipe: thence parallel with the West line of said Block 11. South 30 4' West. 1146 feet to the point of beginning. Excepting therefrom that portion lying Southerly of the Northerly line of the property. as conveyed to the State of California. recorded June 6. 1957 in Book 4249, Page 130, of Official Records. PARCEL 3: All that portion of Lot 1 1. according to the Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map recorded In Book 2. Page 32 of Maps. Records of said County. lying within the following described property: That portion of Lots "j", "K", "L" and "M" according to Map showing a portion of Meyer and Barclay Subdivision, in the City of San Bernardino. as per Map recorded In Book 12, Page 18 of Maps, in the Office of the County Recorder of said County and a portIon of Lot 11, according to Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho In said County, as per Map recorded in Book 2, Page 32 of Maps, In the Office of the County Recorder of said County, described as follows: ,",,, '-..." Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as shown on the Map of the Town of Irvington recorded in Book 3. Page 9 of Maps. in the Office of the County Recorder of San Bernardino County; thence South 27" 36' 50" West 100 feet along the centerline of Cypress Avenue; thence North 620 23' 10" West, 344.47 feet to the beginning of a tangent curve concave Northeasterly and having a radius of 2,000 feet: thence, Northwesterly along the arc of said curve 1200 feet to the true point of beginning. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed to San Bernardino County Flood Control District, recorded July 27. 194B in Book 2268, Page 146 of Official Records; thence from said true point of beginning continuing along said 2,000 foot radius curve 674.48 feet; thence North 080 29' 20" West. 262.26 feet to a point on the Northerly line of said Lot "M", said point being South 890 44' 40" West. 297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West, 30.00 feet from the Southeast corner of said Lot "J"; thence North 27043' AD" West. 420.00 feet; thence continuing North 27043' 00" West. 577.00 feet; thence North 37" 00' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet from the Northeast corner thereof; thence North 37" 00' West, 400 feet. more or less, to an angle point in the Southwesterly line of Parcel No.4 in deed to San Bernardino County Flood Control District recorded July 27, 1948 in Book 2268, Page 146 of Official Records; thence North 890 15' West, 196 feet to a point on the East line of Lot "L" distant Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on the Westerly line of Lot "L" distant Southerly 9BO feet from the Northwest corner thereof; thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11, a distance of 825 feet, more or less, to the Northeast corner of the land described in deed to Jerry Berman and Sons, recorded August 26,1953 in Book 3231, Page 465, of Official Records: thence North 470 13' 46" West along the Northerly line of said Berman Land and the extension thereof 1330 feet to the Southwest corner of the land conveyed to San Bernardino County Flood Control District by deed recorded May 4. 1945 in Book 1766, Page 305 of Official Records; thence North 59041' 15" West, 277.89 feet, more or less, to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed recorded March 17, 1958 in Book 4462, Page 73 of Official Records; thence South 20 38' West along the East line thereof of 3BO feet, more or less. to the Northwest corner of the land conveyed to Flossie 1. Matthews by deed recorded January 22, 1935 in Book 1032, Page 258 of Official Records: thence South 460 46' East, 100.00 feet to the Northeast corner of said Matthews Land; thence South 30 04' West along the East line thereof 260 feet, more or less, to the Northerly line of the land conveyed to the State of California for freeway purposes; thence South 470 11' 00" East along the Northeasterly line of said State Land, 450 feet. more or less, to a point on the West line of the land conveyed to Lucile Whitman by deed recorded January 22, 1932 in Book 7B4. Page 65 of Official Records; thence North 2' 40' 06" East, 155 feet, more or less. to the Northwest corner of said Whitman Land; thence South 470 11' 35" East, 840 feet to the East line of said Lot 11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of said State of California Land; thence South 47" 11' 00" East along said Northeasterly line 1965 feet, more or less. to a point on a line extending from the most Northerly corner of Lot 15 of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps, to the point of beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the point of beginning. Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book 197, Pages 22 through 25, inclusive. Records of said County. Also excepting therefrom from portions of said land 1/2 of all oil, gas and other hydrocarbons and minerals. now or at any time hereafter Situated therem and thereunder or producible therefrom, together with the free and unlimIted nght to mine. dnll and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances as reserved in the deeds recorded in Book 3038, Page 153; Book 30B7, Page 98; Book 3585, Page 82; and in Book 4B06, Page 533, all of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil. gas and other . hydrocarbons, now or at any time hereafter situated therem and thereunder or producible therefrom, together with the free and unlimited right to mine, dnll and bore beneath the '-- surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved in the deed from Wilma H. Weaver to Wilbur Ray James. a single man, recorded August 25. 1958 in Book 4586, Page 188 of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil. gas and other hydrocarbons, now or at any time hereafter situated therein and thereunder Dr producible therefrom, together With the free and unlimited right to mine. drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved to William Casady In deed recorded in Book 4012. Page 320 of Official Records. PARCEL 4: All that certain real property located in the City of San Bernardino, described as follows: A portion of Section 2, Township 1 North, Range 5 West. San Bernardino Meridian. unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map recorded in Book 7. Page 23 of Maps, Records of said County. said parcel also being a portion of Block 11 of the Meyer and Barclay Subdivision. as per Map recorded in Book 2. Page 32 of Maps, Records of said County, more particularly described as follows: Beginning at a point on the Northerly line of the Cajon State Highway. said point being North 46' 50' West. 420 feet from the intersection of said Northerly line and the Easterly line of said block 11; thence along said Northerly line of said Cajon State Highway. North 46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11, North 20 3B' East, 1037.14 feet to a point; thence along a line parallel to said Northerly line of said Cajon State Highway. South 460 50' East. 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11, South 20 3B' West. 1037.14 feet, more Dr less, to the point of beginning. Excepting therefrom that portion lying Southerly of the Northeasterly line of that land descnbed in the deed to the State of California, recorded August 2, 1957 in Book 4294. Page 143 of Official Records of said County. PARCEL 5: All that certain real property located in the City of San Bernardino, described as follows: That portion of Block 11. Meyer and Barclay Subdivision. as per Map recorded in Book 2. Page 32 of Maps, Records of said County. described as follows: Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of the parcel conveyed to the State of California by deed recorded June 5. 1957. as Instrument No. 174, in Book 4247. Page 563. of Official Records of said County; thence North 2' 40' 6" East, 155.18 feet to the Northeasterly corner of the parcel of land conI/eyed to Harold S. Ladas by deed recorded August 12. 1959 as Instrument No. 93. in Book 4901. Page 17 of Official Records of said County; thence North 460 50' 00" West. 420 feet, more or less. to the Northwesterly corner of said Ladas land; thence South 20 40' 06" East, 155.0B feet along the West line of said Ladas Land to a point in the ~Jortheaster!y line of said parcel conveyed to the State of California; thence South 47011' 00" West. 420.06 feet to the point of beginning. SUBJECT TO REVISIONS -- TO BE BASED DN BOUNDARIES AS DETERMINED BY ALTA SURVEY EXHIBIT A-I TO DISPOSITION AND DEVELOPMENT AGREEMENT Legal Description of SBCFCD Parcel EXHIBIT A-I RVPUBIKRANDOLPH1681716,15 P \Agendas'At:enda Allach~nWAgrmu.Amend 2006\C7.24-06 Centul)' Homes DOA . TS draft 7-13.06 dol; San Bernardino Flood Control District Parcels Legal Description Parcel A: A portion of Lot II of the Re-subdivision of Meyers and Barclay Subdivision, in the Clly of San Bernardino, as shown by Map on lile in Book 12, Page 18 of Maps, in the Office of the County Recorder of San Bernardino County. California, described as follows; Commencing at the southwest comer of the land conveyed to San Bernardino Flood Control District, pcr document recorded in Book 1766, Page 305 of Official Records, thcncc South 47 degrees 13 minutes 46 seconds East, along the soulhwesterly line of the land described in document recorded in Book 1716, Page 156 of Official Records, a distance of 1328.09 feet, to the most southerly corner of said parcel of land described in document recorded in said Book 17\6, Page 156 of Official Records, said point also being the True Point of Beginning, and located on the East line of said Lot 11; thence North 02 degrees 40 minutes 02 seconds East, along said East line of Lot II, a distance of 826.47 feet; thencc South 42 degrees 46 minutes 14 seconds West a distance of 632, 15 feet, to a point on saId southwesterly line of the land describcd in document recorded in Book 1716, Page 156 of Official Records; thence South 47 degrees 13 minutes 46 seconds East, along said southwesterly line, a distance of 532.39 feet, to the True Point of Beginning. Michael L. Anderson, PLS 6916 -- -~.- ~--~----~._- Page I of 2 San Bel'nardino Flood Control District Parcels Legal Description PUI'CclB: ThaI pOl1ion of Lots "J" , "K", "(", and "M" a~cording to map showing a portion of Meyer and Barclay Subdivision, in the City of San Bernardino, as shown by map r~~ord~d in Book] 2, Page 18 of Maps, in the Office of the County Recorder of San Ilcrnardino County, California, and a portion ofBloek 82 and 83 in Irvington Land and Water Company's Subdivision of part of Muscupiabe Rancho as per map filed in Book I, Page 32 or Records or Survey, in the Oftice or the County Re~order of San Bernardino Counly. California, also togethcr with that portion of Irvington Avenue as vacated by R~Slllullon No. 92-100, recorded February 23, \992 as Instrument No, 92-123090 of Oftlciill Records, described as ll,lIows: Beginning at the northeast comer of Tract No. 12756, as per map recorded in Book \ 97, Pages 22 through 25, inclusive, of Maps, records of said county, said comer marked by a one inch iron pipe tagged L.S. 3807, thence North 47 degrees 03 minutes 41 seconds fast, a distance of 128.77 feet; then~e North 25 degrees 20 minutes 47 seconds West, a distan~e of 1406.96 fcel; thence North 29 degrees 46 minutes 28 seconds West, a distance of ] 297.60 feet; thcncc North 37 degrees 23 minutes 0] seconds West, a distancc of 357.87 feet; lh~nce North 38 degrces 11 minutes 43 se~onds Wcst, a distancc of \ 08.0 I feet to an angle point in thc southwestcrly line of Parcel 4 of said document re~orded in Book 2268, Pag~ \ 46; thence along said southwesterly linc South 30 degrees ]3 minutes 34 seconds East, dislanc~ or 696,81 fect; then~e South 28 degrees 06 minutes 59 seconds East, a distance or 997 .26 reet; thcnce South 09 dq,'Tces 03 se~onds 06 East, a distance of 263.89 feet; thence southeasterly a distan~e of 35.94 feet along a tangent curve, coneave northeasterl y, having a radius of ] 999.19 f~et and a central angle of 01 degrees 0 I minutes 4g scconds to the northwestcrly comer of Lot 65 of said Tract No. 12765; thence contJl1uing aiong said tangent curve, a distance of 1237.45 feel, through a central angle of 35 degrecs 27 minutes 53 seconds to the Point of Beginning. Mich<JeI L Anderson, PLS 6916 - --- ----- ---- Pagc 2 01'2 EXHIBIT A-2 TO DISPOSITION AND DEVELOPMENT AGREEMENT Site and Vicinity Map - EXHIBIT A-2 RVPUBIKRANDOLPHI681716,15 P IAgendaslAgenda Anachment$\Agrml$-Amend 2006\07-24-06 C'cruury HOITIe$ DOA . 1S draft '.13-06 doc PROJECT AREA DESCRIPTlO!l\S Devore Road 1- 215 Freeway Project Area 2 (279-Lot Single Family Residential Development) Project Area 1 (Retained by Redevelopment Agency for Future Park Development) Little League Drive EXHIBIT B TO DISPOSITION AND DEVELOPMENT AGREEMENT Scope of Development [Attached Behind this Page] -- EXHIBIT B RVPUBIKRANDOLPH1681716,15 p v.genda5\Aj:enda Au.:hmrnls\Apm:s-Amend 2006\07-24-06 Centllry H0mc5 DDA . T5 drllft 7-IHI6 do<: Scope of Development '-...- Each residential lot in the Site shall be referred to hereafter as a "Site Lot" and shall be a minimum of7,200 gross square feet in size. The Site shall be developed to the satisfaction of each of the conditions of the final tract maps for the Site. The Site shall be developed in accordance with this Agreement, but subject to the requirements of the subdivision map, zoning ordinance of the City and any variances or modifications therefrom as approved by the City. The Developer shall undertake the design and construction of and develop of the Site In accordance with the Schedule of Performance and this Agreement. All necessary landscaping required by City laws and approvals applicable to the Site shall be installed. The development shall be first class, constructed of quality materials, to City Code, and shall be unified in architectural theme and treatment throughout the Site and adjacent off-site areas, insofar as reasonable and practicable. All improvements to be constructed by the Developer shall be constructed or installed in accordance with the technical specifications, standards and practices of the City and all governing agencies and in accordance with the Schedule of Performance and plans and '-_ specifications approved by the City. The Developer shall cause the proper documents to be filed and fees paid to all governmental or . regulatory agencies, including utilities, for applications for all required permits and approvals. The Developer shall at its cost and expense undertake and complete any and all soils, utility and drainage studies, plans and reports that may be necessary in connection with the development of the Site and shall provide a copy of said studies and reports to the Agency. Said studies and reports shall be completed prior to the issuance of any building permits for the Site. EXHIBIT B-1 RVPUBIKRANDOLPH1681716,15 P \AJelldas\Ascn4a AltachmelllS\AifflU-Amend 2006\07-24.06 CC>UlIl)' Homes DDA - TS lhfi 7_1).06lkx; '~"'-"''''' ',-, EXHIBIT C TO DISPOSITION AND DEVELOPMENT AGREEMENT Form of Agency Grant Deed [Attached Behind This Page] EXHIBIT C RVPUBIKRANDOLPHI681716,15 I'\AaendaslAgend.a AnadlmllntslAgnru-Amend 2006\07.24-06 C~1I11)' Homes DOA . TS dnln 7.1)-06 doc RECORDING REQUESTED BY "'-. AND WHEN RECORDED RETURN TO: Century Crowell Communities, LP 1535 South "D" Street Suite 200 San Bernardino, California 92408 Exempt from Recording fee Dursuant to Gov't Code ~ 27383 (Soace above for Recorder's use) REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO GRANT DEED For valuable consideration, the 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 Century Crowell Communities, LP, a California limited partnership ("Grantee") the real property legally described in Attachment No. I and by this reference incorporated herein ("Property"). '-" I. The Property is conveyed subject to that certain Disposition and Development Agreement dated as of r 1, 2006, by and between Grantor and Grantee ("Agreement"). The provisions of the Agreement are incorporated herein by this reference and shall be deemed to be a part hereof as if set forth at length herein. 2. The Grantee covenants by and for itself, its heirs, executors, administrators 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, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property, 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, sub lessees or vendees in or on the Property. All deeds, leases or contracts made relative to the Property shall contain the following nondiscrimination clauses: (a) In deeds: "The grantee herein covenants by and for itself, its heirs, executors, administrators 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, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee, or any person claiming under or through EXHIBIT C-I RVPUBIKRANDOLPH1681716,I5 P\Aacndas\A,cnda Anachmenls\Agmu-AmeRd 2006\07.24-06 CrnLILI}' Homes DCA. is chI! 7.13-06 do<; -'---, the grantee, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, locations, number, use or occupancy of tenants, lessees, subtenants, sub lessees or vendees in or on the land herein conveyed. The foregoing covenants shall run with the land." (b) In leases: "The lessee herein covenants by and for itself, its heirs, executors, administrators 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, age, marital status, national origin or ancestry in the leasing, subleasing, transferring, use, occupancy, tenure or enjoyment of the land 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, subtenants, sublessees or vendees in the land herein leased." "-, (c) 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, age, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee 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, subtenants, sublessees or vendees of the land." 3, No violation or breach of the covenants, conditions, restrictions, provisions or limitations contained in this Grant Deed shall defeat or render invalid or in any way impair the lien or charge of any mortgage, deed of trust or other financing or security instrument permitted by the Agreement; provided, however, that any successor of Grantee to the Property shall be bound by such remaining covenants, conditions, restrictions, limitations and provisions, whether such successor's title was acquired by foreclosure, deed in lieu of foreclosure, trustee's sale or otherwise. 4. The covenants contained in this Grant Deed against discrimination shall remain in effect in perpetuity. 5. The covenants contained in this Grant Deed shall be binding for the benefit of the Grantor and its successors and assigns, and such covenants shall run in favor of the Grantor for the entire period during which such covenants shall be in full force and effect, without regard to whether the Grantor is or remains an owner of any land or interest herein to which such covenants relate. The Grantor, in the event of any breach of any such covenants, shall have the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach as provided in the Agreement or by law. The covenants contained in this Grant Deed shall be for the benefit of and shall be enforceable only by the Grantor and its successor. EXHIBIT C-2 RVPUBIKRANDOLPH1681716,I5 P\Allcndas\AaCnda Aludlmmul.AJm:ls-Amcnd 2006\07-24-06 CClllIII')' Homes DDA - 15 draft 7-13-06 doc "-- ,"-, IN WITNESS WHEREOF, the Grantor and Grantee have caused this instrument to be executed on their behalf by their respective officers thereunto duly authorized this _ day of ATTEST: Agency Secretary APPROVED AS TO LEGAL FORM: By: Agency Counsel RVPUBIKRANDOLPH1681716,15 GRANTOR; REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic By: Maggie Pacheco, Executive Director EXHIBIT C-3 P:\Aiendas\AsC'nOa Anaduncnuv.,mu.Amcnd 2006~7.24-06CenlW)' Homes DCA. TS dr1Jl '-13-06_doc ACCEPTANCE OF GRANT DEED ~ The provisions of this Grant Deed are hereby approved and accepted. GRANTEE: CENTURY CROWELL COMMUNITIES, LP a California limited partnership By: Century Homes Communities, a California corporation General Partner Its: Date: By: John W. Pavelak Its; President ~ EXHIBIT C-4 R VPUBIKRANDOLPHI681716.15 P \Aaendas\A,cndI Anaclunentsv.,:rn1:s-Amend 2006\07.24-06 Cmllary Homes DOA - TS draft 7-13-06 doc .~ ATTACHMENT NO.1 TO GRANT DEED Legal Description of Property __00 EXHIBIT C-5 RVPUBIKRANDOLPH1681716,I5 P\Agelllia5\A~ Anactunents\AifnU-Amend 2006\07-24-06 Century Homes DOA - TS draft 7-13-06 doc ~ ~"".- PARCEL 1: That portion of the following described property lying North of the Northerly line of the property conveyed to the State of California by deed recorded December 6. 1957 in Book 4384, Page 553 of Official Records: That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino, as shown by Map on file in Book 2, Page(s) 32 of Maps, in the Office of the County Recorder of San Bernardino County, California, described as follows: Beginning at a point on the Northerly line of the Cajon State Highway which is South 400 46' East, 2B3 feet from the point of intersection of the West line of said Lot 11, with the said Southerly line: thence North 020 56' East, 304 feet to the true point of beginning: thence South 87' 14' East, 312.66 feet to the Easterly line of the property deeded to Clas P. Enckson and wife, recorded June 6, 1949 in Book 2413, Page 387, of Official Records of San Bernardino County; thence North 00 3B' East, 934 feet. more or less, to the Southerly line of the property deeded to the San Bernardino County Flood Control, as recorded in Book 1716, Page 156, of Official Records; thence along said line North 59041' 15" West. 589.90 feet to the West line of said Lot 11; thence along said West line South 02' 56' West, 826 feet, more or less. to a point 500 feet from the Northerly line of said CaJon State Highway; thence South 460 46' East, 283 Feet; thence South 020 56' West, 196 feet to the point of beginning. PARCEL 2: '- That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as per Map recorded in Book 2, Page 32 of Maps, Records of said County, described as follows: Beginning at an iron pipe on the Northerly right of way line of California State Highway, distant South 460 46' East, 697.40 feet from the intersection of said right of way line with the West line of said Block 11; and said point of intersection is located North 30 4' East, 2130.90 feet from the Southwest corner of said Block 11: thence South 460 46' East along said right of way line 100 feet to an iron pipe: thence North 30 4' East. 1146 feet to an iron pipe; thence North 46046' West. 100 feet to an iron pipe: thence parallel with the West line of said Block 11, South 30 4' West, 1146 feet to the point of beginning. Excepting therefrom that portion lying Southerly of the Northerly line of the property, as conveyed to the State of California. recorded June 6, 1957 in Book 4249, Page 130, of Official Records. PARCEL 3: All that portion of Lot 11. according to the Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map recorded In Book 2, Page 32 of Maps. Records of said County, lying within the following described property: That portion of Lots "J". "K", "L" and "M" according to Map showing a portion of Meyer and Barclay Subdivision. in the City of San Bernardmo, as per Map recorded In Book 12. Page 18 of Maps, in the Office of the County Recorder of said County and a portion of Lot 11, according to Map of Meyers and Barclay Subdivision of a portion of the Muscup,abe Rancho in said County, as per Map recorded In Book 2, Page 32 of Maps, In the Office of the County Recorder of said County, described as follows: 1-,"" -'-- "-' Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps, in the Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West 100 feet along the centerline of Cypress Avenue: thence North 620 23' 10" West, 344.47 feet to the beginning of a tangent curve concave Northeasterly and having a radius of 2,000 feet: thence. Northwesterly along the arc of said curve 1200 feet to the true point of beglnnmg. Said pOInt being on the Southwesterly line of Parcel No.3 as described in deed to San Bernardino County Flood Control District, recorded July 27. 194B in Book 2268, Page 146 of Official Records; thence from said true point of beginning continuing along said 2.000 foot radius curve 674.48 feet; thence North 080 29' 20" West, 262.26 feet to a point on the Northerly line of said Lot "M", said point being South 89' 44' 40" West, 297 .96 feet from the Northeast corner of said Lot "M"; and South B90 44' 40" West, 30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' AD" West, 420,00 feet: thence continuing North 27' 43' 00" West. 577.00 feet: thence North 370 00' West. 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet from the Northeast corner thereof: thence North 37' 00' West. 400 feet, more or less, to an angle point in the Southwesterly line of Parcel No.4 in deed to San Bernardino County Flood Control District recorded July 27, 1948 in Book 2268. Page 146 of Official Records: thence North 890 15' West, 196 feet to a point on the East line of Lot "L" distant Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof; thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11, a distance of 825 feet, more or less. to the Northeast corner of the land described in deed to Jerry Berman and Sons, recorded August 26, 1953 in Book 3231, Page 465, of Official Records: thence North 470 13' 46" West along the Northerly line of said Berman Land and the extension thereof 1330 feet to the Southwest corner of the land conveyed to San Bernardino County Flood Control District by deed recorded May 4, 1945 in Book 1766. Page 305 of Official Records; thence North 59' 41' 15" West. 277.89 feet, more or less, to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed recorded March 17,1958 in Book 4462. Page 73 of Official Records: thence South 20 38' West along the East line thereof of 380 feet, more or less, to the Northwest corner of the land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032, Page 25B of Official Records: thence South 46' 46' East, 100.00 feet to the Northeast corner of said Matthews Land; thence South 3' 04' West along the East line thereof 260 feet, more or less, to the Northerly line of the land conveyed to the State of California for freeway purposes; thence South 470 11' DO" East along the Northeasterly line of said State Land, 450 feet, more or less, to a point on the West line of the land conveyed to Lucile Whitman by deed recorded January 22,1932 in Book 784. Page 65 of Official Records: thence North 2' 40' 06" East, 155 feet, more or less, to the Northwest corner of said Whitman Land: thence South 47' 11' 35" East, 840 feet to the East line of said Lot 11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of said State of California Land; thence South 470 11' 00" East along said Northeasterly line 1965 feet. more or less. to a point on a line extending from the most Northerly corner of Lot 15 of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps, to the point of beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the point of beginning. Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book 197. Pages 22 through 25, inclusive, Records of said County. Also excepting therefrom from portions of said land 1/2 of all oil, gas and other hydrocarbons and minerals. now or at any time hereafter situated therern and thereunder or producible therefrom, together With the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances as reserved in the deeds recorded in Book 3038, Page 153; Book 3087. Page 9B: Book 35B5, Page 82; and in Book 4B06, Page 533. all of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other . hydrocarbons, now or at any time hereafter situated therern and thereunder or prodUCIble therefrom, together with the free and unlimited fight to mine. drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved in the deed from Wilma H. Weaver to Wilbur Ray James, a single man, recorded August 25. 1958 in Book -4586. Page 188 of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil. gas and other hydrocarbons, now or at any time hereafter situated therein and thereunder or producible therefrom, together with the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved to William Casady In deed recorded in Book 4012. Page 320 of Official Records. PARCEL 4, All that certain real property located in the City of San Bernardino. described as follows: ""'- A portion of Section 2, Township 1 North, Range 5 West. San Bernardino Meridian. unsurveyed as said Section line may be extended across Rancho Muscupiabe. as per Map recorded in Book 7, Page 23 of Maps, Records of said County, said parcel also being a portion of Block 11 of the Meyer and Barclay Subdivision. as per Map recorded in Book 2, Page 32 of Maps, Records of said County. more particularly described as follows: Beginning at a point on the Northerly line of the Cajon State Highway. said point being North 46' 50' West. 420 feet from the intersection of said Northerly line and the Easterly line of said block 11; thence along said Northerly line of said Cajon State Highway. North 46050' West, 420 feet to a point: thence along a line parallel to the Easterly line of said Block 11. North 20 38' East, 1037.14 feet to a point; thence along a line parallel to said Northerly line of said Cajon State Highway, South 460 50' East. 420 feet to a point: thence along a line parallel to the Easterly line of said Block 11, South 20 38' West. 1037.14 feet. more or less, to the point of beginning. Excepting therefrom that portion lying Southerly of the Northeasterly line of that land descnbed in the deed to the State of California, recorded August 2,1957 in Book 4294. Page 143 of Official Records of said County. PARCEL 5: All that certain real property located in the City of San Bernardino, described as follows: That portion of Block 11. Meyer and Barclay Subdivision. as per Map recorded in Book 2, Page 32 of Maps, Records of said County. described as follows: Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of the parcel conveyed to the State of California by deed recorded June 5, 1957. as Instrument No. 174. in Book 4247. Page 563. of Official Records of said County; thence North 20 40' 6" East. 155.1 B feet to the Northeasterly corner of the parcel of land conveyed to Harold S. Ladas by deed recorded August 12.1959 as Instrument No. 93, in Book 4901 Page 17 of Official Records of said County; thence North 460 50' 00" West. 420 feet. ';'ore or less, to the Northwesterly corner of said Ladas Land; thence South 20 40' 06" East, 155.08 feet along the West line of said Ladas Land to a pOint In the Northeasterly line of said parcel conveyed to the State of California; thence South 470 11' 00" West, 420.06 feet to the point of beginning. SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA SURVEY EXHIBIT D TO DISPOSITION AND DEVELOPMENT AGREEMENT Schedule of Performance [Attached Behind this Page] ~ EXHIBIT D RVPUBIKRANDOLPH1681716,15 P-lAgendas\Agenaa AIlal.:h~s\ApllU.Amcnd 2006\07.24.06Cenllll)' Homes DO.... - TS Graft 7.13-06,001; Schedule of Performance '.^",,-,, (Days shall be calendar days, and all dates herein are subject to change due to force majeure in accordance with Section 6.06 of the Agreement) ITHIS SCHEDULE OF PERFORMANCE SHALL BE COMPLETED IN A MUTUALLY ACCEPTABLE FORM BY THE PARTIES BY NO LATER THAN THE END OF THE DEVELOPER'S DUE DILIGENCE INVESTIGATIONS] reement Jul 2006 Upon approval of final map or sooner at the discretion of developer Jul 2007 - Febru 2008 October 2006 November 2006 - August 2007 '- Due Dili ence Submittal of construction documents, grading, public improvement and landsca in tans Obtain all environmental permits, obtain flood control permits, close escrow in flood control arcels Start of construction of Site adin Com letion of Site ad in Start of construction of Public Im rovements Com letion of Public Im rovements Start of construction of New Homes Completion of initial phase of im rovement of New Homes Com letion of all New Homes March 2007 - July 2007 Au ust 2007 December 2007 December 2007 A ril 2008 A ril 2008 October 2008 October 2010 EXHIBIT D-l RVPUBIKRANDOLPHI681716,15 P\Agenda.5\Aaenda AltathmtfllSv.,mu-Ammd2006\07.24-06 Cenl.W)' Homes DDA. 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I ,~ 1 ~.. ~ g~ ; :k~~~ ! !~ ..\ ". , I , , \.~~>"- '- EXHIBIT F TO DISPOSITION AND DEVELOPMENT AGREEMENT Cenificate of Completion [Attached Behind This Page] EXHIBIT F RVPUB\KRANDOLPHI681716.15 PlAllendaslAllend.a AlIll!;hmcmslAgmu.Amcnd 2006\07.24.Q6 Century HQmC$ DDA. TS dnll 7.13.06,tklc Recording Requested By And When Recorded Mail To: Century Crowell Communities, LP 1535 South "D" Street Suite 200 San Bernardino, California 92408 Exempl from Recording Fee per Government Code Section 27383 (Space above far Recorder's Use) CERTIFICATE OF COMPLETION I, the Executive Director 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 r 1, 2006, by and between the Agency and Century Crowell Communities, LP, a California limited '-....- partnership, (the "Developer") on the "Site" more fully described in Attachment No. I attached hereto and incorporated herein by this reference, 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 Site, excluding any minor "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 use and occupancy of the Site, whether or not said improvements are on the Site or on other property subject to the Agreement, all as described in the Agreement, and to otherwise comply with the Developer's obligations under the Agreement with respect to the Site, the Project, 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 in grant deed pursuant to which the Site was conveyed to the Developer 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 201 North "E" Street, Suite 30 I, San Bernardino, California, during regular business hours, Section 3. The Site to which this Certificate of Completion pertains is more fully described in Attachment No. I attached hereto. EXHIBIT F-I RVPUBIKRANDOLPHI681716,15 P\Agcndu\Ai~ Anadlments\Aarm:5-Amend 2006\07-2.4-06 CcrlIlIfY Homes DDA. TS draft '.13-06 dol; DATED AND ISSUED this _ day of .200_. Executive Director of the Redevelopment Agency of the City of San Bernardino '~ EXHIBIT F-2 RVPU8IKRANDOLPHI681716.15 PlAiendaslAlenda Auadunenu\AjmU-Amend 2006107.24.06 Cerw.u-y HOfIlCS DDA . TS dnIft 7.13-06 doc ATTACHMENT NO. I TO CERTIFICATE OF COMPLETION Legal Description of Site [Attached Behind This Page] '- EXHIBIT F-3 RVPUBIKRANDOLPH1681716,15 P'^ilCllGasl,Agenda AllacluncslUlAlP'TI"s-Amcnd. 2006107.24-06 Cent,,!)' Homes DDA . 15 draft '.13-06doc . . PARCEL 1: That portion of the following described property lying North of the Northerly line of the property conveyed to the State of California by deed recorded December 6, 1957 in Book 4384, Page 553 of Official Records: That portion of Lot 11 of Meyer's and Barclay Subdivision. in the City of San Bernardino, as shown by Map on file in Book 2, Page(s) 32 of Maps, in the Office of the County Recorder of San Bernardino County, California, described as follows: Beginning at a point on the Northerly line of the Cajon State Highway which is South 400 46' East, 283 feet from the point of intersection of the West line of said Lot 11, with the said Southerly line; thence North 02056' East. 304 feet to the true point of beginning: thence South 87" 14' East. 312.66 feet to the Easterly line of the property deeded to Clas P. Erickson and wife. recorded June 6,1949 in Book 2413. Page 3B7. of Official Records of San Bernardino County; thence North 00 38' East, 934 feet, more or less, to the Southerly line of the property deeded to the San Bernardino County Flood Control, as recorded in Book 1716. Page 156. of Official Records; thence along said line North 590 41' 15" West, 589.90 feet to the West line of said Lot 11; thence along said West line South 02' 56' West. 826 feet. more or less, to a point 500 feet from the Northerly line of said Cajon State Highway; thence South 460 46' East, 2B3 feet; thence South 020 56' West. 196 feet to the point of beginning. PARCEL 2: '-- That portion of Block 11 of Meyer Barclay Subdivision. in the City of San Bernardino, as per Map recorded in Book 2. Page 32 of Maps. Records of said County, described as follows: Beginning at an iron pipe on the Northerly right of way line of California State Highway, distant South 460 46' East, 697.40 feet from the intersection of said right of way line with the West line of said Block 11; and said point of intersection is located North 30 4' East, 2130.90 feet from the Southwest corner of said Block 11: thence South 460 46' East along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to an iron pipe; thence North 46046' West. 100 feet to an iron pipe: thence parallel with the West line of said Block 11. South 30 4' West. 1146 feet to the point of beginning. Excepting therefrom tha t portion lying Southerly of the Northerly line of the property. as conveyed to the State of California. recorded June 6. 1957 in Book 4249, Page 130, of Official Records. PARCEL 3: All that portion of Lot 1 1. according to the Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho, in the City of San Bernardino, as per Map recorded in Book 2, Page 32 of Maps. Records of said County, lying within the following described property: That portion of Lots" J", "K". "L" and "M" according to Map showing a portion of Meyer and Barclay Subdivision, in the City of San Bernardino. as per Map recorded in Book 12. Page 1 B of Maps. in the Office of the County Recorder of said County and a portIon of Lot 11, according to Map of Meyers and Barclay Subdivision of a portion of the Muscuplabe Rancho in said County, as per Map recorded in Book 2, Page 32 of Maps, In the Office of the County Recorder of said County. described as follows: '~",..-- "'- , Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as shown on the Map of the Town of Irvington recorded in Book 3. Page 9 of Maps, in the Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West 100 feet alon9 the centerline of Cypress Avenue: thence North 620 23' 10" West, 344.47 feet to the beginning of a tangent curve concave Northeasterly and having a radius of 2,000 feet; thence. Northwesterly along the arc of said curve 1200 feet to the true point of beginning. Said pOint being on the Southwesterly line of Parcel No, 3 as described in deed to San Bernardino County Flood Control District, recorded July 27. 194B in Book 2268. Page 146 of Official Records: thence from said true point of beginning continuing along said 2,000 foot radius curve 674.48 feet: thence North 080 29' 20" West. 262.26 feet to a point on the Northerly line of said Lot "M", said point being South B90 44' 40" West, 297.96 feet from the Northeast corner of said Lot "M": and South 890 44' 40" West, 30.00 feet from the Southeast corner of said Lot "J"; thence North 27" 43' 00" West, 420.00 feet; thence continuing North 27043' 00" West. 577.00 feet; thence North 37" AD' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet from the Northeast corner thereof; thence North 37' 00' West. 400 feet, more or less, to an angle point in the Southwesterly line of Parcel No, 4 in deed to San Bernardino County Flood Control District recorded July 27, 1948 in Book 2268. Page 146 of Official Records; thence North 89' 15' West, 196 feet to a point on the East line of Lot,"L" distant Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof; thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11, a distance of 825 feet, more or less, to the Northeast corner of the land described in deed to Jerry Berman and Sons, recorded August 26,1953 in Book 3231, Page 465, of Official Records: thence North 47" 13' 46" West along the Northerly line of said Berman Land and the extension thereof 1330 feet to the Southwest corner of the land conveyed to San Bernardino County Flood Control District by deed recorded May 4,1945 in Book 1766, Page 305 of Official Records; thence North 59' 41' 15" West, 277.89 feet, more or less, to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed recorded March 17, 1958 in Book 4462, Page 73 of Official Records; thence South 2038' West along the East line thereof of 380 feet, more or less, to the Northwest corner of the land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032, Page 258 of Official Records: thence South 46" 46' East, 100.00 feet to the Northeast corner of said Matthews Land; thence South 3' 04' West along the East line thereof 260 feet, more or less, to the Northerly line of the land conveyed to the State of California for freeway purposes; thence South 47" 11' 00" East along the Northeasterly line of said State Land, 450 feet, more or less, to a point on the West line of the land conveyed to Lucile Whitman by deed recorded January 22,1932 in Book 784. Page 65 of Official Records: thence North 2' 40' 06" East. 155 feet, more or less. to the Northwest corner of said Whitman Land; thence South 47' 11' 35" East, B40 feet to the East line of said Lot 11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of. said State of California Land: thence South 47' 11' 00" East along said Northeasterly line 1965 feet. more or less, to a point on a line extending from the most Northerly corner of Lot 15 of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps, to the point of beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the point of beginning. Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book 197. Pages 22 through 25, inclusive, Records of said County. Also excepting therefrom from portions of said land 1/2 of all oil, gas and other hydrocarbons and minerals, now or at any time here~f~er sl~uated therein .a~.d thereunder or prodUCible therefrom, together with the free and unlimited right to mine. orlll and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances as reserved In the deeds recorded in Book 3038, Page 153; Book 3087, Page 9B: Book 35B5, Page 82; and in Book 4806, Page 533, all of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other . hydrocarbons, noW or at any time hereafter situated therein and thereunder or prodUCible therefrom, together with the free and unlimited fight to mine. drill and bore beneath the surface of said land at any level or levels. 100 feet or more below the surface of said land for the purpose of development or removal of such substances; as reserved in the deed ,_ from Wilma H. Weaver to Wilbur Ray James, a single man, recorded August 25, 1958 in Book 4586, Page 1 B8 of Official Records, Also excepting therefrom from a portion of said land 1/2 of all oil. gas and other hydrocarbons, now or at any time hereafter situated therein and thereunder or producible therefrom, LOgether with the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved to William Casady In deed recorded in Book 4012, Page 320 of Official Records. PARCEL 4: All that certain real property located in the City of San Bernardino. described as follows: A portion of Section 2, Township 1 North. Range 5 West, San Bernardino Meridian. unsurveyed as said Section line may be extended across Rancho Muscupiabe. as per Map recorded in Book 7. Page 23 of Maps, Records of said County, said parcel also being a portion of Block 11 of the Meyer and Barclay Subdivision. as per Map recorded in Book 2. Page 32 of Maps, Records of said County. more particularly described as follows: Beginning at a point on the Northerly line of the Cajon State Highway. said point being North 46' 50' West, 420 feet from the intersection of said Northerly line and the Easterly line of said block 11; thence along said Northerly line of said Cajon State Highway. North 46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11, North 20 38' East, 1037.14 feet to a point; thence along a line parallel to said Northerly line of said Cajon State Highway. South 460 50' East. 420 feet to a point: thence along a line parallel to the Easterly line of said Block 11, South 20 38' West. 1037.14 feet. more or less, to the point of beginning. '-- Excepting therefrom that portion lying Southerly of the Northeasterly line of that land descIlbed in the deed to the State of California, recorded August 2, 1957 in Book 4294. Page 143 of Official Records of said County. PARCEL 5: All that certain real property located in the City of San Bernardino. described as follows: That portion of Block 11. Meyer and Barclay Subdivision, as per Map recorded in Book 2. Page 32 of Maps, Records of said County, described as follows: Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of the parcel conveyed to the State of California by deed recorded June 5: 1957, as . Instrument No. 17 4, in Book 4247. Page 563. of Official Records of saId County; thence North 2' 40' 6" East. 155.1 B feet to the Northeasterly corner of the parcel of land conveyed to Harold S. Ladas by deed recorded August 12. 1959 as Instrument No. 93, in Book 4901. Page 17 of Official Records of said County; thence North 46050' DO" Wes~ 420 feet. more or less, to the Northwesterly corner of said Ladas Land; thence South 2 40' 06" East, 155.08 feet along the West line of said Ladas Land to a point in the Northeasterly line of said parcel conveyed to the State of California; thence South 470 11' 00" West. 420.06 feet to the point of beginning. SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA SURVEY EXHIBIT G TO DISPOSITION AND DEVELOPMENT AGREEMENT Notice of Agreement IAttached Behind This Page] '",-......- EXHIBIT G RVPUBIKRANDOLPHI681716.15 P \AgendaslAsmda AUal:hmcnlJ\AJlTtts.Amend 1006\07.24-Ob Ccntlll)' H0me5 DOA . TS draft 7.1 3.{)(, doc Recording Requested by and ~ When Recorded Return to: The Redevelopment Agency of the City of San Bernardino 20 I North "E" Street, Suite 30 I San Bernardino, CA 92401 Exempt from Recording Fee per Government Code Section 27383 (Space above for Recorder's Use) NOTICE OF AGREEMENT The undersigned, the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic ("Agency"), and Century Crowell Communities, LP, a California limited partnership ("Developer") are parties to that certain DISPOSITION AND DEVELOPMENT AGREEMENT ("Agreement") dated as of r 1, 2006, for reference purposes only, by and between the Agency and Developer. Said Agreement contains obligations, covenants and restrictions affecting certain property ("Site") which is legally described on the attached Attaclunent No. I. The Agreement is a public record of the Agency and is available for inspection and copying at the Agency's offices located at 201 North "E" Street, Suite 301, San Bernardino, California. -, REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body, corporate and politic By: Maggie Pacheco, Executive Director A TIEST: Agency Secretary APPROVED AS TO LEGAL FORM: Agency Counsel EXHIBIT G-I RVPUBIKRANDOLPH1681716,15 P ~&cndas\AlIenda AlIa,;llITlCIllS\Agrml5-Amend 2006\07.24-06 Century Homes DDA - TS draft '-IJ.06doc _,..._c NOTARY ACKNOWLEDGMENT STATE OF CALIFORNIA } } ss. COUNTY OF SAN BERNARDINO} On before me, notary public, personally appeared u CJpersonally known to me OR proved to me on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person, or the entity(ies) upon behalf of which the person acted, executed the instrument. WITl';'ESS my hand and official seal. Signature of Notary Public ~-- EXHIBIT G-2 RVPUBIKRANDOLPHI681716,15 P IAlcndu\Agenda Anad1menlIIApnU-Amend 2006'.07-24-06 Cem.lU')' Homes DDA - TS dran 7-13-0600c: A IT ACHMENT NO. 1 TO NOTICE OF AGREEMENT Legal Description of Site ""- EXHIBIT G-3 RVPUBIKRANDOLPHI681716,15 P l.A.,clldas\Agenda Anachments\AgnnlS-AITIClId 2006VJ7.24-06 Ccnlllfy HCKneS DDA. T5 drali. 7-13-06 doc PARCEL 1: That portion of the following described property lying North of the Northerly line of the property conveyed to the State of California by deed recorded December 6, 1957 in Book 4384. Page 553 of Official Records: That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino, as shown by Map on file in Book 2. Page(s) 32 of Maps, in the Office of the County Recorder of San Bernardino County, California. described as follows: Beginning at a point on the Northerly line of the Cajon State Highway which is South 400 46' East. 283 feet from the point of intersection of the West line of said Lot 11. with the said Southerly line; thence North 020 56' East, 304 feet to the true point of beginning: thence South 87' 14' East, 312.66 feet to the Easterly line of the property deeded to Clas P. Erickson and wife. recorded June 6. 1949 in Book 2413, Page 387. of Official Records of San Bernardino County; thence North 00 3B' East, 934 feet, more or less. to the Southerly line of the property deeded to the San Bernardino County Flood Control. as recorded in Book 1716. Page 156. of Official Records; thence along said line North 590 41 ' 15" West, 589.90 feet to the West line of said Lot 11: thence along said West line South 02' 56' West, 826 feet, more or less. to a point 500 feet from the Northerly line of said Cajon State Highway; thence South 460 46' East, 283 feet; thence South 020 56' West, 196 feet to the point of beginning. ' PARCEL 2: - That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as per Map recorded in Book 2, Page 32 of Maps. Records of said County, described as follows: Beginning at an iron pipe on the Northerly right of way line of California State Highway. distant South 460 46' East, 697.40 feet from the intersection of said right of way line with the West line of said Block 11; and said point of intersection is located North 30 4' East, 2130.90 feet from the Southwest corner of said Block 11; thence South 460 46' East along said right of way line 100 feet to an iron pipe: thence North 304' East, 1146 feet to an iron pipe; thence North 460 46' West, 100 feet to an iron pipe: thence parallel with the West line of said Block 11. South 30 4' West, 1146 feet to the point of beginning. Excepting therefrom that portion lying Southerly of the Northerly line of the property. as conveyed to the State of California. recorded June 6. 1957 in Book 4249, Page 130, of Official Records. PARCEL 3: All that portion of Lot 11, according to the Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho. in the City of San Bernardino, as per Map recorded In Book 2, Page 32 of Maps. Records of said County. lying within the following described property: That portion of Lots "j", "K", "L" and "M" according to Map showing a portion of Meyer and Barclay Subdivision, in the City of San Bernardino, as per Map recorded In Book 12. Page 18 of Maps, in the Office of the County Recorder of said County and a portion of Lot 11, according to Map of Meyers and Barclay Subdivision of a portion of th~ Muscup,abe Rancho in said County, as per Map recorded In Book 2, Page 32 of Maps. In the Office of the County Recorder qf said County, described as follows: '- '- Commencing at the center line intersection of Irvington Avenue and Cypress Avenue. as shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps. in the Office of the County Recorder of San Bernardino County; thence South 270 36' 50" West 100 feet along the centerline of Cypress Avenue; thence North 620 23' 10" West. 344.47 feet to the beginning of a tangent curve concave Northeasterly and havin9 a radius of 2,000 feet; thence. Northwesterly along the arc of said curve 1200 feet to the true point of beginning. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed to San Bernardino County Flood Control District, recorded July 27. 194B in Book 2268, Page 146 of Official Records; thence from said true point of beginning continuing along said 2,000 foot radius curve 674.48 feet: thence North 08" 29' 20" West, 262.26 feet to a point on the Northerly line of said Lot "M", said point being South 89' 44' 40" West. 297.96 feet from the Northeast corner of said Lot "M"; and South 890 44' 40" West, 30.00 feet from the Southeast corner of said Lot "J": thence North 270 43' 00" West, 420.00 feet; thence continuing North 27' 43' 00" West, 577.00 feet; thence North 370 00' West. 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet from the Northeast corner thereof; thence North 37000' West, 400 feet, more or less, to an angle point in the Southwesterly line of Parcel No.4 in deed to San Bernardino County Flood Control District recorded July 27, 194B in Book 2268. Page 146 of Official Records: thence North 890 15' West, 196 feet to a point on the East line of Lot "L" distant Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof; thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11, a distance of B25 feet. more or less, to the Northeast corner of the land described in deed to Jerry Berman and Sons. recorded August 26,1953 in Book 3231. Page 465. of Official Records; thence North 470 13' 46" West along the Northerly line of said Berman Land and the extension thereof 1 3 30 feet to the Southwest corner of the land conveyed to San Bernardino County Flood Control District by deed recorded May 4. 1945 in Book 1766. Page 305 of Official Records; thence North 59' 41' 15" West. 277.89 feet. more or less, to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed recorded March 17, 1958 in Book 4462. Page 73 of Official Records: thence South 2038' West along the East line thereof of 380 feet, more or less. to the Northwest corner of the land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032, Page 258 of Official Records: thence South 460 46' East. 100.00 feet to the Northeast corner of said Matthews Land; thence South 30 04' West along the East line thereof 260 feet. more or less. to the Northerly line of the land conveyed to the State of California for freeway purposes; thence South 470 11' 00" East along the Northeasterly line of said State Land, 450 feet, more or less, to a point on the West line of the land conveyed to Lucile Whitman by deed recorded January 22, 1932 in Book 7B4, Page 65 of Official Records' thence North 2' 40' 06" East, 155 feet. more or less, to the Northwest corner of said Whitman Land; thence South 470 11' 35" East, B40 feet to the East line of said Lot 11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of said State of California Land; thence South 470 11' 00" East along said Northeasterly line 1965 feet. more or less, to a point on a line extending from the most Northerly corner of Lot 15 of Tract No. 3401, as per Map recorded in Book 46, Page 94 of Maps. to the point of beginning. thence Northeasterly along said line a distance of 595 feet. more or less, to the point of beginning. Excepting therefrom any portion lying within Tract No. 12756 as per Map recorded in Book 197, Pages 22 through 25, inclusive, Records of said County. Also excepting therefrom from portions of said land 1/2 of all oil, gas and other hydrocarbons and minerals. now or at any time hereafter SItuated therein and thereunder or producible therefrom, together with the free and unlimited right to mine. drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances as reserved In the deeds recorded in Book 303B, Page 153; Book 3087, Page 98; Book 3585, Page B2; and in Book 4806. Page 533. all of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other . hydrocarbons, noW or at any time hereafter situated therein and thereunder or prodUCible therefrom, together with the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved in the deed ,,~ from Wilma H. Weaver to Wilbur Ray James, a single man. recorded August 25, 195B in Book -4586, Page 1 BB of Official Records, Also ~xcepting therefrom from a portion of said land 1/2 of all oil. gas and other hydrocarbons, now or at any time hereafter situated therein and thereunder or producible therefrom. together with the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved to William Casady In deed recorded in Book 4012. Page 320 of Official Records. PARCEL 4: All that certain real property located in the City of San Bernardino, described as follows: ~- A portion of Section 2. Township 1 North. Range 5 West. San Bernardino Meridian. unsurveyed as said Section line may be extended across Rancho Muscupiabe. as per Map recorded in Book 7, Page 23 of Maps, Records of said County, said parcel also being a portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2, Page 32 of Maps, Records of said County, more particularly described as follows: Beginning at a point on the Northerly line of the Cajon State Highway. said point being North 460 50' West, 420 feet from the intersection of said Northerly line and the Easterly line of said block 11: thence along said Northerly line of said Cajon State Highway. North 46050' West, 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11, North 20 3B' East, 1037.14 feet to a point; thence along a line parallel to said Northerly line of said Cajon State Highway, South 460 50' East, 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11, South 20 38' West, 1037.14 feet. more or less. to the point of beginning. Excepting therefrom that portion lying Southerly of the Northeasterly line of that land described in the deed to the State of California. recorded August 2, 1957 in Book 4294, Page 143 of Official Records of said County. PARCEL 5: All that certain real property located in the City of San Bernardino. described as follows: That portion of Block 11 , Meyer and Barclay Subdivision, as per Map recorded in Book 2. Page 32 of Maps, Records of said County. described as follows: Beginning at the intersection of the East line of said Block 11 with the 'Northeasterly line of the parcel conveyed to the State of California by deed recorded June 5, 1957. as Instrument No. 174, in Book 4247. Page 563, of Official Records of said County; thence North 20 40' 6" East, 155.18 feet to the Northeasterly corner of the parcel of land conveyed to Harold S. Ladas by deed recorded August 12.,1959 as Instrument No. 93. in Book 4901. Page 17 of Official Records of said County; thence North 460 50' DO" Wes~ 420 feet. more or less. to the Northwesterly corner of said Ladas Land; thence South 2 40' 06" East, 155.08 feet along the West line of said Ladas Land to a point in the Northeasterly line of said parcel conveyed to the State of California; thence South 470 11' DO" West, 420.06 feet to the point of beginnin9. SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA SURVEY ',~- -... EXHIBIT H TO DISPOSITION AND DEVELOPMENT AGREEMENT Form of Temporary License for the Grading and Improvement of Land IAttached Behind This Page] EXHIBIT H RVPUBIKRANDOLPH\681 7] 6,15 P 'Ajcndas\A&enda AU;lChmenlS\AiJ'IllIs.Amcnd 200tIl07.24.Ob Century Homes DDA - TS Grati 7.1).06doc '-- TEMPORARY LICENSE AGREEl\1ENT FOR THE GRADING AND IMPROVEMENT OF LAND This TEMPORARY LICENSE AGREEMENT FOR THE GRADING AND IMPROVEMENT OF LAND (this "License Agreement") is dated as of ,200_, between Century Crowell Communities, LP, a California limited partnership ("Licensee"), and the REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic (the "Agency"), and is entered into with respect to the facts set forth in the Recitals below. RECITALS I. This License Agreement affects the lands owned by the Agency, which is hereinafter described as the "Grading Site." The Grading Site is subject to disposition by the Agency to Licensee in accordance with the terms of an agreement dated as of r 1, 2006, entitled "Disposition and Development Agreement," by and between the Agency and the Licensee. A vicinity map marked to show the Grading Site in relation to other abutting lands is attached to this License Agreement as Attaclunent No.2. 2. The Grading Site is described in the attached Attaclunent No. I. IN CONSIDERATION OF THE MUTUAL PROMISES OF THE PARTIES SET '- FORTH IN THIS LICENSE AGREEMENT AND OTHER GOOD AND VALUABLE CONSIDERATION, THE RECEIPT AND SUFFICIENCY OF WHICH IS HEREBY ACKNOWLEDGED, LICENSEE AND THE AGENCY HEREBY AGREE AS FOLLOWS: Section 1. Definitions. In addition to the definitions of certain words set forth in the Recitals or elsewhere in this License Agreement, the following words or phrases shall have the meanings set forth below: . Contractor. The term "Contractor" refers to any person or entity that Licensee retains as general contractor to conduct the work (hereinafter defined) on the Grading Site, but shall not refer to subcontractors of Contractor. . EnvIronmental Laws. The term "Environmental Laws" means all applicable federal. state and local laws, statutes, ordinances, rules, regulations, order and judgments relating to the protection or clean-up of the environment, the use, treatment, storage, transportation, generation, manufacture, processing, distribution, handling or disposal of, or emission, discharge or other release or threatened release of Hazardous Substances, the preservation or protection of waterways, groundwater, drinking water, air, wildlife, plants or other natural resources, the health and safety of persons or property, or the protection of the health and safety of EXHIBIT H-2 RVPUBIKRANDOLPH168171615 P-\AgcrKlas\Aj:Clnda AuachmeDlslAgrm.$-Arnend 2006,0..24.06 Cem",)' Homes DDA . 15 dnroft 7.13-06 doc - employees, as the same may be amended, modified or supplemented from time to lime, including, without limitation: the Clean Air Act, as amended, 42 U,S.c. Section 7401 et seq.; the Federal Water Pollution Control Act, as amended, 33 U.S.c. Section 1251 et seq.; the Resource Conservation and Recover Act of 1976, as amended, 42 U.S.c. Section 6901 et seq.; the Comprehensive Environment Response, Compensation and Liability Act of 1980, as amended (including the Superfund Amendments and Reauthorization Act of 1986, "CERCLA"), 42 U.S.C. Section 9601 et seq.; the Toxic Substances Control Act, as amended, IS U.S.c. Section 2601 et seq.; the Occupational Safety and Health Act, as amended, 29 U.S.c. Section 651, the Emergency Planning and Community Right-to-Know Act of 1986,42 U.S.c. Section 11001 et seq.; the Safe Drinking Water Act, as amended, 42 U.S.C. Section 300f et seq.; the California Health and Safety Code (9 25100 et seq.; 9 25249.5 et seq.; 9 39000 et seq.); all comparable state and local laws, laws of other jurisdictions or orders and regulations; and any and all common law requirements, rules and bases of liability regulating, relating to or imposing liability or standards of conduct concerning pollution or protection of human health or the environment, as now or may at any time hereafter be in effect. . Hazardous Substances. The tenn "Hazardous Substances" means any pollutant, contaminant, waste and any toxic, carcinogenic, reactive, corrosive, ignitable, flammable or infectious chemical, chemical compound or substance or otherwise hazardous wastes, toxic or contaminated substances or similar materials, including, without limitation, any quantity of asbestos, urea fonnaldehyde, PCBs, radon gas, crude oil or any fraction thereof, all fonns of natural gas, petroleum products, by-products or derivatives, radioactive substances, methane, hydrogen sulfide or materials, pesticides, waste waters, or sludges, any of the above of which are subject to regulation, control or remediation under any Environmental Laws (as defined below). . Work. The tenn "Work" means and refers to the grading of dirt on the Grading Site pursuant to the work plan attached hereto as Attachment No. 3. The Work includes the right to water, grade and fence the Grading Site. The Work shall not include the construction or installation of any improvements on the Grading Site other than fences and temporary utilities without the prior written approval of the Agency. Section 2, Effective Date of License Agreement. This License Agreement shall take effect (the "Effective Date") on the date of the last of the following to occur: (I) this License Agreement is approved and executed by the Executive Director of the Agency; (2) this License Agreement is executed by the authorized representatives of the Licensee; and (3) the Licensee has delivered to the Executive Director the evidence of insurance as required under Section 12(a) and the completion and payment bonds to the Agency as set forth in Section 12(c). EXHIBIT H-3 RVPU8\KRANDOLPHI681716,15 P\Aienda~i\Aaenda Auachmmts\Ajm1Is.Amen<i 2006\07.24-06 CmlW)' Homes DDA. TS draft '.I3..Q6 doc Section 3. {Reserved] '""",,/ Section 4. Covenants and A>U'eements. (a) Licensee covenants and agrees that in the performance of the Work, it and all of its employees, contractors and subcontractors will comply with all applicable Environmental Laws relating to the presence of Hazardous Substances on the Grading Site. (b) Licensee, at its expense, will obtain all governmental approvals required for the performance of the Work and will perform the Work substantially in compliance with the grading plans ("Grading Plans") submitted to and approved by the City of San Bernardino. (c) Licensee covenants and agrees that in performing the Work on the Grading Site it will use reasonable efforts not to unreasonably interfere with the access of adjacent landowners or their tenants to their property or the operations of adjacent landowners or tenants upon such property. (d) Licensee shall be responsible for the payment of any possessory interest or ad valorem taxes that may be imposed on the interest of Licensee under this License Agreement. (e) Licensee shall comply with all applicable air quality and other laws and regulations, as such may now exist or later be enacted or adopted, in the performance of the Work, including, without limitation, all applicable regulations regarding fugitive dust and weed '-' abatement. Section 5. Indemnitv. Licensee hereby agrees, at its sole cost and expense, to indemnify, protect, hold harmless and defend the Agency, with counsel selected and approved by the Agency, from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, fees, disbursements and costs of attorneys, environmental consultants and experts of any nature whatsoever (collectively, "Losses") that may, at the time, be imposed upon, incurred or suffered by, or asserted or awarded against, the Agency directly or indirectly relating to the Work from: (a) The failure of Licensee or Contractor or their agents to perform the Work in accordance with Environmental Laws and perform the Work substantially in accordance with the approved Grading Plans; (b) The failure of Licensee or Contractor or their agents to complete, obtain, submit and/or file any and all notices, permits, licenses and authorizations required by Environmental Laws and the ordinances and regulations of the City of San Bernardino in connection with the Work; (c) Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with the violation of any environmental laws or EXHIBIT H-4 RVPUB\KRANDOLPHI681716,15 P \Agcooaf.Aj;el\l:ia AnacllmcnulAgrlTu-Amcnd 2006\07-24-06 CCI1IlIry Homes DOA - TS draft 1-13.06doc the ordinances and regulations of the City of San Bernardino by Licensee or Contractor or their "_ agents resulting from their failure to perform the Work in accordance with such Environmental Laws and the approved Grading Plans; and (d) Any claim or injury or death to persons or loss or damage to property at or adjacent to the Grading Site accruing or arising from the activities of Licensee on the Grading Site during the period that Licensee is performing Work at the Grading Site resulting from the actions of Licensee while upon the Grading Site. All obligations of Licensee under the indemnity given in this section of this License Agreement are payable immediately upon a determination by the appropriate authorities that such obligations are due. Any amount due and payable hereunder to the Agency by Licensee that is not paid within thirty (30) days after it is due, will be interest from the date it is due at the rate of ten percent (10%) per annum. In no event shall Licensee be obligated to indemnify the Agency for any Losses in the nature of speculative, consequential or punitive damages in connection with or arising from this License Agreement or the transactions contemplated herein or obligated to indemnify the Agency for any Losses associated with or in the nature of "generator" liability. The indemnity given by Licensee in this section or this License Agreement will survive termination of this License Agreement. Notwithstanding any other condition of this License Agreement to the contrary, Licensee does not assume any liability obligations with respect to Losses: (i) associated with the cost of remediation of Hazardous Substances that are discovered during the Work, except in connection __ with the negligence of Licensee or the Contractor or any of them in handling such Hazardous Substances; or (ii) caused by the negligence or willful misconduct of the Agency or its agents or employees. Section 6. License to Enter Grading Site. (a) Subject to the terms and conditions of this License Agreement, as of the Effective Date, the Agency hereby permits, authorizes and licenses Licensee, Contractor and their contractors and their agents and subcontractors to enter the Grading Site for the sole purpose of performing the Work in accordance with the terms of this License Agreement. Obtaining access to the Grading Site shall be the sole responsibility of Licensee and Contractor. (b) The Agency Executive Director shall have the right to order the suspension of the Work by written notice to Licensee (the "Notice of Suspension") in the event that the Agency Executive Director reasonably determines that Licensee has failed to substantially comply with its material obligations under this License Agreement. The Notice of Suspension shall set forth: (i) the specific reason for suspension; and (ii) permit Licensee not less than five (5) business days to cure such failure prior to the effective date of the suspension; (iii) indicate the number of days during which the suspension is to be in effect; and (iv) indicate measures which Licensee shall implement in order to correct or lin the suspension. Nothing in this subsection shall be deemed to limit the right of the Agency to terminate this License Agreement in accordance with its rights under Section 16 below. EXHIBIT H-5 RVPUBIKRANDOLPHI681716.15 P-\A&endas\Allclllla AnadllTlcnulApms-Ammd 2006\07.24-06 CCIlllll'"y HOme5 DDA. TS draft 7.13-00 dol; (c) LICENSEE ACCEPTS THE GRADING SITE IN ITS "AS IS" CONDITION, WITH ALL FAULTS. LICENSEE ACKNOWLEDGES THAT THE AGENCY MAKES AND HAS MADE NO WARRANTIES OR REPRESENTATIONS REGARDING THE CONDITION OF THE GRADING SITE OR THE ABSENCE OF HAZARDOUS SUBSTANCES THEREON. THE AGENCY SHALL HAVE NO RESPONSIBILITY FOR DAMAGE TO OR LOSS BY THEFT OF PROPERTY OF LICENSEE ON THE GRADING SITE. (d) Licensee shall perform the Work in an efficient and workmanlike manner. Any and all items or materials brought onto the Grading Site by Licensee pursuant to this License Agreement, including without limitation, any and all equipment and improvements, shall, as between Licensee and the Agency, be and remain the personal property of Licensee. Section 7. Unpermitted Events. Licensee shall not cause or permit any Hazardous Substance to be stored, released or discharged on, in, under or about the Grading Site in connection with the Work in any manner as to violate any Environmental Laws, or in any manner as to require remediation or removal thereof under any Environmental Laws, including, without limitation, leaks and discharges from trucks, equipment and operations on the Grading Site. Solely for purposes of this section, the storage, use, release or discharge of waste which violates the preceding sentence shall be referred to as an "Unpermitted Event." If Licensee discovers an Unpermitted Event, then Licensee shall immediately remedy, repair and remediate any damage or harm caused by such Unpermitted Event, and shall notify the Agency of such Unpermitted Event as soon as possible, but in all cases within seven (7) calendar days of the discovery by Licensee of such Unpermitted Event. Section 8. Restoration of Grading Site. Except as provided in Section 9(c) below, by the date of the termination of this License Agreement pursuant to Section 9(a) or (b) below, Licensee at its sole cost and expense shall have removed all equipment, improvements and debris brought onto or added to the Grading Site by Licensee or its contractors. In addition, if grading work is commenced prior to termination of this License Agreement, Licensee shall be obligated to complete the work described in the Grading Plans at its sole cost and expense. All such work shall be completed by Licensee in a good and workmanlike manner with reasonable diligence and in compliance with all applicable Environmental Laws. Section 9. Termination. This License Agreement shall terminate upon the earliest to occur of the following: (a) Written notice by Licensee to the Agency terminating this License Agreement; (b) Written notice by the Agency to Licensee in accordance with its rights under Section 16 below (in which event, the obligations under Section 8 above shall be performed and completed within thirty (30) days after the termination date); and (c) Upon Licensee's acquisition of title to the Grading Site. EXHIBIT H-6 RVPUBIKRANDOLPHI681716,15 P IAlI:C'l1daslAgenda Anac:hmc:nlSlAlP'n'Is-Amend 2006\07-24-06 Ccmury Homes DDA. TS draft 7.1)-06 dot . Section 10. Survival of Provisions. Notwithstanding the expiration of the license granted by this License Agreement, the parties' rights and obligations pursuant to Sections 5, 7, 8, 14, 15,21 and 24 of this License Agreement shall survive, the termination of this License Agreement and remain in full force and effect. Section 11. Access to the Grading Site During Term of License. Subject to the Agency's compliance with all safety requirements. Licensee, on reasonable advance written notice from the Agency, shall allow the Agency access to the Grading Site for inspection of the Work to assure substantial compliance with the Grading Plan, and for reasonable testing for the presence of Hazardous Substances and reasonable monitoring of compliance by Licensee with Environmental Laws during the performance of the Work. The Agency shall conduct such inspection, monitoring and testing in a manner that minimizes interference with the Work. Section 12. Insurance. (a) Licensee or Contractor shall maintain or cause their contractors to maintain appropriate insurance coverage for all Work conducted pursuant to this License Agreement and will cause the Agency to be named as an additional named insured under all such policies. Prior to entering onto the Grading Site and commencement of any of the part of the Work, Licensee or Contractor shall submit and/or cause to be submitted to the Agency reasonably acceptable evidence of the following insurance coverage on behalf of Licensee or Contractor or their contractors: (i) all statutorily required workers compensation coverage; (ii) comprehensive or commercial general liability (bodily injury and property damage) coverage, "'_ including the following supplementary coverages: (a) contractual liability to cover liability assumed under this License Agreement; (b) product and completed operations liability insurance; (c) broad form property damage liability insurance of not less than $1,000,000, combined single limit per occurrence and naming the Agency as an additional insured; and (iii) automobile bodily injury and property damage liability insurance with limits of liability of such insurance not less than $250,000 per person/$500,OOO per occurrence for bodily injury and $100,000 per occurrence for property damage, covering owned, non-owned and hired vehicles used in the performance of the Work and naming the Agency as an additional insured. Licensee or Contractors' insurance, as the case may be, shall be primary coverage and the Agency's insurance/self-insurance shall not be contributory. (b) The above insurance shall include a requirement that the insurer provide the Agency within thirty (30) days' written notice prior to the effective date of any cancellation or material change of the insurance. The workers' compensation insurance specified above shall contain a waiver of subrogation against the Agency and an assignment of statutory lien, if applicable. The comprehensive general liability and automobile insurance specified above shall name the Agency as an additional insured with respect to operations performed under this License Agreement. Any physical damage insurance carried by Licensee contractors on construction equipment, tools, temporary structures and supplies owned or used by said contractors shall provide a waiver of subrogation against the Agency. EXHIBIT H-7 RVPUBIKRANDOLPHI681716.15 P\Allcndas\Allcnda AttKhmmla\AIfTTU-AlTll:'nd 2006\07.24-06 CClUIIf)' Homes DO" - TS draft 7.13.06 doc . (c) Licensee shall deliver to the Agency surety bonds issued by a California admitted surety company whose surety instruments are rated in "Bests Insurance Guide," a current edition, at a rating level acceptable to the City Department of Development Services which names the City and the Agency as the beneficiaries for the completion of the Work and the payment of all materials, labor and workers' compensation insurance claims in a principal sum of not less than one hundred twenty-five percent (125%) of the estimated cost of the Work, as confinned by the City Engineer. Section 13. Notice to the Parties. For the purpose of this License Agreement, communications and notices among the parties shall be in writing and shall be deemed to have been given when actually delivered, if given by hand delivery or transmitted by overnight courier service, or if mailed, when deposited in the United States Mail, First Class, postage prepaid, return receipt requested and delivered to or addressed as follows: To the Agency: Redevelopment Agency of the City of San Bernardino 201 North "E" Street, Suite 301 San Bernardino, California 92401 Attn: Maggie Pacheco, Executive Director Phone: 909) 663-1044 Fax: (909) 888-9413 '-' To the Licensee: Century Crowell Communities, LP 1535 South "D" Street, Suite 200 San Bernardino, California 92408 Atto: John W. Pavelak Attn: George Mooradian Phone: (909) 351-6007 Fax: (909) 381-0041 '~"~' Section 14. All Costs Associated with Work Shall be Paid bv Licensee. As between Licensee and the Agency, all costs incurred in connection with perfonnance of any item of the Work shall be the sole responsibility of and be paid by Licensee, with no right of reimbursement from Agency under the agreement referenced in the Recitals of this License Agreement or under any circumstances. If any claim or lien is recorded or asserted against the Grading Site, or any interest therein, or the Agency for materials supplied or labor or professional services perfonned directly or indirectly for Licensee or Contractor relating to the Work, Licensee shall satisfy and discharge such lien, at the sole cost and expense of Licensee, within thirty (30) calendar days of notice to Licensee of the existence or assertion of such claim or lien. If Licensee disputes the claim or lien and, therefore, elects not to satisfy and discharge the claim or lien, as required in the preceding sentence, then Licensee shall, within thirty (30) calendar days of notice to Licensee of the existence or assertion of such claim or lien, either: (i) file with the Agency a payment bond issued by a California admitted surety that runs to the benefit of the Agency in the amount of one hundred twenty-five percent (125%) of the aggregate amount of the claim or lien stated by the party asserting such claim or lien, conditioned for the payment of any sum that the claimant or lien or may recover on the claim or lien, together with any costs of suit incurred in enforcing such claim or lien; or (ii) post with the Agency cash collateral or other security reasonably acceptable to the Agency for payment of such claim or lien. EXHIBIT H-8 RVPUBIKRANDOLPH1681716,15 P\Almdas\A&~ Atachmmts\Agmvs-Ammd 2006\07.24-06 Cmlury Homes DDA. TS dnft 7.13-06 doc . Section 15. Conflicts/Disputes. If a conflict arises between applicable regulations relating to the Work, the most stringent regulatory requirement shall control. In the event there is a disagreement in connection with the interpretation of the requirements of any regulations, then the Agency and Licensee will promptly endeavor in good faith to resolve such disagreement. If no resolution can be reached within three (3) days of such disagreement, then the interpretation of the Agency (exercised in good faith consistent with a reasonable interpretation of industry standards) shall apply. Except for the matters to be addressed as set forth above, if a dispute arises between the parties to this License Agreement, the parties hereto agree to use the following procedure to resolve such dispute, prior to pursuing other legal remedies: (a) A meeting shall be held promptly between the parties that will be attended by individuals with decision-making authority, who will attempt in good faith to negotiate a resolution of the dispute. (b) If the parties are unsuccessful in resolving the dispute under (a) above, they may; 1. agree to submit the matter to mediation or binding arbitration or a private adjudicator (if all parties so agree); or 2. mltJate litigation upon forty-five (45) days' advanced written notice to the other parties. (c) If any party should bring an action against the other(s) to enforce the terms of this License Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs, as determined by a court of competent jurisdiction in said proceeding, Section 16. Default. If a party fails to fulfill any material obligation of this License Agreement, the other party may give written notice to that party of such failure, and in the event that party fails to remedy such failure within thirty (30) calendar days of receipt of such notice, the notifying party may terminate this License Agreement by a second written notice and/or pursue whatever other legal or equitable remedies are available. Section 17. Governing Law. The parties hereto acknowledge that this License Agreement has been negotiated and entered into in California. 'The parties hereto expressly agree that this License Agreement shall be governed by, interpreted under, and construed and enforced in accordance with the laws of the State of California and if controlling, by the laws of the United States. Further, the parties to this License Agreement hereby agree that any legal actions arising from this License Agreement shall be filed in California Superior Court, in the Court of San Bernardino, Central District or the appropriate federal court in such district. Section 18. Partial Invaliditv. If any term or provision or portion of this License Agreement or the application thereof to any person or circumstance shall, to any extent, be EXHIBIT H-9 RVPUBIKRANDOLPHI681716,I5 P \"'gendaslAgenda ....n..elllnc:lI1slAillTU....,rrw;nd 2006107-2.-06 Cenllll)' Homes DO"" - TS dnali 7.13-06 dlx invalid or unenforceable, the remainder of this License Agreement, or the application of such term or provision or portion thereof to persons or circumstances other than whose as to which it is held invalid or unenforceable, shall not be affected thereby, and each such term and provision of this License Agreement shall be valid and enforced to the fullest extent permitted by law. Section 19. No Intent to Create Third Partv Beneficiaries. The parties intend that the rights and obligations under this License Agreement shall benefit and burden only the parties hereto, and do not intend to create any rights in, or right of action to or for the use or benefit of any third party including any governmental agency, who is not one of the parties to this License Agreement. Section 20. Waivers. No waiver of any breach of any covenant or provision herein contained shall be deemed a waiver of any preceding or succeeding breach thereof, or of any other covenant or provision herein contained. No extension of the time for performance of any obligations or act to be performed herein shall be deemed to be an extension of the time for performance of any other obligation or act to be performed under this License Agreement. Section 21. Professional Fees. If any action or suit by a party hereto is brought against another party hereunder by reason of any breach of any of the covenants, agreements or provisions on the part of the other party arising out of this License Agreement, the prevailing party shall be entitled to have and recover of and from the other party all costs and expenses of the action or suit, any appeals therefrom, and enforcement of any judgment in connection therewith, including reasonable attorneys' fees, accounting and engineering fees, and any other '-" professional fees resulting therefrom. For the purposes of this Section 21, the words "reasonable attorneys' fees" in the case of the Agency shall mean and include the salaries and benefits of the lawyers employed in the Office of the City Attorney, computed on an hourly basis, who may provide legal services to the Agency in connection with the enforcement of any provisions of the Agreement. Section 22. Entire Agreement. This License Agreement (including all Exhibits attached hereto) is the final expressions of, and contains the entire agreement between, the parties with respect to the subject matter hereof and supersedes all prior understandings with respect thereto. This License Agreement may not be modified, changed, supplemented or terminated, nor may any obligations hereunder be waived, except by written instrument signed by the party to be charged or by its agent duly authorized in writing, The parties do not intend to confer any benefit hereunder on any person, firm or corporation other than the parties hereto. Section 23. Construction. Headings at the beginning of each paragraph and subparagraph are solely for the convenience of the parties and are not a part of this License Agreement. Whenever required by the context of this License Agreement, the singular shall include the plural and the masculine shall include the feminine and vice versa. This License Agreement shall not be construed as if it had been prepared by one of the parties, but rather as if all parties had prepared the same. Unless otherwise indicated, all references to sections are to this License Agreement. All exhibits referred to in this License Agreement are attached hereto and incorporated herein by this reference. If the date on which any action is required to be """..- EXHIBIT H-10 RVPUBIKRANDOLPHI68171615 P IAgo:ndas.Ago:nda AnachmenlslAgnnls-Amc:nd 2006107.24.06 Century Homes DDA. TS draft 7.13-06Wc performed under the terms of this License Agreement is not a business day, the action shall be taken on the next succeeding business day. Section 24. No Admission. This License Agreement shall not constitute, and no action taken pursuant to this License Agreement shall constitute, any admission of fact, liability, causation, responsibility or fault, or proportionate share thereof, by any person with respect to the matters referred to herein, including, without limitation, the presence of any hazardous substances or other substances or chemicals in the soil or groundwater anywhere in, on, under, at or about the Grading Site. This License Agreement shall not be offered into evidence or used by any party in any administrative, judicial or alternative dispute resolution proceeding for any purpose, except an action to enforce the terms of or for damages for breach of this License Agreement. Section 25. Counterparts. This License Agreement may be executed in one or more counterparts, each of which shall be an original, and all of which together shall constitute a single instrument. This License Agreement may be executed by facsimile signatures, and each facsimile counterpart, when taken together, shall be deemed an original. IN WITNESS WHEREOF, Century and the Agency hereby execute this License Agreement by the signatures of their authorized representatives, as follows: "LICENSEE" -- CENTURY CROWELL COMMUNITIES, LP a California limited partnership By: Century Homes Communities a California corporation General Partner Its: Date: By: John W. Pavelak Its: President "AGENCY" REDEVELOPMENT AGENCY OF THE CITY OF SAN BEIU'iARDINO, a public body, corporate and politic Date: By: Maggie Pacheco, Executive Director EXHIBIT H-ll R VPUBIKRANDOLPHI681716.15 PlAsenda$lAsenda AhChrne-nu\Aimu-Amend :!OO6\O7-24-06 Century Homes DCA. TS dr.roti 7.lJ-06doe ._'.....J '-~, ATTACHMENT NO.1 TO TEMPORARY LICENSE AGREEMENT FOR THE GRADING AND IMPROVEMENT OF LAND Legal Description of the Grading Site EXHIBIT H-12 RVPUB\KRANDOLPH\681716.15 p \Agcndas\Aacnda At~ntsv.,rmts.AmcrKl 2000\07.24-0C> CCI\lI,11) Homes DDA - TS dnlIi 7-13-06 doc --- San Bernardino Flood Control District Parcels Legal Description Parcel A: A portion of Lot II of the Re-subdivision of Meyers and Barclay Subdivision, in the City uf San Bemardino, as sllOwn by Map on file in Book 12, Page 18 of Maps, in the Office of thc County Recorder uf San Bernardino County, Califomia, described as follows: Commencing "1 the southwest comer of the land conveyed to San Bernardino Flood Control District, per document recorded in Book 1766, Pagc 305 of Official Records, lhcncc South 47 degrees 13 minutes 46 seconds East, along the southwesterly line of the land described in document recorded in Book 1716, Page 156 of Official Records, a distancc of 1328,09 feet, to the most southerly corner of said parcel of land described in document recorded in said Book 1716. Page 156 of Official Records, said point also being the True Point of Beginning, and located on the East line of said Lot 11; thence North 02 degrees 40 minutes 02 seconds East, along said East line of Lot II, a distance 01'826.47 feet; thence South 42 degrees 46 minutes 14 seconds West a distance of 632.15 feet, to a point on said southwesterly line of the land described in document recorded in Book 1716, '- Pagc 156 of Official Records; thence Soulh 47 dq,'Tees 13 minutes 46 seconds East, along said southwesterly line, a distance of 532_39 feet, to the True Point of Beginning. Mich"el L Anderson. PLS 6916 -- --..- ------------ Page lof2 "'''''''--- San Bernardino Flood Control District Parcels Legal Description P:I,'ccl13: That portion of Lots "J" , "K", "I", and "M" according to map showing a pOltion of Mcyer and Barclay Subdivision, in the City of San Bernardino. as shown by map record cd in Book 12. Page 18 of Maps, in the Office of the County Recorder of San llcrnardino County, California, and a portion of Block 82 and 83 in Irvington Land and Water Company's Subdivision of part of Museupiabe Rancho as per map filed in Book I, Page 32 of Records of Survey, in the Oftice of the County Recorder of San Bernardino County. Cali fomia, also togethcr with that portion of Irvington Avenue as vacated by Rcslllution No. 92-100, recorded February 23.1992 as Instrument No. 92-123090 of Official Records, described as 1(,lIows: Beginning at the northeast comer of Tract No. 12756, as per map recorded in Book 197, Pagcs 22 through 25, inclusive, of Maps, records of said county, said comer marked by a one inch iron pipe tagged L.S. 3807, thence Nonh 47 degrees 03 minutes 41 seconds East, a distance of 128.77 feet; thence NOlth 25 degrees 20 minutes 47 seconds West, a distance of] 406.96 fcet; thence North 29 degrees 46 minutcs 28 seconds West, a distance of 1297.60 feet; '-' lhcncc North 37 degrees 23 minutes 01 seconds West, a distance 01'357.87 feet; thence North 38 degrees 11 minutcs 43 seconds West, a distance of 108.01 feet to an angle point in thc southwesterly line of Parcel 4 of said documcnt recorded in Book 2268, Pagc 146; thence along said southwesterly linc South 30 degrees 13 minutes 34 seconds East, distance or 696,81 fect; thence South 28 degrees 06 minutes 59 seconds East, a distance 01'997.26 feet; thcncc South 09 dCb'Tces 03 seconds 06 East, a distance of 263.89 feet; thcnce southeasterly a distance of 35.94 feet along a tangent curve, concavc northeastt:r1y, having a radius of 1999.19 feet and a central angle of 01 degrees 01 minutes 48 scconds \0 the northwesterly comcr of Lot 65 of said Tract No. 12765; thence continuing along said tangent curve, a distance of 1237.45 feel, through a central angle of35 degrees 27 minutes 53 seconds to the Point of Beginning. ","".", Michael L. Anderson, PLS 6916 -. --..------ Page 2 01'2 PARCEL 1: ThaI portion of the following described property lying North of the Northerly line of the property conveyed to the State of California by deed recorded December 6, 1957 in Book 4384. Page 553 of Official Records: That portion of Lot 11 of Meyer's and Barclay Subdivision, in the City of San Bernardino, as shown by Map on file in Book 2, Pagels) 32 of Maps, in the Office of the County Recorder of San Bernardino County, California, described as follows: Beginning at a point on the Northerly line of the Cajon State Highway which is South 400 46' East, 283 feet from the point of intersection of the West line of said Lot 11. with the said Southerly line; thence North 020 56' East, 304 feet to the true point of beginning; thence South 87" 14' East, 312.66 feet to the Easterly line of the property deeded to Clas P. Erickson and wife, recorded June 6,1949 in Book 2413, Page 387, of Official Records of San Bernardino County; thence North 00 38' East. 934 feet, more or less. to the Southerly line of the property deeded to the San Bernardino County Flood Control, as recorded in Book 1716. Page 156. of Official Records; thence along said line North 590 41' 15" West. 589.90 feet to the West line of said Lot 11; thence along said West line South 02" 56' West. 826 feet. more or less. to a point 500 feet from the Northerly line of said CaJon State Highway; thence South 46. 46' East, 283 feet; thence South 02' 56' West, 196 feet to the point of beginning. PARCEL 2: That portion of Block 11 of Meyer Barclay Subdivision, in the City of San Bernardino, as '- per Map recorded in Book 2. Page 32 of Maps, Records of said County, described as follows: Beginning at an iron pipe on the Northerly right of way line of California State Highway, distant South 460 46' East. 697.40 feet from the intersection of said right of way line with the West line of said Block 11: and said point of intersection is located North 30 4' East, 2130.90 feet from the Southwest corner of said Block 11; thence South 46' 46' East along said right of way line 100 feet to an iron pipe; thence North 30 4' East, 1146 feet to an iron pipe; thence North 46.46' West, 100 feet to an iron pipe: thence parallel with the West line of said Block 11. South 304' West. 1146 feet to the point of beginning. Excepting therefrom that portion lying Southerly of the Northerly line of the property. as conveyed to the State of California. recorded June 6. 1957 in Book 4249. Page 130. of Official Records. PARCEL 3: All that portion of Lot 11. according to the Map of Meyers and Barclay Subdivision of a portion of the Muscupiabe Rancho. in the City of San Bernardino, as per Map recorded in Book 2, Page 32 of Maps. Records of said County. lying within the following described property: That portion of Lots "j". "K". "L" and "M" according to Map showing a portion of Meyer and Barclay Subdivision. in the City of San Bernardino, as per Map recorded In Book 12, Page 18 of Maps, in the Office of the County Recorder of said County and a portion of Lot 11. according to Map of Meyers and BarClay .SUbdivision of a portion of the Muscuplabe Rancho in said County, as per Map recorded In Book 2, Page 32 of Maps. In the Office of the County Recorder of said County, described as follows: "- -- '-.. Commencing at the center line intersection of Irvington Avenue and Cypress Avenue, as shown on the Map of the Town of Irvington recorded in Book 3, Page 9 of Maps. in the Office of the County Recorder of San Bernardino County: thence South 270 36' 50" West 100 feet alon9 the centerline of Cypress Avenue: thence North 620 23' 10" West, 344.47 feet to the beginning of a tangent curve concave Northeasterly and having a radius of 2,000 feet; thence, Northwesterly along the arc of said curve 1200 feet to the true point of beginning. Said pOint being on the Southwesterly line of Parcel No.3 as described in deed to San Bernardino County Flood Control District, recorded July 27, 1948 in Book 2268. Page 146 of Official Records; thence from said true point of beginning continuing along said 2,000 foot radius curve 674.48 feet; thence North 08a 29' 20" West. 262.26 feet to a point on the Northerly line of said Lot "M", said point being South 890 44' 40" West. 297.96 feet from the Northeast corner of said Lot "M": and South 890 44' 40" West, 30.00 feet from the Southeast corner of said Lot "J"; thence North 270 43' 00" West. 420.00 feet: thence continuing North 27043' 00" West. 577.00 feet; thence North 37" 00' West, 170 feet to a point on the Easterly line of Lot "K" which is Southerly 660 feet from the Northeast corner thereof; thence North 37" 00' West, 400 feet, more or less, to an angle point in the Southwesterly line of Parcel No.4 in deed to San Bernardino County Flood Control District recorded July 27, 1948 in Book 2268, Page 146 of Official Records; thence North 89' 15' West, 1 96 feet to a point on the East line of Lot, "L" distant Southerly 660 feet from the Northeast corner thereof; thence Southwesterly to a point on the Westerly line of Lot "L" distant Southerly 980 feet from the Northwest corner thereof; thence Southerly along the West line of said Lot "L" and along the East line of said Lot 11, a distance of 825 feet, more or less, to the Northeast corner of the land described in deed to Jerry Berman and Sons, recorded August 26, 1953 in Book 3231, Page 465, of Official Records; thence North 470 13' 46" West along the Northerly line of said Berman Land and the extension thereof 1330 feet to the Southwest corner of the land conveyed to San Bernardino County Flood Control District by deed recorded May 4. 1945 in Book 1766.. Page 305 of Official Records; thence North 590 41' 15" West, 277.89 feet, more or less, to the Northeast corner of the land conveyed to Billy Lee Turner and other by deed recorded March 17, 1958 in Book 4462, Page 73 of Official Records: thence South 20 38' West along the East line thereof of 380 feet, more or less, to the Northwest corner of the land conveyed to Flossie I. Matthews by deed recorded January 22, 1935 in Book 1032, Page 258 of Official Records: thence South 46' 46' East, 100.00 feet to the Northeast corner of said Matthews Land; thence South 3' 04' West along the East line thereof 260 feet, more or less, to the Northerly line of the land conveyed to the State of California for freeway purposes: thence South 47' 11' 00" East along the Northeasterly line of said State Land, 450 feet, more or less, to a pOint on the West line of the land conveyed to Lucile Whitman by deed recorded January 22,1932 in Book 784. Page 65 of Official Records; thence North 2" 40' 06" East. 155 feet. more or less, to the Northwest corner of said Whitman Land: thence South 470 11' 35" East, 840 feet to the East line of said Lot 11; thence Southerly along the East line of said Lot 11 to the Northeasterly line of said State of California Land; thence South 470 11' 00" East along said Northeasterly line 1965 feet. more or less, to a point on a line extending from the most Northerly corner of Lot 15 of Tract No, 3401, as per Map recorded in Book 46, Page 94 of Maps. to the point of beginning, thence Northeasterly along said line a distance of 595 feet, more or less, to the point of beginning. Excepting therefrom any portion lying within Tract No.1 2756 as per Map recorded in Book 197, Pages 22 through 25, inclusive, Records of said County. Also excepting therefrom from portions of said land 1/2 of all oil, gas and other hydrocarbons and minerals. now or at any tIme hereafter situated therein and thereunder or producible therefrom. together With the free and unlimIted right to mine, drill and bore beneath the surface of said land at any level or levels, 100 feet or more below the surface of said land for the purpose of development or removal of such substances as reserved In the deeds recorded in Book 3038, Page 153; Book 30B?, Page 98: Book 3585, Page B2; and in Book 4806, Page 533, all of Official Records. Also excepting ther~from from a portion of said land 1/2 of all oil, gas and other . hydrocarbons, now or at any time hereafter situated therein and thereunder or producible therefrom, together with the free and unlimited nght to mine. dnll and bore beneath the . surface of said land at any level or levels. 100 feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved in the deed '"__, from Wilma H. Weaver to Wilbur Ray James, a single man. recorded August 25, 195B in Book 4586, Page 188 of Official Records. Also excepting therefrom from a portion of said land 1/2 of all oil, gas and other hydrocarbons, now or at any time hereafter situated therein and thereunder or producible therefrom, together with the free and unlimited right to mine, drill and bore beneath the surface of said land at any level or levels. 1 DO feet or more below the surface of said land for the purpose of development or removal of such substances, as reserved to William Casady In deed recorded in Book 4012. Page 320 of OffiCial Records. PARCEL 4: All that certain real property located in the City of San Bernardino. described as follows: '-" A portion of Section 2, Township 1 North, Range 5 West. San Bernardino Meridian. unsurveyed as said Section line may be extended across Rancho Muscupiabe, as per Map recorded in Book 7, Page 23 of Maps, Records of said County. said parcel also being a portion of Block 11 of the Meyer and Barclay Subdivision, as per Map recorded in Book 2, Page 32 of Maps, Records of said County. more particularly described as follows: Beginning at a point on the Northerly line of the Cajon State Highway. said point being North 46' 50' West. 420 feet from the intersection of said Northerly line and the Easterly line of said block 11; thence along said Northerly line of said Cajon State Highway. North 460 50' West. 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11. North 20 3B' East, 1037.14 feet to a point; thence along a line parallel to said Northerly line of said Cajon State Highway, South 460 50' East, 420 feet to a point; thence along a line parallel to the Easterly line of said Block 11. South 20 38' West. 1037.14 feet. more or less. to the point of beginning. Excepting therefrom that portion lying Southerly of the Northeasterly line of that land described in the deed to the State of California, recorded August 2, 1957 in Book 4294. Page 143 of Official Records of said County. PARCEL 5: All that certain real property located in the City of San Bernardino, described as follows: That portion of Block 11. Meyer and Barclay Subdivision. as per Map recorded in Book 2. Page 32 of Maps, Records of said County. described as follows: Beginning at the intersection of the East line of said Block 11 with the Northeasterly line of the parcel conveyed to the State of California by deed recorded June 5. 1957. as Instrument No. 174, in Book 4247. Page 563, of Official Records of said County; thence North 2" 40' 6" East, 155.18 feet to the Northeasterly corner of the parcel of land conveyed to Harold S. Ladas by deed recorded August 12, 1959 as Instrument No. 93, in Book 4901. Page 17 of Official Records of said County; thence North 460 50' 00" West. 420 feet, more or less, to the Northwesterly corner of said Ladas Land; thence South 20 40' 06" East, 155.0B feet along the West line of said Ladas Land to a point in the Northeasterly line of said parcel conveyed to the State of California; thence South 47" 11' DO" West. 420.06 feet to the point of beginning. SUBJECT TO REVISIONS -- TO BE BASED ON BOUNDARIES AS DETERMINED BY ALTA SURVEY '" . San Bernardino Flood Control Distdct Parcels Legal Description Parcel' A: A ponion of Lot II of the Re-subdivision of Meyers and Barclay Subdivision, in the City of S~n Bern~rdino, as shown by Map on file in Book 12, Page 18 of Maps, in the Office of Ihe County Recorder of San Bernardino County, California, described as follows: Commencing ~t the southwest comer of the land conveyed to San Bernardino Flood Control District, per document recorded in Book 1766, Page 305 of Official Records. thence South 47 degrees 13 minutes 46 seconds East, along the southwesterly line of the land described in document recorded in Book 1716, Page 156 of Official Records, a distance of 1328,09 feet, to the most southerly corner of said parcel of land described in document recorded in said Book 1716. Page 156 of Official Records. said point also being Ihe True Point of Beginning, and located on the East line of said Lot 11; thence North 02 degrees 40 minutes 02 seconds East, along said East line of Lot II, a distance of 826.47 feet; thencc South 42 degrees 46 minutes 14 seconds West a distance of 632.15 feet. 10 a point on said southwesterly line of the land described in document recorded in Book 1716, "-_ Pugc 156 of Official Records; thence South 47 dq,'Tees 13 minutes 46 seconds East, along said southwesterly line, a distance of 532.39 feet, to the True Point of Beginning Michoel l.. Anderson. PLS 6916 ~_.__._. ------------ Page I of2 . ATTACHMENT NO.2 TO TEMPORARY LICENSE AGREEMENT FOR THE GRADING AND IMPROVEMENT OF LAND Vicinity Map of the Grading Site [Attached Behind This Pagel '- EXHIBITH-13 RVPU8IKRANDOLPH1681716,15 P\Aaendal\Ajtnaa AlIlIChmc:milApmi-Amend 2006\07.24.06 C~1lI')' Homes DO" - IS draft 7-13-06 dol; - '- '~, '-' "'--, PROJECT AREA DESCRIPTIONS Devore Road 1- 215 Freeway Project Area 2 (279-Lot Single Family Residential Development) Project Area 1 (Retained by Redevelopment Agency for Future Park Development) Little League Drive . ATTACHMENT NO.3 TO TEMPORARY LICENSE AGREEMENT FOR THE GRADING AND IMPROVEMENT OF LAND The Work Plan The approximately seventy nine (79) acre Site and an approximately three (3) acre portion of the SBCFCD Parcel are to be developed for residential development ("Project"). Improvements will consist of residential pads, slopes, streets, drainage, landscape, fencing/walls, flood control improvements (debris basins and embankments), greenbelts, dry and wet utilities. and other improvements as conditioned by the approving agencies. The Developer shall be required to obtain all necessary approvals and permits in order to construct roadway improvements and utilities. Permits to be obtained shall consist of the following: . Rough Grade Permit/Inspection . Roadway Construction Permit/Inspection (includes sewer & drainage improvements) . Waterline Construction and Relocation PermIt/Inspection . Landscape Construction Permitllnspection . San Bernardino County Flood Control Construction/Encroachment Permit/Inspection . Caltrans Encroachment Permit . SWPPP & WQMP . Dry Utility Permits and ContractsfWork Orders This phase of the Project shall coincide with the construction of flood control/drainage improvements for the entire Project. The mass grading operation shall incorporate the redistribution of on-site and adjacent soils and aggregate to economize on costs. mobilization and efficiency of the overall operation. A portion of the grading operation shall consist of on-site processing of materials for use in grading, roadway base and other necessary improvements. A separate operation to facilitate this processing of material will be in place throughout the duration of the construction operations. Mass grading shall consIst of the movement of soil and materials throughout the Project. Existing soils shall be r.emoved and replaced as dIrected by the project soils engineer and supervising civil engineer of record. A major portion of the grading operation and flood control improvements intended for the Project is the excavation and construction of a debris basin or series of debris basins. This activity will require the excavation and movement of upwards of 3,000,000 cubic yards (c.y.)' of soil material and aggregate. Materials removed/redistributed as a result of flood control and other public improvements may be suitable, subject to soils engineer recommendations, for placement within the residential portion of the proposed subdivision. In addition to those improvements mentioned above, it is anticipated that certain 'off-site' improvements e.g. secondary access roadway, back bone utilities and flood control improvements, will be extended beyond the project boundaries. These improvements will require the participation of adjacent property owners and several governmental agencies. EXHIBIT H-14 RVPUBIKRANDOLPH1681716,I5 i'v\,geooalilAgmda Atl~lluv'gmu-Ammd 2006\07.24-06 Century H0me5 DDA - 15 draft '.IJ...06.doc '- "'---- . EXHIBIT I TO DISPOSITION AND DEVELOPMENT AGREEMENT Developer Note [Attached Behind This Page] EXHIBIT I RVPUBIKRANDOLPH168171615 P \AgrndaslAaenda AnachmenlJ\Agrms-AmendlOO6l07_24_06 Ccnlury Homes DOA. TS draft 7.13-06doc . UNSECURED PROMISSORY NOTE ~,._..- I 1 San Bernardino, California ,200_ FOR VALUE RECEIVED, the undersigned, Century Crowell Communities, LP, a California limited partnership ("Maker"), promises to pay to the Redevelopment Agency of the City of San Bernardino, public body corporate and politic ("Holder"), the principal sum of r I Dollars, [($ )] with interest thereon compounded annually at the rate established in Section I below. This Unsecured Promissory Note ("Note") IS given In accordance with that certain Disposition and Development Agreement ("DDA") dated I 1. 2006, between the Maker ("Developer" therein) and Holder ("Agency" therein). The DDA is incorporated in its entirety by this reference, and the terms of the DDA shall control if there is any inconsistency between this Note and the DDA. All initially capitalized terms used but not otherwise defined herein shall have the meanings given to such terms in the DDA. This Note is unsecured. I. The principal amount of this Note shall accrue simple interest at the rate of seven percent (7%) per annum, with interest accruing from the Closing until paid in full and compounding on an annual basis. The Maker shall have the right at any time and without penalty to prepay the whole or part of the principal balance of the Note. All payments due hereunder are payable in lawful money of the United States of America in same day funds. All "-' payments received shall first be applied to accrued and unpaid interest and the balance shall be applied to the unpaid principal. 2. Maker shall pay Holder the Note value as follows: 2.1 Prior to the Maturity Date (defined in Section 2.2 below), Maker shall pay to Holder the sum of I 1 Dollars [($ )] at the close of escrow for the sale of each completed New Home. Other than the foregoing, Maker shall not be obligated to make any scheduled payments on principal or interest prior to the Maturity Date. In no events will payments to Holder, exclusive of interest under this Note, exceed the then remaining unpaid principal balance of the Note. 2.2 The entirety of the unpaid principal and accrued and unpaid interest payable under this Note shall be due and payable on or before the fourth (4th) anniversary of the Closing ("Maturity Date"). 3. Upon the occurrence of any of the following, an "Event of Default" shall be deemed to have occurred and the Holder may, at Holder's option, without prior notice, declare the unpaid balance of this Note, including accrued interest thereon, to be immediately due and payable, and the same shall immediately become due and payable: 3.1 Maker shall fail to make any payment due under this Note or the Agreement within thirty (30) days following written notice of such failure from Holder, or EXHIBIT I-I RVPUBIKRANDOLPHI681716.15 P \AgendaslAlenda AltlKhmenlslAgrmn-Amcnd 2006107.24.{)6 CCI\IlIl')' Homes DOA - T$ draft '.13-06 doc . . 3.2 Maker shall (i) become insolvent or unable to pay Maker's debts generally as they mature, (ii) make a general assignment for the benefit of creditors, (iii) admit in writing Maker's inability to pay Maker's debts generally as they mature, (iv) file or have filed against it a petition in bankruptcy or a petition or answer seeking a reorganization, arrangement with creditors or other similar relief under the Federal bankruptcy laws or under any other applicable law of the United States of America or any state thereof, or (v) consent to the appointment of a trustee or receiver for it or for a substantial part of Maker's property; or 3.3 Any order, judgment or decree shall be entered appointing, without Maker's consent, a trustee or receiver for it or for a substantial part of Maker's property that is not removed within sixty (60) days from such entry; provided, however, that, in the event of an actual or deemed entry of an order for relief with respect to Maker under the Federal Bankruptcy Code, this Note and all interest and other amounts due hereon shall automatically become and be due and payable, without presentment, demand, protest or any notice of any kind, all of which are hereby expressly waived by Maker. The Holder may exercise Holder's option to accelerate after any Event of Default, regardless of any prior forbearance. 4. The unenforceability or invalidity of any provision or provisions of this Note as to any persons or circumstances shall not render that provision or those provisions unenforceable or invalid as to any other persons or circumstances, and all provisions hereof, in all other respects, shall remain valid and enforceable. 5. This Note shall bind Maker and Maker's successors and assigns and the '- benefits hereof shall inure to Holder and Holder's successors and assigns. 6. The validity, interpretation and performance of this Note shall be governed by and construed in accordance with the laws of the State of California. 7. Time is of the essence of this Note. 8. In the event of the bringing of an arbitration, action or suit by a party hereto against the other party by reason of any breach of any of the obligations of the other party arising out of this Note or any other dispute between the parties concep1ing this Note, then, in that event, the prevailing party in such action or dispute, whether by final judgment or arbitration award, shall be entitled to have and recover of and from the other party all costs and expenses of suit or claim, including actual attorneys' fees. Any judgment, order or award entered in any final judgment or award shall contain a specific provision providing for the recovery of all costs and expenses of suit or claim, including actual attorneys' fees (collectively, the "Costs") incurred in enforcing, perfecting and executing such judgment or award. For the purposes of this Section 8, Costs shall include, without implied limitation, attorneys' and experts' fees, costs and expenses incurred in the following: (i) post judgment motions and appeals, (ii) contempt proceedings, (iii) garnishment, levy and debtor and third party examination; (iv) discovery; and (v) bankruptcy litigation. [Signatures on following pages] EXHIBIT I-2 RVPUBIKRANDOLPH1681716,I5 P IAgmdasv'&enda Anacluncnuv.,nns.AIl1Clld 2006;07.24.06 Cauwy Homes DDA . TS drift 7.1)-06_dol; . " ""--' Date: SIGNATURE PAGE TO UNSECURED PROMISSORY NOTE MAKER: CENTURY CROWELL COMMUNITIES, LP a California limited partnership By: Century Homes Communities, a California corporation General Partner Its: By: RVPUBIKRANDOLPH1681716,15 John W. Pavelak Its: President P \A1mda5l.Aaenda AnachmentslAJrmts-Amend 2006\07.24..Q6 CenUI!'}' Homes ODA. TS dnfI7-13-Q6 doc EXHffiIT I-3 . w SIGNATURE PAGE TO UNSECURED PROMISSORY NOTE HOLDER: REDEVELOPMENT AGENCY OF THE CITY OF SAN BERNARDINO, a public body corporate and politic Date: By: Maggie Pacheco, Executive Director APPROVED AS TO LEGAL FORM: Agency Counsel EXHIBIT I-4 RVPUBIKRANDOLPH1681716,15 P\Aaenau\A.aenda Attachmmu\AIf'Id'-Amend 2006\07-2"-06 Century Homn DDA - TS draA 7-J3-06doc 'f EXHIBIT J TO DISPOSITION AND DEVELOPMENT AGREEMENT Infrastructure Eligible for Public Financing District (Section 2.1 O(a)) Utilizing Assessment District formation through the application of 1913 and 1915 Improvement Acts and or Community Facilities District (CFD) formation though the application of Mello- Roos Community Facilities Act of 1982 Street Improvements Storm Drain Construction Sewer Construction Parkway Landscaping Street Lights Park Construction Public Facilities Dry Utility backbone and trenching Park Fees School Fees Sewer and Water Fees District formation deal points included but not limited to the following: -'- District (Bond) sizing to allow for an effective 2% total tax rate. Minimum Bond Term - 30 Years EXHIBIT J RVPUBIKRANDOLPH1681716,I5 P lAimdas\Agenda Anachmenu\AjmU-Mleoo 2006\07.24-06 CenIW)' Homes DDA - TSdBfi 7-1J-06 dot ~ntN~~ inln '~;;\~~~~sa~tg: '7t.~7;~' INTER OFFI~~ ~E~ORAN~~M ~_~' l' OFFICE OF THE CITY ATTO, R,NEY L II A ., I CITY OF SAN BERNARDI@ ~ a ~, City ClerklCDC Secy City of San Bernardino TO: MAYOR AND COMMON COUNCIL FROM: HENRY EMPENO, JR. Sr. Deputy City Attorney RE: Council Meeting on July 24, 2006 Agenda Item No. R37 Public Hearing Disposition and Development Agreement by and between the Agency and Centnry Crowell Commnnities, LP (Agency property loeated north of Little League Drive, east on-2I5 Freeway) DATE: JnIy 24, 2006 cc: James F. Penman, City Attorney Maggie Pacheco - Interim Executive Director - EDA Attached pIease find revised pages 45 and 46 to the DDA for the above-referenced Agenda Item. Only Section 6.10 Indemnification, has been revised as shown on the attached insert, so that the Developer is now required to also indemnify the City and the Agency if anyone challenges the Agency's approval and execution of the DDA or if anyone challenges the City's adoption of the Resolution relating to the Agency's approval and execution of the DDA Previous drafts of the DDA, as recently as June 29,2005, included the following Subsection (c) to Section 2.13: "Section 2.13 Review and ADoroval of Condition of Title bv the Develooer. (c) The Developer acknowledges that the Site is currently subject to the terms and requirements of that certain "SettIement Agreement and Release" in the form attached hereto as Exhibit J. Developer acknowledges that it shall take titIe to the Site subject to the terms of the Settlement Agreement and Release." -1- P.IEMPENOIMano to Mayor and Coo>moo Council.. R37.wpd :IF R 31 "J"""ly ~/;l.O~ Exhibit J was the I989 Settlement Agreement to the case: Cable Lake v. Citv of San Bernardino, San Bernardino County Superior Court Case No. 239649. This Settlement Agreement (copy attached), between the City of San Bernardino and A W Associates No. I, the successor in interest to CabIe Lake & Associates, required the subject property to be developed with single family homes with lots at a minimum of IO,800 square feet in size. That previous Exhibit J and the reference in Section 2.13 to the Settlement Agreement has now been deleted in the DDA pending before the Council and Commission. We respectfully request that the Council and Commission adopt the recommended motions on the Council Meeting Agenda with the revised pages 45 and 46 included in the DDA so that the City and Agency are adequately protected if their actions are challenged in Court. The likelihood of such a legal challenge is unknown given that AW Associates No. I now appears to be a dissolved business entity, with the Agency now holding title to the subject property and given that the Settlement Agreement specifically excludes third party beneficiaries at Section I O. In any event, the City and the Agency should be protected by the language added to Section 6. IO Indemnification, in the DDA. 1/17; ~. Henry Empeiio, Jr. Sr. Deputy City Attorney -2- F:\EMPENO\Memo to Mayor and Common Council re R37.wpd DD A R~/~ P4f4- lf~~Zf-6 Section 6.08. Approvals. (a) Except as otherwise provided in this Agreement, approvals required ofthe 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, ifno 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 not exceeding sixty (60) calendar days to the Schedule of Performance. Section 6.09. Real Estate Commissions. The Agency shall not be liable for any real estate commissions, brokerage fees or finder fees related to any actions or conduct by the Developer. Section 6. ro. Indemnification. The Developer agrees to indemnify and hold the City and the Agency, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to (i) any act or omission ofthe Developer in performing its obligations hereunder, (ii) the approval and execution of this Agreement by the Agency, and (iii) the adoption by the City of the resolution relative to the Agency approval and execution of this Agreement. The Agency agrees to indemnifY and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Agency in performing its obligations hereunder. Section 6.11. Release ofDevelooer from Liabilitv. 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 any Site Lot or portion of the Site when that Site Lot or portion of the Site is released from the controls of this Agreement, as more particularly described in Section 3.04(d). Section 6.12. Attornevs' Fees. If any party hereto files any action or brings any action or proceeding against the other arising out of this Agreement, or is made a party to any action or proceeding brought by the Escrow Holder or a third party, then as between the Developer and the Agency, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, its reasonable attorneys' fees as fixed by the Court, in such action or proceeding or in a separate action or proceeding brought to recover such attorneys' fees. For the purposes hereof the words "reasonable attorneys' fees" mean and include in the case of the Agency the salaries and expenses of the lawyers employed by the Agency who may provide legal services to the Agency in connection with the representation of the Agency in any such matter, whether such lawyers are employees of the City or Agency or third parties. Section 6.13. Effect. This Agreement shall be binding upon and inure to the benefit ofthe parties hereto and theirrespective heirs, executors, administrators, legal representatives, successors and assigns. -45- ARTICLE VII ENTIRE AGREEMENT, WAIVERS AND AMENDMENT Section 7.01. Entire Agreement. (a) This Agreement shall be executed in two (2) duplicate originals each of which is deemed to be an original. This Agreement includes fifty-six (56) pages and twelve (12) attachments (see list of attachments at Section 1,06), which constitute the entire understanding and Agreement of the parties. (b) 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 Site and the development thereof, including in that certain "Memorandum of Understanding" dated as of July 6,2004 between the Agency and the Developer, as amended. (c) None ofthe terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with the Agency Grant Deed conveying title to the Developer in the Site, and this Agreement shall continue in full force and effect as to each Site Lot before and after such conveyance until issuance of the Certificate of Completion for such Site Lot. (d) All waivers of the provisions ofthis Agreement and all amendments hereto must be in writing and signed by the appropriate authorities of the Agency and the Developer. ARTICLE VIII TIME FOR ACCEPTANCE OF AGREEMENT BY AGENCY AND RECORDATION Section 8.0I. Execution and Recordation of Notice of Agreement. (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 ofthe Agency in its sole and absolute discretion within forty-five (45) 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 the parties shall be mutually released from any further duties or obligations hereunder. The Effective Date of this Agreement shall be the date when the Agreement shall have been executed by the Developer and formally approved by the Agency, notwithstanding the Agency's actual signature date. (b) The Developer and the Agency agree to permit recordation of a Notice of Agreement against the Site in the Office of the County Recorder of San Bernardino County. The form of such Notice of Agreement is attached hereto as Exhibit G. [Signatures on following pages] -46- Inserts to Section 6.10 of Century ODA: Section 6.10. Indemnification. The Developer agrees to indemnify and hold the City and the Agency, and their officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to tiLany act or omission of the Developer in performing its obligations hereunder,(jiLll1e_?PPX9"\-'\l",m~1 e)(~ellJjQ,L9LlhL~J~g!:ceJ:lJeDtJ?LJJ!:e-6ge!leY,_i!tl(L(iii}jJle"_<J~h:>JltiQ!2J:2Lti}Lc;i1.L of -1iJc resolution relative to the Agencv approval and exeeution (1fthis Agreement. The Agency agrees to indemnify and hold the Developer and its officers, employees and agents, harmless from and against all damages, judgments, costs, expenses and fees arising from or related to any act or omission of the Agency in performing its obligations hereunder. R VPUB\KKR\681716.8 EXHIBIT J TO DISPOSITION AND DEVELOPMENT AGREEMENT Settlement Agreement and Release [Attached Behind This Page] EXHIBIT J EXHIBIT 8 '1(.0& SE':''TLE:!<E:-\T ;\cr([!:~::>;7 l',l.;C RELE,r.,:;':; This SETTLEMC~T AGREE~ENT AND RELEASE ("~g=eemen~") is rnada by and among the CITY OF SIIN I3ERNIIRDINO ("City") ",:1<1 AW A3~oci3tC5 NO. as of 1 ~o;e5;;r 1n ;.(l;:cr-est "to CAULS LAKe &. J\SSOCIJlTES. 1"89, \;~th reference to the following facts and cirCUI~lstance~: REI;ITALS: ~.'HERE^S. on c.r about t"arch :6. 1'057, a la'.,/suit was filed ty JIIY CHRIST0PH[;l Si\~:;EC/(!:: ar.d BARBARA SKY <=ntitled .Sky and Saldccke v. City of San Gernardir:o", C.3se ::0. 2365.;.b to chilllenge t~e ~deq~acy ~~ t~IC City's Ge~e=21 Plan. WHERE,\S. en ur abo...:t ';'.;11' ...... 1~IS7. C..::~le Lay.c filed a motion for leave to i~~t~rv~rle ~~j vaca~e a J~dg~c~t tnt:er~d ~n C~:.;~ IJ':l. ::26E3E. ....:.lic:h ....'\:;:i e~r,i':2d by th~ CCI..):"'t. WHEREJ\.S. C:J cr el:''.)L~t ~;r:pt,=.;:t:'2r .j, 1987, C.:.b)~ L.:.;ke :-iled its ::otic~ af .J.p?~,;~ ::.'=-n t:-l':} decis~Q:-1 elf '(~le Cou::r-t in C~!;;;12 :.~c;. 2JtE36. r<s.t:cn to 'J2Ca1.:e Jud~n:ent \..'3.5 rf:m::!";dl.3-t"1 tG t"ri21 cO~.JI"t for fu:r-tt,er hearirlg. WllEREAS. on or u.)out ~[,Ft'=:I:':i~r 4, !;S7, C~'c,:'e :'.=ke fi:.'?d.a 2..aw5uit i1gu:..nst:.. trll~ f::.':.y of SCln B~rndrc:.nc., CaSE :.;0. ~3tj"i 14 ':-rltit!~= Cable L::.kc " . Ci:y DE3:ms Septen:~e:::- 26. 19E.9 ~ EXHiBIT B of San B.=:rnarnlno. l,":.r lr....ersc ::~.nGemr.at:.on and violat~on of C~~~l Eig~ts. WllERE^S, on .or ;,bQut s~pt:eli',be:- l7, 1ge7, Ca'::le ~ake filed a I:!rit of 11,Jr.date aga:'.nst the City of San 5e:-nardir.o, Cast! ~~o. 239E~9 er:.titled Cab)_e Lake v. City of San Dcrnordino, et 31. WHEREJ\S. City and 1\W l\ssoc:iato;!s No. 1 desires to settle a:1d resolvr~ all disp'Jt~5 ~J)d claims among the parties to this 3gr:~cment. '..Jithout the nccess1ty of fu=t~er :itlga~~cn. F'OR " CONSIDEr-lITION, RECEIPT or WHICH IS HEREBY l\crJIOWI.. i:DGED . IT IS 'I'IiSREFO~E ACnEEO l,S FOLLOWS: 1. I\W !\:::sociates 1.)0. 1 t1cr~L)y f0rm311y. abandons the Cable Lake p=c.jest as a;;rc~ed by t~e City. 2. City of San Bernardino \..'il~ allc....,' ^W l\!;sDciatc.9 l~o. 1 to be!ld :.t:;; I=a!.-c~15 .:5'2:c~i~)e:j r::-Estr.':..1y ~~ Ten~at.i'..'e ';::-ac"':::s 12756 a:"1d 1".3172 \:::cer ':.il'2 [ollc..,lr,g ::::::"1citlc.ns: ,). J\W )\$~ociatcc No:' 1 \,./ill c.c;r.p1y \.:ith Conditions 1-30 uS set ~:>rth i:i A~.:t3,:11:rent .r...; 2.t:"tach~d her-eta and by this ref';=er.ce ir,ca:"p'::;rl.:"':cd r.~:-~in and shall ~ppli' to the Tap provided to t~e City P:2nn~ng D~part~len~, a copy cf '..;hich is att,,(::-'~d :-,,,,reto rr,~rJ.:",d l\ttachment B. and by this ~~!c~ence 1nC~r?0r~~~d !l~rEi~. b. J\ft Associates No. 1 $~all build out its p:coj~ct .'~t:: 10,800 square foot lets cOClsistent '.,.ith thp. City's General ?; an. D~B:ms Septpnbe:- 26, ~';f]1 2 EXHIBIT B c. Cl 't"y .:Jgree:3 that th9 E:r",'iro!"'.mental IIT'-pact Report previously do~e for the City'z General Plan in June of 19B9 1s 5uffici€nt for ',h" ^W lIssociates Ho. 1 Project "'ithout the ~ecessity for further crlvironmentol impact studies. d. Nothing in this agre€ment shall be construed to affect the re~uirement that AW Associates No. 1 must process 1 ts proj Get throL.;gh the normal City apprO\'ul process. 3. Release by AW lIssociates No.1. Upon execution of this ,>,greement by th." r:arties hereto, lIW AssociateD No. 1 hereby rele:3zes ared disch,~rgcs City and its predecessors. successors. assigr.s, ~~'=I\tS. off::.ct:.Jrs. cj:-~ctors, employees, ::-epreser.tatives, 8:1d a ttQ::-ne~'s. frcm ~IlY 2nd all cla1:T\S. actions, demands. car.1?ges. costs, e>:penses anj ilttorneys I fees, of any na'ture, .....hic:h 1~:Jve e:{isted or ,",'~ich do exlst. \..,':&ether kn().....n or l;r~k.nGWn. ~nclud1ng .....ithout liJ:li tati..on these a'risi.ng out cf, set fc'rth in, crea~ecl by, lncidental te>, c;r in any ',:aj' cc>nnected, either directly 0:: indirectly, withllW Associato No. 1'5 Clai;ns -ter ['Rmagp- s. 4.. DJsmissal of 1\ctions. Upon eXecution of this ar;r-e:ement Cj' the pa::-ties hereto, ^W l\::;socio.tcs No. I, as .s'..;c::csscr in ir.terest to Cable Lake, he~'eby agrees to !orth...~th dismiss ..J1th prejudice its actions as fello.s; Case No. 236836 - Sky and Saldecke v. City of San Bernardino. Hotion to Vacate Judgment Case No. 238714 - Cable Lake vs. City ,of San Bernardino DE;B:ms September 27, 1989 3 EXHIBIT B Casa No. 239549 - CHblc Lako vs. City of San Bernanlino and forward ca~formed c.")pit:s of SZ-.llC to - , , ~-. part.les. 5 . Release of Unkno~'Tl Cl~ims. !t is the i~tentio~ at City and l\W Associates No.1. as !:,ucces:;or in inte:cest to Cable Lake th a t the reI e a s e s :; e t f.~ r t h her e ins hall bee f fee t i \' a wit h :caspact to each and e,'ery cl,nm. der.1and. and causa of action above specified and. in fur~hc~ance ot this intention. each party hereby expressly '.'ai"es ;:he ;:.ro....isions of Civil CDdo Section 1542. which provides: ".'1 G"N~!1AL nELE.'1SE DCES ~JOT EXTEND TO CLAIMS WHICH THE C9~~I?CR DOES KOT ~NOW OR SUSPECT TO EXIST IN 'US FAVOR AT THC: THIE OF EXO:CL'T~,';:; ':"HE RELE.L.SE. .;HICH IF !',:;C"..::-J BY lil~l r~UST I-iAVE l'lATf.P.JAL:.,Y T'.i'FECTSD HIS SE'fTLH1E::T WITH THE [,EBTOR." 6. Disp'u ted [1 a i,!,-.:. T~ls S2tt]e~er.~ is of disputed claims 2~d is not an acn~ssiDn cf liJt::ity by City_ '7 . IJO Duress. etc. T:-le j:-ar':::..-:s h-=:reto ha;.'e rc=ad i:lnd understa:ld tr,ls As=.:,eDent and l""?c"/~ b'~'2n re?=o?::E::-:~c=d und ad\,'iscd by co u n s e 1 i n co:; r. t: c t i.~ n ~I f2 r .:: 1..; j t h ~ n d n'J -: lJ all Y ',J a r r- a. n ten d represent tha~ lhis ~gree~~nt ~3 cx~cutEd ~OlUI)ter~ly ~nd ~it~\out du-=-ess or undue ir.fli.lence en t:H3 p:Jr-t or on bE-tlalf o! en:/ par-ty hereto, Each party ~u~ther ~3rr~nts its authcr~ty to enter i~to said agreement. 8. Remedy. If any pa=ty hereto b~lievcs that another party hereto has breached this Ag=B.~ent, the sole and exclusivB remedy shall be en action for bre:cch of this !..grQcment. Judgment for CEB:ms September 26, 19a9 4 EXHIBIT B AW Associ ato9 ~Io. 1 a~~ o~=~on b'cU9~t agair;st t.!""\-2 City bj' Aw -Associates No.. 1 fo':" breach of this ;".g=e.~ment shed 1 ::e=n~er AW hssociate9 No. lis rsl'=a.se un,.ier th13 Ag~:€cl7lent a nullity, and AW Associates Ho. 1 r.iCiY pursue its Cla.ims for: D.!/r.ages Qgalnst City. 9. Successors. ,his ~,';J:2eme:1t ~3 binding upon and sflall inure to the benefit to the parties hereto and each pa~ty's respect1~o successors 2:3'sig:1S, hei~s ond personal reprasentatives. 10. Third Party Claims. Thil parties ta this agr"ement herein do not iJ1tend to bonefit cr C3use by t!\is agreement any ri9htS or claims hc=ein ty =ny third pa=ties. 11. Entire Aqr~ement. ~h!s A;reemC:lt contains the sole and entire agreement a~j understanding of the parties with res~ect to the subject mat~er herEof &nd ~tlpe~scdos Cill prior agree~cnts and ur.derstand.!.nc;s. .....!-IE:t~er '..:rltte:n or ural. :;0 rep:,-eser,tati:Jns, oral or otherwise. express or lnplied. ether ~han those contained l:e.rein, ha....s bG~n r.l;:!Oi;! try a:-:y ;:c:r~:r' hcr'et:>. 12. W.:J i1.'er. M~ui f i~Dn. TerminntiQn or /k,mendment. ~~o provisjo~s he~ecf rn~y t~ ~aiv~d ~nlcss in writi~g. and sig:~~d by each party h~re~o. \oi3i\:"2r" of i:I:1Y one ;:r':>\'ision he:..-ein shall not be deemed to be a waiver of ijr.y other P:::'ov.:..sior\s herein. This .e.greement may be T71'=,di:1.ed. tt::-minated or alllcnded at c.nJI ti:ne by mutual consent, but only by a ",'~ittE.'1l agri:'ement e,.;ecuted by each of the parties he=~to. 13. ^ttorneys' Feez. Irl any 2cticn to interpret or enforce D"Il:ms Septemcer 25. 1929 ;; EXHIBIT B any provision of tr.:Ls J..srE:err.er.~, ~~2 p;:-e.....dill:-~9 pa=~y shall be entitled to its =easonable attcrneys' fEes aJ~d ccsts. l~. Governinq Law. T~is .lI.,grr:.E-I11~nt shed 1 be '=cr.st:-ued. and enforced in accordonca wlth the laws of the State of California, applicabl~ to agrce~ents exe~ut~d and to be ~Er:crmEd in the State of California. 15. Counterparts. This Agra~mEnt may be executed in one or mo:-e counterpart5, ecc~ o~ \.Jh1c~, shall t::'3 an orig!ncl D'.Jt all of ~hich shall be deemed to const~t~te a sirlgle document. 16. Notices. :~otices re~cired to h~ giver, ~y the to=ms of this AgreGrr.i:nt shall be given b~l personal 3er\'1ce, cr by deposit of the same in tr.c cu~tvdy of the L1nit60 States Postal Service, -J::o:;tage prepaid, re.:;i~te=ed c:- c.zrt:if.:.ed J:1ail, return receipt =equestcd. addressed ~o tt18 p6r~y to be s~rvcd 2S fo~lows: If to City: Ci~y of ~~n Bernardino 300 No. "D" Street San Bernardino. CA 92418 Attention: Shauna Clark Cit:y Clerk If to AW Associates No.1: AW ^ssociate~ r~o. 1 17911 Mitchell Ave. !r,'i~e, CA 92714 With copy to: Reid & Hellyer ~ttorn~ys at Law 3660 Lemon street P. O. Box 1300 Riverside, ClI 92502 By notice givr:n in accorcance '..ith ttli5 pa:cag=cph 'to all other parties, any party hereto rr.ay change t~e designated :cecipient of DEB:ms September 25. 19E9 6 ,-.... lXHIBIT 8 notice on it3 behclf. ~Ot~C2S !~~rCl;' Sh~ll b8 d~em@d given as of -the date of per.~or.al s(::r':ice, lir i~;..'''2 (5) CCn5E.CU~~.Je calendar days after cepcsit of lr.e 53r.-;.: i'~ tr.G t:"'JS'i:cdj" c.t ~aid ?ost.al SerJice. to be executed as of the date IN WITNESS WHEREOF. the ",,,:::ties hove cc'J's2d this .>.g:::eemer.t tirst above ~ritten. ^TTEST: Au..xt.&61{ City Clerk ' DAT~: O:::~h.- 11. 1983 ~~~ b /n ,/ r5-;fl (. ".-<-~ 'L l.j. H hOl' omb, ~"ttfyor AW A~sociatco No.1, a California G~~e:::al Partnership by the Pacific Company. a California '==r~o:-dtiQn, its j';anaging GenEral ?a~tner, Sllccessor in interest to CABLF. L~Y.E & ~SSOCI~TES. ~ General Pa~tner~hip DATE: \ \ -- \ 3y -1:...:..__.:.-' .\0..""" I' " ~'C'" . _,. 01 t~-:t.. APPROVED AS TO FOP.!1 J._NlJ LEGAL CONTENT; Jc:;;.a5 r. ?€::-:ncn r-A.ttC.r09Y (~u ~~ Denice E. E::.-ue h~Sls~ant C~~y Atto~ne7 DATED; Cc=c(;er 12, 1989 f7l ' \ ../ I.~_. DA.TED. '- C tL I( \ .:-. I ) ~ ," r ." " \./ I II, REID (; HELLYER r r "~I: ,; ----- ---- , I I .. i . ) '--"'" ,: i.,..---. D:,. '.ll(,l,l,\. {'c-.'.'-1 Attorn~ys for AW~A.SSOCia~~ No.1, !;U::cessor in interest to Cable Lay.e & Associates DEB; ms September 26. l'JB9 7 EXHIBIT [J C00DI7ICIIS OF APPROVAL f0R ,~NT:'';'IVE 7nACT 12706 ';:-':D TEt;T"TI\i..i; TR"C'T 13172 1. In compliance with Municipal Code Soction l8.~4.070(B) and Flood Cont~cl District rccom~endatic~s dated June 17, 1986, levee wirh rock slope p"otection shall be provided Bnd shall extend from the southeast tract boundary northerly to join the existing lO'Jee north of the site. The rock slope/ba~k protection ~hall be approved by the County Flood Control District. 2. Per Flood Control District recommendations dated January 24, 1986, a 100 foot building setbeck shall be prOvided from the cry toe of the tIood control levee. Depending on the s:i=e of rocks protQct:lng the slope on tho levee and whether grouting is provided, the setback may be reduced to 75 feet or 50 feet. subject to the approval of the County Flood Control Dis~rict. 3. In compliance '"ith the Flood Control District recommendaticns dated July 31, 1984, and Nunicipal Code Section 18.,4.070(8), adequate prOViSions shall be provided to intercept and conduct the Possible overt low from Cable Crellk. no,th of the tract, around or' through the site in a Ir.an"er "'hich does not adversely effect adjace~t or downstream properties. The developer shall provide a stru::-tural block ~all capable of withstanding debris :cad5 to 3-feet along ~he '..esterly, northerly and easterly bo,",ncaries of the site. In addition. adeCluate rolls shall be provid(!d or. the llnt:canco rcaGs to the site at the Frontase Road to ~inimi=e the possibility of street flow er.te::-ing the site. Runoff from the freeway must be taken thrOUgh Or around the site to a channel Or City epproved drainage faCility. 4. The ce'.'eloper 51:all 5ub"..it a flood hazard mitigation plan to t!:e Flocd Centrol District tor review and approval. A f)e rm1 t 'n' i 11 :.:,e reg ui r.:=d : or zny er:croachment unto Flood Control District right-of-I<ay, and a minimum of six (6) ~eeks process~ng ti~e should be allowed. ~; 5... ,;,~ ,.~~; Flood hazard r.1itl';;2-tions shall be 'constructed prior to issuan::-e of bUilding permi~s. 6 The Federal Emergency Manasecent Agen::-y must remove the the site from the lCD-year flood area d:signation prior to issuance of b~iIding permits. 7. In Compliance with Municipal Code Section 18.40.160 reCluirlng two means of in9ress and eg,ess in the high fire hazard zone. Frontage Road should be extended northwesterly to connect, 1.o'ith Cab~e CanYDn Road. The construction of ~hich shall be done by the for~ation ot an ~Ssessme~t district or 50~e other financial mechanism L^hibit A - P~~e 1 of 4 EXHIBIT B approved by tl,e Publ!c WO=~S Director. Conditio;>!! shall be ar-iHoved by the Public Works. Standard Terms and City's Director ot 8. Per Verdemont ~rea ?:an circulation standarcs On pp. 30-31. Frontage Road. a resi~er.t~al collector street, shall ha~e a right-of-~ay widt~ of 60 feet ~lth a 9aved roadway 40 feet in \.Iidth. Ten feet of landscaped parkway is needed adjacent to the freeway to provide a buffer in cO~pliance with the Verderoant .',rea Plan a;>d H"nicipal Code Section 18.44.080 (D). str~et lights shall be :reouired on Frontage Road per Section ;8.~4.0aQ (D). 9. The Califernia De9art~ant of Tre~~portat!on shall review and apDrove the final map ~rjer to recordatlon. 10. If the project is to be built in phases. tht Planning Department and the Department of Public Works'~i~ll review and approve the ['hasing prior to recordation# ~ ~ ha\'e e f"r:n' Consistent ....ith the '.'erderr.a;>t .;rea Pan. hou::s shall....JO:(.j( setback an average of 25 feet with the~H m setback not less than 20 feet. '$1"\ .<,7/1 ---- ~ r ro. t I;> compliance ~'ith tr.e Verjemont "'rea Plan. p. 98. dri'.eways en flag l:;)~s IT,"y net ex,:eed 150 feet in length ~~thout Fire De~a~t~Ent a~~rcval. r~~ narrow, street acce~s portion of flog lets shall not exceeJ 120 feet in length as measur~d on the ShQfter SlUe. 11. 12. 13. There sh<!lll be no d;:L:Ll~ :rQr.t~';J" lots per t~unicipal Code Section 18.~0.310. 14. Where side lot lines are,"on-~2rallel. 'the side lot lines shall diverge from the t.~"t cf the parcel to the rear. 15. In compliance \..o'lth VerdE:mont A.::-ea Plan POlicie:J. D. ,,"1, and ObjElcti'.'s Nc. l~r,j F::>li,=y :10.7 c" p. 79, and \lith the General Plan, entry treab"ent shall be prOVided for the intersections wf the local streets with rront<!l;e Road. 16. The proposed final map sl,all be subject to review and approval by the Southern California Edison Company. Any encroach~ents on the ~dison Company easement requires a consent agreement ....ith the Ediscn Company. 17. In accordance ",ith state standards and the Verdemont ".rea Plan, p. 149. Ioihich requires that noise levels at residential property lines not to exceed 65 CIIEL (Community Noise Equivelent Level), freeway noise mitigation shall be I'rc'Jided in t:he form ot a seven foot berm and sill: foot c'='''CrE:te block wall on or near the rear of all parcels o;;ned by !\\.I ^"sociates No, I abutting Frontage Road. !:>:r.lblt p, - F.",," 2 of 4 ~I 18. c."l\~ d5 '--0 19. 20. 21. -22. 23, EXHIBIT B hll parcels abutting ,.cntage Road shall be of sufficient size and shape to accommodate a 1,200 square foot house bet.een the ~ foot fro~t setback and tr.e inside slope of the seVen /~ . foot berm along tha rear prop~rty l~nes. Perimeter wall SurfaCes ~hall be broken up at regular intervals of 25 feet c.r less by off-sets. pilasters. or other decorativG materials in accordance with Verdemont Area Plan deSign standards, p. 100 No.5. ^ landscape assessment distric~ shall be formed to maintain landscaping abutt~ng F=on~age Road. The landscaping shall be installed a~d Ina1nt21ned ~Dr the f!~st ~.ear at the developer's exp~r.se. Landscape and i.rigution plans shall be approved by the Parks and Recreation Deportment prior to issuance of building permits in compliance with '.'erdemont hrea Pldn design standards. p. 116 Ho. 1. The minimum lot '.!ldth shall be ,,0 :feet in compliance \.lith ~:unicipal Cede Scctien 19.080.030 (.t.). Corner lots shall be 88 fer::t \.,fide in c:::llpliar1ce ...::it:, r<'Jr:l-.::ipal Codo Section 18.40.260. No bui1din3 per:nits shall be: iss'.ted f::r structures l,.Ji"thin the 3D-foot ~icg water ~ain e~sement. 24, 7h9 prcposed scbdivislon shall Corn~ly wi~h all Ve~deme~t Area ?lan require~~nts ~o= ~Evelopme~t within Foothill Fire Zone C. :5. :!:n compliance ~'.:' '~h City R~501\lt1'::':L U2-3;.JS ~nd Interim ?ol!cy :;0. 28. a liqtl~faction ~~port shell be submitted a~d rev~ewed by the City Geologist prior to recordation. ~6. Revised Planning prior to tract m2ps Department: recorda'tion. shall be ~nd thG reviCW'2d and app:-oved by t:he Depar~rnent 0: Public Works 27. 7ha daveloper !:hJl1 comply ,,',th all c.:;nditions of approval and standard o:eC;ui:-ernents o~ the Department of Publi.c Works. 28. Ths' developer $ha~l complY ~ith all canditions of approval and standard rec;uire"'ents -af the Fire Department. 29. The developer and standard Department. shall C:Or.lply \-dth all requirements at the conditions of approval P arks and Recre a t ion ~>:...i::it A - Page] of 4 EXHIBIT B 30. The developer shall prov!ci<;, fer adequate Fire Flow as computed by the Fire Prevention Eureau. Fire Flow shall be based an square footage. construction features and exposure information as supplied by ~he developer and may be taken from two hydrants. Exhibit .', - Page 4 "t ~ ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): ~ Item # R ~;} B ,Resolution # Vote: Ayesl2J Y,5 '1-(;; Nays '& Abstain 6-- ') ".J Change to motion to amend original documents 0 Companion Resolutions Null/Void After: days / Resolution # On Attachments: 0 COC~()o(... - :3 'J.--' Absent ,-=<; tt- 1 PUBLISH 0 POST 0 RECORD W/COUNTY 0 By: Note on Resolution of attachment stored separately: 0 0.. s~, '" M.yoc, ~~ Date of Mayor's Signature: ' 10 Date of Clerk/CDC Signature: 1 'j { 0 (; I I Date Memo/Letter Sent for Signature: 1" Reminder Letter Sent: '7 J:2X/(;f7 Date Returned: . , 2,d Reminder Letter Sent: Reso. Log Updated: ~ Seal Impressed: 0 Reso. # on Staff Report J8l 11.;2-1/07 Not Returned: 0 I I 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 0 City Administrator 0 Facilities 0 City Attorney 0 Finance 0 Code Compliance 0 Fire Department 0 Development Services 0 Human Resources 0 Others: Notes: Yes No By_ Yes No By_ Yes No By_ Yes No By_ Yes No By_ Information Services 0 Parks & Recreation 0 Police Department 0 Public Services 0 Water Department 0 Ready to File: _ Dale: Revised 12/18/03 ** FOR OFFICE USE ONLY - NOT A PUBLIC DOCUMENT ** RESOLUTION AGENDA ITEM TRACKING FORM Meeting Date (Date Adopted): Vote: Ayes d-- Item # K,)l A ~ Abstain Change to motion to amend original documents 0 Null/Void After: days / Resolution # On Attachments: 0 PUBLISH 0 POST 0 Companion Resolutions Resolution # .lo06- :L 13 Absent 3 "I- I h , RECORD W/COUNTY 0 Note on Resolution of attachment stored separately: 0 By: Date Sent to Mayor: Date of Mayor's Signature: Date ofClerk/CDC Signature: Reso. Log Updated: 129 Seal Impressed: 0 Reso. # on Staff Report 2iI. Date Memo/Letter Sent for Signature: AJ A Date Returned: I" Reminder Letter Sent: 2nd Reminder Letter Sent: 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 City Administrator City Attorney Code Compliance Development Services Others: o ~ o o EDA o o ~ o o Not Returned: 0 Yes N't By_ Yes No By_ Yes No By_ Yes No.,+- By_ Yes No A- By_ Information Services Parks & Recreation Police Department Public Services Water Department o o o o o Facilities Finance Fire Department Human Resources Notes: Ready to File: _ Revised 12/18/03 Date: CITY OF SAN BERNARDINO Interoffice Memorandum CITY CLERK'S OFFICE Records and Information Management (RIM) Program DATE: July 28, 2006 YOUR COpy TO: Wasana Chantha, Secretary Economic Development Agency FROM: Sandra Medina, Assistant to the City Clerk RE: Transmitting Documents for Signature - Resolution No. CDC/2006-32 At the Mayor and Common Council meeting of July 24, 2006, the City of San Bernardino adopted Resolution No. CDC/2006-32 - Resolution (1) approving the 2006 Disposition and Development Agreement ("DDA '') by and between the Redevelopment Agency of the City of San Bernardino ("Agency'') and Century Crowell Communities, LP, a California Limited Partnership ("Developer'') and authorizing the Executive Director of the Agency to execute said DDA relating to the sale and development of Agency property located north of Little League Drive, east of 1-215 Freeway - approximately 79 acres in the City of San Bernardino ("Property") and (2) making certain findings thereto related to the development of the Property and adopting a Mitigated Negative Declaration related to said DDA. Attached are one (1) original agreement and two (2) duplicate original Disposition and Development Agreements. Please obtain signatures in the appropriate locations and return the original agreement as soon as possible, to Dodie Otterbein, Records Management Coordinator, City Clerk's Office. Please retain one duplicate agreement for your records and forward one to the other party. If you have any questions, please do not hesitate to contact Dodie Otterbein at ex!. 3215. Thank you, ~ ,~ Sandra Medina o Assistant to the City Clerk Signe : Date: /' --,;) f - JOt!? Please sign and return "~C'-I\ ,_.. 0''['' 01 r~t t JtU--UI 10 2007 J,'J! 2[; {jtf;b~~an Bernardino ECONOMIC DEVELOPMENT AGENCY Redevelopment. Community Development. Housing. Business: Recruitment. Retention, Revitalization. Main Street. Inc. .. January 24, 2007 Century Crowell Communities, LP Attn.: John W. Pavelak, President 1535 South "D" Street, Suite 200 San Bernardino, California 92408 Re: Disposition and Development Agreement by and between the Redevelopment Agency of the City of San Bernardino and Century Crowell Communities, LP Dear Mr. Pavelak: Enclosed for your records are two (2) fully executed Agreements as referenced above that was approved by the Community Development Commission of the City of San Bernardino on July 24, 2006 (Resolution CDC/2006-32). Should you have any questions regarding this matter, please feel free to call me at (909) 663- 114\ , , Wasana A. Chantha Executive Secretary Enclosures: Disposition and Development Agreement (2) cc: Barbara Lindseth (with Original Executed Agreement) Margaret Fedor, City Clerk (with Original Executed Agreement) Colin Strange (with Copy of Original Executed Agreement) Timothy 1. Sabo (with Copy of Original Executed Agreement) Kevin K. Randolph (with Copy of Original Executed Agreement) File (with Copy of Original Executed Agreement) 201 North E Street, Suite 301 . San Bernardino, California 92401-1507. (909) 663-1044 . Fax (909) 888-9413 ~sanbemardino~eda.org.