HomeMy WebLinkAbout727 - Ordinances ORDINANCE NO. 727
AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA
CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT
DRC2003-00751, A DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF RANCHO CUCAMONGA AND HENDERSON
CREEK PROPERTIES LLC., FOR THE PURPOSE OF
DEVELOPING AN APPROXIMATE 65.3 ACRE SITE WITH UP
TO 123 RESIDENTIAL LOTS, FOR PROPERTIES GENERALLY
LOCATED AT THE NORTHERLY END OF WARDMAN
BULLOCK ROAD AT THE INTERSECTION OF COLONBERO
ROAD - APN: 0225-084-04, 0226-081-09 AND 10, AND 0226-
082-29.
A. RECITALS.
1. California Government Code Section 65864 provides, in pertinent part, as
follows:
"The Legislature finds and declares that:
(a) The lack of certainty in the approval of development projects can result in
a waste of resources, escalate the cost of housing and other development
to the consumer, and discourage investment in and commitment to
comprehensive planning, which would make maximum efficient utilization
of resources at the least economic cost to the public.
(b) Assurance to the applicant for a development project that upon approval
of the project, the applicant may proceed with the project in accordance
with existing policies, rules and regulations, and subject to conditions of
approval, will strengthen the public planning process, encourage private
participation in comprehensive planning, and reduce the economic costs
of development."
2. California Government Code Section 65865 provides, in pertinent part, as
follows:
"(a) Any city...may enter into a development agreement with any person
having a legal or equitable interest in real property for the development of the
property as provided in this article..."
3. California Government Code Section 65865.2 provides, in part, as follows:
"A development agreement shall specify the duration of the agreement, the
permitted uses of the property, the density or intensity of use, the maximum
height and size of proposed buildings, and provisions for reservation or
dedication of land for public purposes. The development agreement may
include conditions, terms, restrictions, and requirements for subsequent
discretionary actions, provided that such conditions, terms, restrictions, and
requirements for discretionary actions shall not prevent development of the
land for the uses and to the density or intensity of development set forth in
the agreement..."
Ordinance No. 727
Page 2 of 41
4. Attached to this Ordinance, marked as Exhibit "A" and incorporated herein by
this reference, is proposed Development Agreement DRC2003-00751,
concerning that property generally located at the northerly end of Wardman
Bullock Road at the intersection with Colonbero Road and legally described
in the attached Development Agreement. Hereinafter in this Ordinance, the
Development Agreement attached hereto as Exhibit "A" is referred to as the
"Development Agreement."
$. On May 12, 2004, the Planning Commission of the City of Rancho
Cucamonga held a duly noticed public hearing concerning the Development
Agreement and concluded said hearing on that date and recommended
approval through adoption of its Resolution No. 04-61.
6. On June 2, 2004 and continued to June 16, 2004, the City Council of the City
of Rancho Cucamonga conducted a duly noticed public hearing regarding the
Development Agreement.
7. All legal prerequisites prior to the adoption of this Ordinance have occurred.
B. ORDINANCE.
NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does
hereby find, determine, and ordain as follows:
SECTION 1: This Council hereby specifically finds that all of the facts set forth
in the Recitals, Part A, of this Ordinance are true and correct.
SECTION 2: Based upon the facts and information contained in the record of
this project, the City Council makes the following findings and
statements, and takes the following actions, pursuant to the
California Environmental Quality Act ("CEQA") (Public Resources
Code Section 21000 et. seq.):
a. Henderson Creek Properties, LLC (the "Applicant") seeks approval of
a series of actions related to the annexation of land from
unincorporated San Bernardino County into the City of Rancho
Cucamonga, the approval of a General Plan Amendment, Etiwanda
North Specific Plan Amendment, Tentative Tract Map SUBTT16324,
and associated Development Agreement. The actions also include
the development of 123 single-family housing units on approximately
65.3 acres and designations of flood control, utility corridor, and open
space on approximately 25.1 acres of land. Another 10 acres is also
proposed for annexation and is currently used for a utility easement
and for flood control purposes. The total area to be annexed is
approximately 100.4 acres. The density of the development is
approximately 1.9 dwelling units per gross acre. These series of
actions and approvals are hereinafter defined in this Ordinance as the
"Project."
Ordinance No. 727
Page 3 of 41
b. The Applicant has submitted the following applications relating to the
Project: Annexation DRC2003-00753, General Plan Land Use
Amendment DRC2003-00749, Etiwanda North Specific Plan
Amendment DRC2003-00750, Tentative Tract Map SUBTT16324,
and Development Agreement DRC2003-00751 (collectively the
"Project Applications"). These Project Applications, as well as the
appeal of the Planning Commission's approval of Tentative Tract Map
SUBTT16324, constitute the matters involving the Project, which are
submitted to the City Council for decision and action.
¢. The City of Rancho Cucamonga, acting as the lead agency, prepared
the Draft Environmental Impact Report ("EIR") for the Project,
including certain technical appendices (the "Appendices") to the Draft
EIR (State Clearinghouse No. 2003111057). The Draft EIR was
circulated for a 45-day public review and comment period from
February 20, 2004, through April 5, 2004. Comments were received
during that period and written responses were prepared and sent to all
persons and entities submitting comments. Those comments and the
responses thereto have been included in the Final EIR, as well as the
revisions to the Draft EIR and a copy of the Draft Development
Agreement (Appendix K). Those documents, together with the Draft
EIR and Appendices, comprise the Final EIR.
d. The City Council finds that the Final EIR was completed pursuant to
CEQA, and the State Guidelines for Implementation of CEQA, 14
California Code of Regulations, Section 15000, et. seq. ("the
Guidelines"). By Resolution No. 04-60, the City Council has certified
the Final EIR as being in compliance with the requirements of CEQA.
e. The City Council finds that the Final EIR was presented to the City
Council and that the City Council reviewed and considered the
information in the Final EIR and has reached its own conclusions with
respect to the Project and as to whether and how to approve the
various components of the project approvals.
f. The City Council finds that the Final EIR represents the independent
judgment of the City Council of the City of Rancho Cucamonga and
adequately addresses the impacts of the Project and imposes
appropriate mitigation measures for the Project.
g. Public Resources Code Section 21081 provides that no public agency
shall approve or carry out a project for which an environmental impact
report has been completed which identifies one or more significant
environmental effects unless the public agency makes one or more of
the following findings with respect to each significant effect:
i. Changes or alterations have been required in, or incorporated into
the project, which mitigate or avoid the significant environmental
effects thereof as identified in the completed environmental impact
report.
Ordinance No. 727
Page 4 of 41
ii. Such changes or alterations are within the responsibility and
jurisdiction of another public agency and such changes have been
adopted by such agency or can and should be adopted by such
other agency.
iii. Specific economic, social or other considerations make infeasible
the mitigation measures or project alternatives identified in the
environmental impact report.
h. The City Council finds, based upon the Initial Study, the Final EIR,
public comments, public agency comments, and the entire record
before it, that the Project may create significant impacts in the areas
of Land Use and Planning, Traffic and Circulation, Noise, Geology
and Soils, Hydrology and Water Quality, Public Health and Safety,
Biological Resources, Air Quality, and Public Services. However,
changes or alterations have been required in, or incorporated into the
Project, which will mitigate and in some cases, avoid the significant
impacts. The specific changes and alterations required, and a brief
explanation of the rationale for the findings with regard to each
impact, are contained in the "CEQA Findings" for the Project (Exhibit
"F" to the June 16, 2004 City Council Staff Report) and are
incorporated herein by reference. In addition to the rationale and
explanation contained in the "CEQA Findings", the City Council makes
the following additional findings regarding the impacts of the Project
on the resources and services listed in this paragraph:
i. Land Use and Plannin.q. The Etiwanda North Specific Plan
requires a minimum lot size of 20,000 square feet, and the Final
EIR indicates that the Project would be inconsistent with the
Etiwanda North Specific Plan, because some of the proposed
residential lots would be less than 20,000 square feet. With the
approval of the proposed Specific Plan Amendment that will
change the land use district from Very Low Residential (0.1 - 2
dwelling units per acre) to Low Residential (2 - 4 dwelling units
per acre) for the 65.3 acre area designated for residential
development, the Project would then be consistent with the
Etiwanda North Specific Plan. As a result, the Project site may be
developed with lots less than 20,000 square feet. In addition, in
order to address the reduction in lot sizes and the likely effect of
lots averaging 18,000 square feet, with a minimum size of 14,025
square feet, on the ability of those property owners to own and
maintain horses on those lots, a mitigation measure is being
imposed (Mitigation Measure LU-2) to require the developer to
pay an in-lieu fee to the City for the development of an equestrian
center that would serve residents in the area desiring to own and
maintain horses. The Etiwanda North Specific Plan also requires
a particular design and development theme that is consistent with
Ordinance No. 727
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the character of Old Etiwanda by having access to trails,
provisions for views of the mountains and complying with certain
design requirements for landscaping, walls, fencing, lighting and
the community's entry points. Mitigation Measure LU-1 is being
imposed that requires the project developer to submit a landscape
plan that is consistent with the City's neighborhood Theme Plan
as contained in the Etiwanda North Specific Plan. Based on these
mitigation measures, the City Council finds that any inconsistency
of the Project with the Etiwanda North Specific Plan will be
mitigated to a level of less than significant.
ii. Traffic and Circulation. The Final EIR indicates that the
proposed Project will increase vehicle trips and impact the level of
service along arterial streets and intersections. Specifically, the
Final EIR found that Project traffic, together with other anticipated
traffic, will likely cause traffic flow to be deficient by experiencing a
Level of Service (LOS) of "E" or "F" at the intersections of
Wardman-Bullock Road (NS) at Wilson Avenue (EW) and at
Etiwanda Avenue (NS) at Banyan Street (EW). Mitigation
Measures are imposed to require the developer to construct and
widen Wardman-Bullock Road along the Project frontage
(Mitigation Measure TC-3), to install a traffic signal at Etiwanda
Avenue (NS) and Banyan Street intersection (Mitigation Measure
TC-5), to contribute developer fees for other traffic improvements
(Mitigation Measures TC-1 and TC-5), and to modify signing and
stripping of certain roadways and intersections (Mitigation
Measures TC-2 and TC-4). The City's "City-Wide System Fees for
Transportation Development" provides for the payment of fees at
the time building permits are issued based on a formula adopted
by the City Council by resolution. That formula provides for the
payment of a fee per dwelling unit of approximately $1,710.03 and
a credit against those fees for certain qualifying traffic
improvements that mitigate the traffic impacts of the Project. The
City is required to use traffic impact fees to fund City-wide and
regional roadway and traffic improvements, and as a
consequence, the payment of those fees by the project developer
will contribute to the mitigation of the Project's impacts to traffic
and circulation. Based on these mitigation measures, the City
Council finds that traffic at the study intersections will be reduced
so that those intersections operate at a LOS "D," and that the
impacts of the Project on traffic and circulation will be mitigated to
a level of less than significant.
iii. Noise. The Final EIR identifies the likelihood of short-term
impacts on ambient noise levels during construction of the Project.
The primary source of construction noise is heavy equipment
associated with construction activities, such as trucks, graders,
Ordinance No. 727
Page 6 of 41
bulldozers, concrete mixers, cranes and portable generators with
high levels of sound generation. Earthmoving equipment is
anticipated to create noise ranging between 75 to 90 dB(A) at 50
feet from the source. A mitigation measure has been imposed
that will require the construction contractors to adhere to the City's
Development Code for hours of construction activity - 6:30 a.m. to
8:00 p.m., Monday through Saturday, with no construction to take
place on Sundays or holidays (Mitigation Measure N-l). Based on
this mitigation measure, the City Council finds that the shore term
noise impacts from the Project will be reduced to less than
significant levels. The Final EIR also identified that noise levels at
the facades of homes nearest the Project exit at WardmamBullock
Road would experience noise near 60 dB CNEL due to vehicular
traffic. The Final EIR states that if the property owners of the
homes fronting on Wardman-Bullock Road can close their
windows and still obtain adequate ventilation, then the goal of
reducing the interior noise to a 45 dB(A) CNEL interior noise level
would be achieved. A mitigation measure will be imposed to
require the developer to install air conditioning units for the
residences that front along Wardman-Bullock Road so as to allow
window closure during warm days so as to achieve a less than
significant interior noise level for those homes with the windows
closed (Mitigation Measure N-2). Based on this mitigation
measure, the City Council finds that the potential noise impacts of
the Project on current and future residents will be mitigated to a
less than significant level.
iv. GeoloRy and Soils. The Final EIR identifies that development of
the Project will expose people and structures to risks associated
with seismic ground shaking due to regional and local faults
located in the area. Mitigation measures are imposed which
require the developer to ensure that all grading plans and grading
work are done in compliance with the geotechnical report for the
Project so that soil and slopes are properly compacted and
grading work achieves all seismic requirements (Mitigation
Measure GS-1), that the developer shall submit building plans
which incorporate the recommendations of the geotechnical report
for preliminary foundation work, utility trenching, and concrete
slabs (Mitigation Measure GS-2), and that all buildings and
structures are built to Uniform Building Code and/or Structural
Engineers Association of California standards for seismic safety
(Mitigation Measure GS-3). Based on these mitigation
measures, the City Council finds that the effects of seismic
shaking on persons and structures will be mitigated to a level that
is less than significant.
Ordinance No. 727
Page 7 of 41
v. Hvdroloav and Water Quality. The Final EIR identifies that
during storm events, construction activities (particularly vegetation
removal, grading and excavation), could affect the amounts of
sediments and suspended solid material leaving the site such that
water quality downstream of the site could be affected to a level
that was potentially significant. Vegetation removal and grading
would expose the soil to erosion by wind and rain, and rainfall
could carry more sediment off the disturbed areas and adversely
affect water quality downstream. In addition, during earthwork
and construction activities, pollutants that may be discharged in
stormwater include vehicle fluids such as oil, grease and coolants,
asphaltic emulsions associated with asphalt-concrete paving,
paints and solvents, wood products, and metal and metal plated
products. In accordance with the State of California's
implementation of the National Pollution Discharge Elimination
System (NPDES) permit requirements and the Storm Water
Pollution Prevention Plan (SWPPP) requirements imposed by the
Regional Water Quality Control Board (RWQCB), the Project
developer will be required to include Best Management Practices
(BMPs) to prevent construction of the Project from polluting
surface waters. Compliance with these permitting requirements
will require the Project developer and construction crews to
comply with a variety of measures, such as limiting clearing and
grubbing areas to the limits of the active construction area, using
hay bales and sand bags to control erosion during the rainy
season, using enclosed storage sheds where possible, utilizing
hazardous materials in a manner that avoids contact with the
ground, avoiding the application of certain materials during
periods of rainfall, washing of equipment or vehicles in a
designated place where a sump can be located to collect wash
water for proper disposal, and servicing equipment and vehicles
off-site. A mitigation measure is imposed to require compliance
with these permitting requirements and BMPs (Mitigation Measure
HWQ-1). The City Council finds that with the imposition of this
mitigation measure and after implementation of BMPs set forth in
the SWPPP, potentially significant impacts on water quality from
construction activity will be mitigated to a level of less than
significant.
vi. Public Health and Safety, The Final EIR identifies that the
frequency of high winds will expose structures and residents to
potential damage from extreme wind conditions. In addition,
wildfires on adjacent lands, including National Forest land and
undeveloped properties, could threaten residential development
on the Project site. Specifically, the Final EIR indicates that Santa
Aha winds along the front of the mountains can reach hurricane
force, with winds in the area of the Project detected at reaching 80
Ordinance No. 727
Page 8 of 41
to 100 miles per hour. Damage to roofs, fences, windows and
landscaping is possible in these types of conditions. Three
mitigation measures are imposed to mitigate the impacts of wind
hazard to a less than significant level. Those measures include
requirements to utilize optimum building materiats and
construction techniques as required by the Uniform Building Code,
to require disclosure of the potential for high winds in sa~es
documents to prospective homebuyers, and to comply with other
mitigation measures for control of particulate matter emissions
during grading and construction (Mitigation Measures HS-1, HS-2,
HS-3). Compliance with the provisions of the Uniform Building
Code has been demonstrated to result in structures that are
capable of withstanding winds projected for the Project area
without serious damage. With respect to the impacts created by
wildfires on adjacent lands, the City Council is particularly familiar
with these risks after the City and surrounding areas recently
experienced the Grand Prix fire in October 2003. The City Council
also understands that the addition of persons into an area of
wildland vegetation increases the number of ignitions (risk), the
growth of brush after a fire increases the intensity of new fires in
the area (hazard), and the addition of homes and amenities into
the same area (value) creates an increased need for fire
protection and fuel modification. Design features have already
been incorporated into the Project to ensure vegetation areas to
the north are separated from residentia~ structures with a trail, a
wall and a riprap drainage channe~ so as to provide approximately
100 feet of distance between chaparral vegetation and the homes.
All homes will also be constructed with Class A roofs. Along the
western boundary of the site where the wildfire threat is moderate,
a six-foot masonry wall and "firewise" landscaping between native
vegetation and the homes are to be required. A comprehensive
mitigation measure (Mitigation Measure HS-4) requires a detailed
landscape plan/fuel modification plan to contain requirements for
"firewise" vegetation in specific areas, irrigation plans and specific
standards applicable to certain areas of the Project site. In
addition, Mitigation Measure HS-5 requires the installation of
residential fire sprinklers as a component of the construction. The
City Council finds that with the combination of appropriate
landscaping, residential fire sprinklers, the introduction of certain
new paved surfaces where none currently exist, and
implementation of the Fuel Modification Plan will effectively reduce
movement of potential fire into the Project area and thereby
mitigate impacts to a level of tess than significant.
vii. Biolo_qical Resources. The proposed Project would result in
development of a 65.3 acre area of the site, and the Final EIR
indicates that, prior to the Grand Prix fire of October 2003, that
Ordinance No. 727
Page 9 of 41
area was previously covered with upland sage scrub, disturbed
annual grassland and a small area of fiat-top buckwheat scrub.
Specifically, prior to the Grand Prix fire, the portion of the site
proposed for development had approximately 1.5 acres of
disturbed annual grassland, 4.2 acres of disturbed annual
grassland dominated by deerweed, 53.5 acres of Upland sage
scrub dominated by white sage, and 4.5 acres of fiat-top
buckwheat scrub. The impacts on the annual grassland areas is
not considered significant because of the relatively small area
impacted (approximately 1/3 of the total disturbed annual
grassland on the site) and because those areas had experienced
substantial disturbance from prior weed control measures, and the
construction of power line maintenance roads and other roads that
cross the property. With respect to upland sage scrub, most of
that area was dominated by white sage, which is not considered to
be sensitive habitat by the resource agencies that regulate
biological resources. However, the City Council recognizes that
the loss of this plant community for wildlife habitat is important
when considering cumulative impacts on this resource. With
respect to the flat-top buckwheat scrub, this is a common species
and an indicator of prior disturbance to the land. The Final EIR
indicates that no sensitive species of fiat-top buckwheat scrub
were found on the site and therefore no impacts were expected to
occur. The Final EIR recognizes that much of the vegetation
previously found on the site would likely grow back after the fire if
no development took place. However, the Biological Assessment
not only found no substantial evidence of sensitive plant or wildlife
species on the site, but it also found that due to the area already
being disturbed by dirt roads for power line maintenance, previous
construction activity, commercial harvesting of white sage, and
flood control improvements and activities, development of the site
would not have a significant impact on biological resources.
Notwithstanding the foregoing, the Project site is within the
boundaries of the North Etiwanda Open Space and Habitat
Preservation Program (NEOSHPP), as adopted by the County of
San Bernardino. To implement the goals and purposes of that
Program, a mitigation measure has been imposed to require the
Project developer to acquire and convey to the County, 58 acres
of land within or near the NEOSHPP area that support alluvial fan
sage scrub and/or upland sage scrub (Mitigation Measure BIO-l).
This 58 acre area is intended to accomplish a "one to one"
mitigation in acreage for the loss of the 53.5 acres of Upland sage
scrub and to mitigate the potential loss of habitat for sensitive
plants and animal species, and the loss of raptor foraging land.
As required by the mitigation measure, the off-site mitigation land
shall be equal to or greater in habitat value than that of the Project
site. The City Council finds that the conveyance into the
NEOSHPP of 58 acres of land by the Project developer would
mitigate this impact to a level that is less than significant.
Ordinance No. 727
Page 10 of 41
viii. Air Quality. The Final EIR identifies that the Project may create
significant and unavoidable impacts to Air Quality. Specifically,
the Final EIR identifies that emissions from construction related
activities are likely to exceed the threshold of significance
specified by the South Coast Air Quality Management District
(SCAQMD). These impacts are considered to be short-term (tess
than one year) and temporary and can cause nuisance impacts to
adjacent land uses in the local area by way of fugitive dust. One
cause of these short-term impacts is blowing dust resulting from
the grading of the site. In addition, the use of diesel engine
equipment during grading and construction along with worker trips
is anticipated to create levels of nitrous oxides (NOx) that are also
above the SCAQMD's thresholds of significance. Similarly,
construction-related emissions, particularly from architectural
coatings (painting) and off-road diesel equipment, are anticipated
to create significant levels of reactive organic gases (ROG) and
nitrous oxides (NOx) that will exceed SCAQMD thresholds of
significance and result in significant short-term air pollution
impacts. A comprehensive mitigation measure is imposed on the
Project (Mitigation Measure AQ-1) which will require various dust
control measures, emission control measures and off-site actions.
Included in those measures are requirements to limit the
simultaneous disturbance area to as small an area as is possible,
terminate soil disturbance and accelerate dust control measures
when winds exceed 25 miles per hour, stabilize disturbed areas if
construction is delayed, require 90-day Iow-NOx tune-ups for off-
road equipment, limit idling to 10 minutes for trucks and heavy
equipment, encourage carpooling for construction workers, limit
lane closures to off-peak travel periods, park construction vehicles
off traveled roadways, wet down or cover dirt hauled off-site, wash
or sweep access points daily and encourage receipt of
construction materials during non-peak traffic hours. The City
Council finds that with implementation of the recommended
measures, construction emissions will be reduced, and that the
Project's contribution to regional emission of criteria pollutants will
be minimized. However, the City Council finds that despite the
imposition of all these comprehensive mitigation requirements,
construct[on emissions (building phase) will exceed SCAQMD's
thresholds for ROG and NOx, and therefore, would remain
significant after mitigation.
ix. Cumulative Impacts - Air Quality, Noise and Public Services.
The Final EIR provides that this Project, together with the
construction of development projects in the vicinity, would likely
create cumulative short-term impacts to air quality during
construction. This Project would also create a significant
cumulative impact to regional air quality because the Project
Ordinance No. 727
Page 11 of 41
would add incremental pollutants to the South Coast Air Basin in
the form of additional vehicle emissions. With respect to noise,
the Final EIR indicates that the Project will create short-term
cumulative construction noise impacts and long-term cumulative
noise impacts due to increased vehicle trips. With respect to
public services (schools), state law (Government Code Section
65995 (h)) provides for the payment of developer fees and deems
such payment to be full and complete mitigation of school impacts.
Consequently, as a matter of law, the long-term cumulative
impacts to schools from this and other projects are deemed to be
fully mitigated by the payment of developer fees and the City is
precluded, by law, from imposing additional mitigation to address
these potential impacts. The City Council finds that noise and air
quality impacts associated with increased vehicle trips would
remain significant when combined with existing and anticipated
construction projects in the vicinity of the Project.
i. The City Council finds, based on the Final EIR, that after
implementation of the proposed mitigation measures, the following
impacts associated with the proposed Project would remain
significant: air quality (short-term impacts and short and long-term
cumulative impacts) and noise (short-term and long-term cumulative
impacts).
j. The Final EIR describes a range of alternatives to the Project that
might fulfill basic objectives of the Project. These alternatives include
the required "No Project-No Development" alternative, and the
"Development Under the Existing Land Use Designation Alternative."
Other alternatives that were considered and rejected included the
alternative location alternative and the alternative land use alternative.
As set forth below, the alternatives identified in the Final EIR are not
feasible because they would not achieve the basic objectives of the
Project or would do so only to a much smaller degree and, therefore,
leave unaddressed the significant economic, infrastructure, and
General Plan goals that the Project is intended to accomplish, and are
thus infeasible due to social and economic considerations, and/or they
are infeasible because they would not eliminate the adverse
environmental impacts of the proposed Project. Accordingly, each of
the alternatives is infeasible. In making this finding, the City Council
determines as follows:
i) The objectives of the Project are:
a) To be consistent with, and implement, the established policies
and goals of the City of Rancho Cucamonga General Plan,
Etiwanda North Specific Plan, City Development Code, and all
other City development guidelines;
b) To annex the 90.4 acre Project site and adjacent 10 acre utility
easement into the City of Rancho Cucamonga;
Ordinance No. 727
Page 12of41
c) To Integrate the Project with the character of the surrounding
neighborhoods and establish a development that results in
logical, coordinated growth;
d} To establish a Project-wide circulation system that meets
regional and local transportation needs and accommodates
both vehicles and pedestrians;
e) To provide a system of public/community facilities, including
trails, open space areas, and landscaping to support the
residents of the Project and surrounding area in an efficient
and timely manner;
t') To provide backbone public infrastructure (i.e., roads, utilities)
to serve Project residents and the surrounding community;
g) To minimize impacts to, and generate revenues in excess of
costs for various public service agencies; and
h) To provide quality housing opportunities compatible with
existing and planned development that responds to market
demands.
ii) The "No Project-No Development" Alternative assumes that no
new land uses would be constructed on the Project site and that
the site would remain vacant and undeveloped. Although this
alternative is environmentally superior to the proposed Project, it
would not meet the Project objectives. Specifically, it would not
meet the Project's objective to provide quality housing that would
be compatible with existing and planned development for the area,
would not provide a system of public/community facilities,
including trails, open space areas, and would not provide
landscaping for Project residents and surrounding area residents.
Furthermore, as the subject property is under private ownership,
the elimination of future development within an area previously
approved for residential development would not be legally or
financially feasible. Therefore this alternative is rejected.
iii) The "Development Under the Existing Land Use Designation
Alternative" assumes that the Project site would be developed
under the current City of Rancho Cucamonga General Plan
designation (Very Low Residential). Under this designation, and
assuming that the area disturbed by grading is equal to that of the
proposed Project, the minimum lot sizes would be 20,000 square
feet and the number of lots that could be developed would be
approximately 90 rather than the 123 as currently proposed. This
reduction in development by approximately 33 dwelling units
would result in lower traffic, air quality, and noise impacts than the
Ordinance No. 727
Page 13 of 41
proposed Project, but would not reduce to less than significance
the short-term impacts on air quality from construction-related
emissions, cumulative long-term impacts on air quality from
Project emissions and cumulative short and long-term noise
impacts. In addition, this alternative would not meet the Project
objectives to provide quality housing that would be compatible
with existing and planned development for the area, would not
provide a system of public/community facilities, including trails,
open space areas, and would not provide landscaping for Project
residents and surrounding area residents.
k. Mitigation measures described in the Mitigation Monitoring Program
will avoid or substantially lessen the potentially significant
environmental effects of the Project. Further, the environmental,
physical, social, economic and other benefits of the Project, as set
forth in this section and in the "CEQA Findings" for the Project (Exhibit
"F" to the June 16, 2004 City Council Staff Report), which is
incorporated herein by this reference, outweigh any unavoidable,
significant, adverse impacts that may occur as a result of the Project,
including short-term impacts on air quality from construction-related
emissions and cumulative impacts to air quality and noise. Therefore,
due to overriding benefits of the Project and because the alternatives
identified in the Final EIR are not feasible, as discussed in paragraph j
above, the City Council hereby finds that any unavoidable impacts of
the Project, including the mitigated but unavoidable impacts from
short-term impacts on air quality from construction-related emissions,
and cumulative air quality and noise are acceptable based on the
findings contained herein and in the "CEQA Findings" for the Project.
This determination shall constitute a statement of overriding
considerations within the meaning of CEQA and is based on any one
of the following environmental and other benefits of the Project
identified in the Final EIR and the record of the City Council's
proceedings:
i) Provision for the use of land consistent with the established
policies and goals of the City of Rancho Cucamonga General
Plan, Etiwanda North Specific Plan, City Development Code, and
all other City Development guidelines;
ii) Annexation of the 90.4-acre Project site and adjacent 10.0-acre
utility easement into the City of Rancho Cucamonga;
iii) Integration of the Project with the character of the surrounding
neighborhoods and establishment of a development that results in
logical, coordinated growth;
iv) Establishment of a Project-wide circulation system that meets
regional and local transportation needs and accommodates both
vehicles and pedestrians;
Ordinance No. 727
Page 14of41
v) Provision of a system of public/community facilities, including
trails, open space areas, and landscaping to support the residents
of the Project and surrounding area in an efficient and timely
manner;
vi) Provision of backbone public infrastructure (i.e., roads, utilities) to
serve Project residents and the surrounding community;
vii) Minimization of impacts to, and generation of revenues in excess
of costs for, various public service agencies; and
viii) Provision of quality housing opportunities compatible with existing
and planned development that responds to market demands.
ix) The addition of housing units in accomplishment of the City's
Housing Element Goals and fulfillment of regional housing needs.
x) City control over the developing lands on the City's perimeter.
xi) Advancement of the regional trail system by the links to be
completed by the Project.
I. The mitigation measures in the Final EIR that correspond to the
environmental impacts which may result from the Project are hereby
adopted and made a condition of approval of, or incorporated into, the
Project. The City Council also hereby adopts the "Mitigation
Monitoring Plan" attached as Exhibit "G" to the June 16, 2004 City
Council Staff Report for this Project. The Mitigation Monitoring Plan
will be used to monitor compliance with the mitigation measures and
conditions that have been adopted or made a condition of Project
approval as set fodh in this Section of this Ordinance and in the
Mitigation Monitoring Plan.
m. Pursuant to provisions of the California Public Resources Code
Section 21089(b), the findings contained in this Ordinance shall not be
operative, vested or final until all required filing fees assessed
pursuant to California Fish and Game Code Section 711.4, together
with any required handling charges, are paid to the County Clerk of
the County of San Bernardino.
SECTION 3: The City Council finds that the Development Agreement does
comply with the requirements of California Government Code
Sections 65865 through 65869.5 in that the Development
Agreement does specify in detail and contains the following:
Ordinance No. 727
Page 15of41
a. Provisions are included in Section 3(A) of the Development
Agreement requiring periodic review of the Agreement at least every
twelve months, at which time the applicant shalJ be required to
demonstrate good faith compliance with the terms of the Agreement
(California Government Code Section 65865.1).
b. The duration of the Development Agreement is specified in Section
I(B) of the Agreement as being for ten (10) years (Government Code
Section 65865.2).
c. The permitted uses of the property, the density and intensity of use,
the maximum height and size of the proposed structures, and other
required provisions are referred to in Section 2(A) of the Development
Agreement (Government Code Section 65865.2).
d. The Development Agreement includes conditions, terms, restrictions
and requirements for subsequent discretionary actions in Section 2(B)
of the Agreement (Government Code Section 65865.2).
e. The Development Agreement includes terms and conditions ~n
Section 2 that require the developer to improve portions of public
streets around the perimeter of the property and provide for and
improve streets inside the development (Government Code Section
65865.2).
f. The Development Agreement specifies that the Project is to be
constructed in coordination with the construction of certain public
infrastructure improvements as specified in Section 2 of the
Agreement. (Government Code Section 65865.2).
SECTION 4: Based upon substantial evidence presented during the above-
referenced public hearing on June 2, 2004 and June 16, 2004,
including written and oral staff reports, together with public
testimony, this Council hereby specifically finds that upon the
adoption of General Plan Amendment DRC2003-00749, the
Development Agreement will provide for development which is
consistent with the Rancho Cucamonga General Plan. The City
Council bases its findings of consistency with the General Plan on
the fact that the project entitlements specified in the Development
Agreement provide for the extension of the Iow density image of
Old Etiwanda into the area as provided in General Plan Policy
2.4.4.5, the fact that the proposed uses set forth in this
Development Agreement are compatible with the character of
existing development in the vicinity, and that the Development
Agreement is consistent with the General Plan's intent to keep
substantial portions of the Etiwanda North Specific Plan area as
open space.
Ordinance No. 727
Page 16 of 41
SECTION 5: Based on substantial evidence presented during the above-
referenced public hearing on June 2, 2004 and June 16, 2004,
including written and oral staff reports, together with public
testimony, this Council hereby specifically finds that upon the
adoption of Etiwanda North Specific Plan Amendment DRC2003-
00750, the Development Agreement will provide for development
which is consistent with the Etiwanda North Specific Plan. The
City Council bases its findings of consistency with the Etiwanda
North Specific Plan on the facts that the proposed Project will
contain relatively large minimum residential lot sizes (minimum
size of 14,025 square feet and an average lot size of 18,000
square feet), which are larger lots than in many other portions of
the City and consistent with the goals of the Etiwanda North
Specific Plan to provide for larger lots and equestrian lots. In
addition, development of lots less than 20,000 square feet will
require the developer to contribute an in-lieu fee of $1,000 per lot
for the development of an off-site Equestrian Center. The Project
is also designed to contain a trails system, provide for views of the
mountains, and with the imposition of Mitigation Measure LU-2,
will comply with the Specific Plan's requirements for landscape
treatments and required walls, fencing, lighting and community
entry that is consistent with the design scheme specified in the
Etiwanda North Specific Plan.
SECTION 6: This Council hereby approves Development Agreement
DRC2003-00751, attached hereto as Exhibit '~A," subject to the
condition that the Development Agreement shall not become
effective unless and until General Plan Amendment DRC2003-
00749 and the Etiwanda North Specific Plan Amendment
DRC2003-00750 have been reviewed and approved by the City
Council and have taken effect.
SECTION 7: The Mayor shall sign this Ordinance and the City Clerk shall
cause the same to be published within 15 days after its passage
at least once in the Inland Valley Daily Bulletin, a newspaper of
general circulation published in the City of Ontario, California, and
circulated in the City of Rancho Cucamonga, California. Upon the
effective date of this Ordinance and satisfaction of the provisions
contained in Section 6 of this Ordinance, the Mayor shall execute
the Development Agreement on behalf of the City and the City
Clerk shall cause the Agreement to be recorded in the offices of
the County Recorder for the County of San Bernardino.
Please see the following page
for formal adoption, certification and signatures
Ordinance No. 727
Page 17 of 41
PASSED, APPROVED, AND ADOPTED this 7th day of July 2004.
AYES: Alexander, Gutierrez, Howdyshell, Kurth, Williams
NOES: None
ABSENT: None
ABSTAINED: None
William J. Alexayer, Mayor
(
ATTEST:
,/ .; ?
Katfiryr~. L. Scc~it, cM~, DepUty Cty C erk
I, KATHRYN L. SCOTT, DEPUTY CITY CLERK of the City of Rancho
Cucamonga, California, do hereby cedify that the foregoing Ordinance was introduced at a
Regular Meeting of the Council of the City of Rancho Cucamonga held on the 16th day of June
2004, and was passed at a Regular Meeting of the City Council of the City of Rancho
Cucamonga heJd on the 7th day July of 2004.
Executed this 8th day of July 2004, at Rancho Cucamonga, California.
K~th),'yn L. ~j~ott, CMC, D~puty City Clerk
Ordinance No. 727
Page 18of41
DEVELOPMENT AGREEMENT DRC2003-00751
DEVELOPMENT AGREEMENT BETVVEEN THE CITY OF RANCHO CUCAMONGA
AND HENDERSON CREEK PROPERTIES, LLC CONCERNING PROPOSED
TENTATIVE TRACT '16324
This Agreement (the "Development Agreement") is made and entered into this day of
, 2004, by and between Henderson Creek Properties, LLC, a California limited
liability company, and the City of Rancho Cucamonga, a municipal corporation (the "CITY")
pursuant to the authority of Section 65864 through 65869.5 of the California Government Code.
Henderson Creek Properties, LLC, and its successors and assigns, if any, are referred to
collectively hereinafter as the "Property Owner". The CITY and Henderson Creek Properties,
L£C are collectively referred to herein as the "Parties".
RECITALS:
A. To provide more certainty in the approval of development projeCts, to encourage
private participation in comprehensive planning, and to reduce the economic risk of
development, the Legislature of the State of California has adopted Sections 65864, et seq. of
the California Govemment Code, thus authorizing the CITY to enter into binding development
agreements with persons having legal or equitable interests in real property, in order to
establish development rights with respect thereto.
B. Section 65865(b) of the California Government Code authorizes the CITY to
enter into a binding development agreement with respect to real property which is in
unincorporated territory but also within the CITY's sphere of influence, provided that the
effectiveness of the development agreement is conditioned upon the annexation of such real
property to the CITY within the period of time for annexation as specified in the Development
Agreement.
C. Property Owner owns fee title to approximately 90.4 acres of real property
located entirely within the County of San Bemardino (the "County') and more particularly
described in Exhibit A and depicted on Exhibit B attached hereto (the "Project Site").
D. On July 28, 2003, the City received an application for a Tentative Tract Map
(SUBTI-16324), a General Plan Amendment (DRC2003-00749), an Etiwanda North Specific
Plan Amendment (DRC2003-00750), along with this Development Agreement (DRC2003-
00751 ) and a request for Annexation of the proposed Project. An Environmental Impact Report
has been prepared to address the potential environment impacts of the proposed project and all
discretionary actions anticipated by the CITY and the Local Agency Formation Commission.
E. As set forth in Ordinance No. __ adopted by the City Council on __ (the
"Enacting Ordinance"), the execution of this Development Agreement and performance of and
compliance with the terms and conditions set forth herein by the Parties hereto: (i) is in the best
interest of the CITY; (ii) will promote the public convenience, general welfare, and good land use
practices in the CITY; (iii) will promote preservation of land values; (iv) will encourage the
development of the Project by providing a level of certainty to the Property Owner; and (v) will
provide for ordedy growth and development of the CITY consistent with the CITY's General
Plan.
Exhibit "A"
Development Agreement I Henderson Creek Properties, LLC
Ordinance No. 727
Page 19 of 41
AGREEMENT:
NOW, THEREFORE, in consideration of the above recitals, and the mutual promises and
covenants of the Parties, and for other good and valuable consideration, the receipt and
sufficiency of which us hereby acknowledged, the Parties agree as follows:
Section 1. GENERAL PROVISIONS
A. Effectiveness of Development A.qreement
Notwithstanding the effective date of the Enacting Ordinance, this Development Agreement
shall only become operative and the rights and obligations of the Parties shall only arise upon
the annexation of the Project Site to the City, provided the annexation is final as to any and all
administrative actions and is not then subject to judicial challenge, and further provided that
such annexation shall occur on or before February 28, 2005.
B. Term
The term of this Development A~oreemw~ni ~h~ll commence on the Effective Date and ·
shall extend for a period of 10 years thereafter, unless this Development Agreement is
terminated, modified or extended by cimumstances set forth in this Development Agreement,
including, without limitation, the extensions provided below and any extensions attributable to
"rome majeure" circumstances described in Section 2.D.4 hereof or by mutual written consent of
the Parties.
Following the expiration of the Term, this Development Agreement shall be deemed
terminated and of no further force and effect; provided, however, that such termination shall not
affect any dght or duty arising from the project entitlements granted prior to, concurrently with,
or subsequent to the approval of this Development Agreement and the structures that are
developed in accordance with this Development Agreement and the use of those structures
shall continue to be governed by this Development Agreement for purposes of ensuring, for land
use purposes, that those structures continue to be legal conforming structures and that those
uses continue to be legal conforming uses.
C. Assiqnment
Subject to the terms of this Development Agreement, Property Owner shall have the
dght to convey, assign, sell, lease, sublease, encumber, hypothecate or otherwise transfer (for
purposes of this Development Agreement, "Transfer") the Project Site, in whole or in part, to any
person, partnership, joint venture, firm or corporation or other entity at any time dudng the term
of this Development Agreement, and to the extent of each such Transfer, the transferor shall be
relieved of its legal duty to per[orm such obligations under this Development Agreement at the
time of the Transfer, except to the extent Property Owner is in default, as defined in Section 3.C
hereof, of any of the terms of this D~velopment Agreement when the Transfer occurs.
If all or a portion of the Project Site is Transferred and there is noncompliance by the
transferee owner with respect to any term and condition of this Development Agreement, or by
the transferor with respect to any portion of the Project Site not sold or Transferred, such
noncompliance shall be deemed a breach of this Agreement by that transferee or transferor, as
applicable, but shall not be deemed to be a breach hereunder against other persons then
owning or holding any interest in any podion of the Project Site and not themselves in breach
Development Agreement 2 Henderson Creek Properties, LLC
Ordinance No. 727
Page 20of41
under this Development Agreement. Any alleged breach shall be governed by the provisions of
Section 3.C hereof.
In no event shall the reservation or dedication of a portion of the Project Site to a public
agency cause a transfer of duties and obligations unless specifically stated to be the case in this
Development Agreement, any of the exhibits attached to this Development Agreement, the
instrument of conveyance used for such reservation or dedication, or other form of agreement
with such public agency.
Property owner shall notify the CITY not less than 30 days before any such transfer, and
such notice shall contain all material information regarding the contemplated Transfer, including
but not limited to the identity of the transferee, and the material terms of such contemplated
Transfer including an Assignment and Assumption of Development Agreement as to the
Transfer property ("Assumption") to be executed by Transferee and delivered to City upon
Transfer. Upon City notification as described above, delivered by Property owner, subject to
delivery at closing of the Assumptions, without any additional governmental review or action.
D. Amendment of A.qreement
This ~evelopment Agreement may be amended from time to time by mutual consent of
the Parties in accordance with the provisions of Government Code Sections 65867 and 65868.
Notwithstanding anything stated to the contrary in this Development Agreement, the parties may
enter into one or more implementing agreements, as set forth below, to clarify i. hu iiffended
application or interpretation of this Development Agreement, without amending this
Development Agreement.
Property Owner and the CITY acknowledge that the provisions of this Development
Agreement require a close degree of cooperation between Property Owner and the CITY and
that, in the course of the development of the Project Site, it may be necessary to supplement
this Development Agreement to address the details of the Parties' respective performance and
obligations, and to otherwise effectuate the purposes of this Development Agreement and the
intent of the Parties. If and when, from time to time, the Parties find that it is necessary or
appropriate to clarify the application or interpretation of this Development Agreement, the
Parties may do so through one or more implementing agreements (the "Implementing
Agreement"), which shall be executed by the City Planner and by an authorized representative
of Property Owner. After execution, each Implementing Agreement shall be attached es an
addendum and become a pad of this Development Agreement, and may be further changed or
supplemented from time to time as necessary. Such Implementing Agreement shall not require
the approval of the City Council of the CITY and shall only be executed by the City Planner (on
Behalf of the CITY), if the City Planner has determined that such implementing agreements are
not materially inconsistent with this Development Agreement, and applicable ordinances, rules,
regulations and official policies of the CITY in effect at the time of execution of this Development
Agreement. Any changes to this Development Agreement which would impose additional
obligations on the CITY beyond those which would be deemed to arise under a reasonable
interpretation of this Development Agreement, or which would purport to change land use
designations applicable to the Project Site under the applicable Project Entitlements, shall be
considered "material" and shall require amendment of this Agreement in accordance with the
provisions of California Government Code Sections 65867 and 65868.
Development Agreement 3 Henderson Creek Properties. LLC
Ordinance No. 727
Page 21 of 41
Section 2. PLANNED DEVELOPMENT OF THE PROJECT
A, Land Use and Proiect Entitlements
The Project Entitlements are depicted on the Tentative Tract Map, Conceptual Grading
Plan, and Conceptual Landscape Plan, attached hereto as Exhibits C - E. Project Entitlements
refers to the following material related to the approval of the Development Agreement
(DRC2003-00751) and the Tentative Tract Map (SUBTT16324): all plans that constitute the
approved project, all Planning Commission and City Council Resolutions of Approval including
the associated conditions of approval, and all mitigation measures included in the Mitigation
Monitoring and Reporting Plan and the Environmental Impact Report. The Parties acknowledge
that, without being obligated to do so, Property Owner plans to develop the Project Site in
substantial conformity with the Project Entitlements as approved by this Development
Agreement. DUring the Term of this agreement, the permitted uses for the Project, or any
portion thereof, the density and intensity of use, zoning, maximum height and size of proposed
buildings, building and yard setback requirements, provisions for the reservation or dedication of
land, design and performance standards and other terms and conditions of development of the
Project constitute the Entitlements as approved by this Development Agreement. The specific
terms of this Development Agreement shall supersede and be controlling over any conflict
and/or inconsistency with the Project Entitlements.
The parties acknowledge and agree that the total number of lots in the approved tract(s)
total 123 lots. The City agrees that partial final maps may be recorded for portions of the
Project Site in accordance with Government Code Section 66456.1. Other certain specific
rnodifications of the Project Entitlements to which the Parties agree are set forth below. All
exhibits attached hereto constitute matedal provisions of the Development Agreement, and are
incorporated herein.
B. ~lations
Pursuant to California Government Code Section 65856 and except as otherwise
explicitly provided in this Development Agreement, the ordinance, rules and regulations and
official policies governing permitted uses of the Project Site, the density and intensity of such
uses, and design, improvement, and construction standards and specifications applicable to
development of the Project, sh~!! ~.~ tho Pr.,:.i~cf Ent. it!~..m, ents and those ordinances of the CITY,
as implemented by this Development Agree~nent, rules, regulations and official polities, but only
to the extent that they are consistent with the Project Entitlements, as modified and/or amended
by this Development Agreement (the "Existing Laws"), except that the CITY's street
improvement, lighting, storm drain, and the Americans with Disabilities Act ("ADA") standards
shall be followed, and the landscape standards applicable shall be those specified in this
Development Agreement, and/or the CITY's standards. IN the event of any conflict between the
CITY's ordinances, rules, regulations and official policies and the Existing Laws, then the
Existing Laws shall control. The CITY shall not be prevented in subsequent actions applicable
to the Project, from applying new ordinances, rules regulations, and policies in effect ("Future
Policies") to the extent that they do not conflict with the Existing Laws. Such conflict shall be
deemed to occur if, without limitation, such Future Policies:
1. Modify the permitted types of land uses, the density or intensity of use, the
maximum height or size of proposed buildings on the property, building and yard setback
requirements, or impose requirements for the construction or provisions of on-site or offsite
improvements or the reservation or dedication of land for public use, or the payment of fees or
Development Agreement 4 Henderson Creek Properties, LLC
Ordinance No. 727
Page 22of41
the imposition of extractions, other than as am in each case specifically provided for in this
Development Agreement;
2. prevent the Property Owner from obtaining all necessary approvals, permits,
certificates or other entitlements at such dates and under such circumstances as the Property
Owner would otherwise be entitled under this Development Agreement;
3. render any conforming use of the Project Site a non-conforming use or any
structure on the Project Site a non-conforming structure.
C. Desi.qn and Infrastructure Issues
1. Street Sections
(i) The CITY desires that Wardman-Bullock Road be designed in
accordance with CITY Collector Street standards, as depicted in the Etiwanda North Specific
Plan Exhibit 13(E).
(ii) The CITY desires that Colonbero Road be designed in accordance with
CITY Local Street standards, as depicted in the Etiwanda North Specific Plan Exhibit 13(F).
2. Dry Utilities
The Project Entitlements do not require that Burd vaults be installed and the
CITY and Property Owner agree that no Burd vaults will be required throughout the Project Site.
3. Gradinq
The Grading Plan, included in the Project Entitlements, shall conform to the
Design Guidelines of the Etiwanda North Specific Plan. However, with an average slope across
the site of less than 7%, the Project is exempt from the CITY Hillside Development Regulations
of the Development Code.
4. Circulation Issues and Fees
a. Transportation Fee/Traffic Impact Analysis
The Property Owner shall construct circulation improvements as depicted on
Exhibit F. In addition, the Property Owner shall comply with Transportation Development Fees
in accordance with CITY ordinance. The Property Owner shall receive credit against, or
reimbursement of costs, in excess of the Transportation Development Fee for the "backbone"
improvements as described herein, inc conformance with CITY policy.
b. Other Circulation Improvements
The Property Owner shall design and construct the following improvements:
(i). Wardman-Bullock Road along the project frontage at its ultimate
half section width (66 foot right-of-way).
Development Agreement 5 Henderson Creek Properties, LLC
Ordinance No. 727
Page 23 of 41
(ii) The west side of Wardman-Bullock Road from Wilson Avenue to
the south project boundary. Improvements shall include curb and gutter, A.C. pavement and
5800 Lumens HPSV street lights.
ADDRESSED BELOW in SECTION 2.1.2.
d. Reimbursement Aqreement
The City agrees that the construction of the Wardman-Bullock Road
improvements will benefit other prope~' owners and developers in the vicinity of the Project
Site. The City agrees to use its best eflo~ls to condition benefited projects or otherwise seek to
obtain fair share contributions from surrounding property owners and developers for the
construction of Wardman-Bullock Road and agrees to reimburse the Property Owner to the
extent fair share contdbufions are collected from other properly owners for the cost of
construction of Wardman-Bullock Road in accordance with the provisions of Section 2.1, below.
The obligations hereunder shall survive the termination of this Agreement and shall continue
until such time as the Properly Owner has received payment in full for the cost of the
construction of Wardman-Bullock Road; provided, however, that the City's obligation shall be
limited to the extent the City can collect such funds.
5. Storm Drains
(i) Improvements to the Henderson Creek Levee are being completed under
the direction of the San Bernardino County Flood Control District. These improvements must be
completed prior to occupancy of homes in the affected area.
(ii) The site is located within Area 13 of the Etiwanda/San Sevaine Drainage
Plan; applicable fees and construction requirements shall apply.
6. Park Fee/Equestrian Fee/Beautification Fee
The Property Owner shall pay the following fees:
a. Property Owner will pay CITY a sum totaling $95,000.000 (based upon
$1,000 per unit for the ninety-five lots which do not conform to equestrian standards) for
equestrian purposes. The sum will be paid from CFD formation and funding, prior to recording
of the first final map and shall be reserved by the City for the construction and subsequent
capital maintenance costs associated with the development of an equestrian enclosed arena
complex in the Etiwanda North area.
b. The Property shall pay the CITY a sum totaling $ 811,800 for park
purposes (based upon a value of $ 6,600 per dwelling unit). The sum shall be paid from CFD
formation and funding, prior to recording of the first final map.
c. In exchange for the construction of the landscaping improvements on the
east side of Wardman-Bullock Road, adjacent to the Henderson Creek Channel improvements,
the property Owners shall not be required to pay CITY Beautification Fee of $0.20 per square
foot for residential construction.
Development Agreement 6 Henderson Creek Properties, LLC
Ordinance No. 727
Page 24 of 41
7. Development Standards
a. The project shall be developed in accordance with the CITY's Low-
Density Residential District of the Etiwanda North Specific Plan.
b. The project entitlements include 123 housing units.
8. Desi.qn Review Process
The Project, and all subsequent applications for residential development, shall be
subject to the CITY Development/Design Review process.
9. Architectural Guidelines
The Project, and all subsequent applications for residential development, shall be
subject to the Architectural Guidelines of the Etiwanda North Specific Plan.
10. Open Space Transfer Plan
The Property Owner shall transfer to the County of San Bemardino Special
Districts OS-1 or other qualified conservation entity approved by the City, in fee, a minimum of
54-acres of off-site land for permanent open space and habitat preservation; along with funding
in an amount to be mutually agreed upon by the Property Owner and the conservation entity, to
provide for long-term maintenance of said land. The preferred location of the off-site land is in
the environment surrounding the North Etiwanda Preserve in the CITY Sphere of Influence,
other properties may be considered based the review of appropriate Biological Habitat
Assessments and concurrence of the CITY Planner. The transfer and funding shall occur prior
to recording of the first final map of the Project.
D. Timinq of Development and Fees
1. Development of the Perimeter Landscapinq and the Etiwanda North Specific
Plan Neiqhborhood Monumentation
All required perimeter landscaping shall be completed pdor to the release of
occupancy of the 75th dwelling within the project.
2. Development of the Remainder of the Site
Neither the property owner nor CITY can presently predict when or the rate at
which phases of the project shall be developed, since such decisions depend on numerous
factors which are not within the control of the Property Owner including, without limitation,
market orientation and demand, interest rates, absorption, competition and other factors.
The parties acknowledge and agree that Property Owner retains flexibility under
this Development Agreement to develop the Project in such order and at such rate and times as
are appropriate within the exercise of the Property Owner's business judgment. The CITY
fudher acknowledges that Property Owner may desire to market, sell, or otherwise arrange for
disposition of some or all of the Project Site, prior to development, and that the rate at which the
Project develops will tikely depend upon the business judgment of subsequent owners of the
Project Site.
Development Agreement 7 Henderson Creek Properties, LLC
Ordinance No. 727
Page 25 of 41
3. CITY's Cooperation
CITY shall use good faith, diligent efforts to promptly process and take final
action on any applications for permits or approvals filed by Property Owner with respect to the
Project. Such cooperation shall include, without limitation, (a) using good faith, diligent efforts to
process subsequent Development/Design Review in accordance with state regulations; and
(b) promptly processing all ministerial permits in accordance with Section 2.H. below. Without
limiting the effect of any other provision of this Development Agreement, any future regulation,
whether adopted by initiative or otherwise, limiting the rate or timing of development of the
Project Site or the extent thereof, shall be deemed to conflict with Property Owner's vested
rights to develop the Project under this D~velopment Agreement and shall, to that extent, not
apply to the development of the Project.
Processing and review of development proposals shall be subject to established
procedures in effect in the entire CITY, including Development and Design Review, as specified
in the Existing Laws. However, the criteda used in the evaluation of each development proposal
shall be based on the objectives, policies and specific development standards specified herein.
4. Force Maieure
Notwithstanding anything To tne co~;,~ary contained in the Development
Agreement, Property Owner and CITY shall be excused from performance of their obligations
under this Development Agreement during any period of delay caused by acts of God or civil
commotion, riots, strikes, picketing, or other labor disputes, shortage of materials or supplies, or
damage to or prevention of work by reason of fire, floods, earthquake, or other casualties,
litigation, acts or neglect of the Property Owner, as applicable. The time of performance of such
obligations as well as the term of this Development agreement shall automatically be extended
by the pedod of such delay hereunder.
E. Future Entitlements
With respect to any entitlements that Property Owner may require in the future,
including, without limitation, tentative tract and parcel map approvals, conditional use permits,
and Development/Design Review, the CITY shall retain its discretionary review authority and the
CITY's applicable ordinances, rules, regulations and official policies. However, any such
discretionary review shall be expressly subject to the provisions of this Development Agreement
and the CITY may only impose conditions upon such discretionary entitlements which are
consistent with the Project Entitlements as approved by this Development Agreement, except as
otherwise specifically required by state or federal law.
F. Environmental Review
Other than the mitigation measures and conditions of approval set forth in the EIR and
the Project Entitlements (and any additional future mitigation programs contemplated therein),
no other mitigation measures for environmental impacts created by the Project, as presently
approved and as evaluated in the EIR, shall be required. In connection with the CITY's
issuance of any further entitlement (as contemplated in Section 2.E above), which is subject to
CEQA, the CITY shall promptly commence and diligently process any and all initial studies and
assessments required by CEQA, and to the extent permitted by CEQA, the CITY shall use the
EIR and other existing environmental reports and studies as adequately addressing the
environmental impacts of such matter or matters, without requiring new or supplemental
Development Agreement 8 Henderson Creek Properties, LLC
Ordinance No. 727
Page 26 of 41
environmental documentation. In the event CEQA requires any additional environmental
review, the CITY may impose additional feasible measures (or conditions) to mitigate, as
required by CEQA, the adverse environmental impacts of such future entitlements, which were
not considered, and could not have been considered, at the time of approval of the Project.
G. CITY Fees and Mandates by State and Federal Laws
The Parties acknowledge and agree that the fees and impositions which may potentially
be imposed by the CITY on the Project and Property Owner (collectively "fees") fall within on of
three categories: (a) fees for processing land use and construction permit applications which are
not otherwise governed by the provisions of Section 66000 of the Government Code (but which
are subject to the limitations set forth in Sections 66013, 66014, and 66016-66018.5 of the
Govemment Code) (collectively, the "Processing Fees"); (b) fees or other monetary exactions
which are contemplated under ordinances or resolutions in effect as of the date of this
Development Agreement and which purport to defray all or a portion of the cost of impacts to
certain public facilities, improvements and other amenities from the development projects,
including any fees described in Government Code Sections 66000 et seq. (collectively, the
"Existing Fee Categories") (the Existing Fee Categories include any increases, decreases, or
other modifications to existing fees, so long as such modified fees relate to the same category
of impacts identified in the Existing Fee Categories); and (c) fees or other monetary exactions
which may be imposed in the future by the CITY for purposes of defraying all or a portion of the
cost of public facilities, improvements, or amenities related to development projects, but
excluding the ExJsting Fee Categories ("Other Fees"). The Property Owner's obligation to pay
Fees shall be specifically governed by the following provisions:
1. Processinq Fees. The CITY may charge Planning and Engineering Plan Check
and Permit Fees and Building Permit Fees which are in rome and effect on a CITy-wide basis at
the time of Property Owner's application for a land use entitlement or a construction permit. The
amount of any Processing Fees shall be determined by the CITY in accordance with all
applicable laws, including, without limitation, Government Code Sections 66013, 66014, and
66017-66018.5 (or any successor laws, as applicable). Unless otherwise agreed by Property
Owner and the CITY, the Processing Fees assessed Property Owner shall be the same as
those imposed upon other development projects throughout the jurisdictional limits of the CITY.
2. Existing Fees. In consideration of the development of the Project Site as set
fodh in this Development Agreement, and the positive fiscal impact of the Project on the City,
the City agrees that neither the Property Owner, nor the Project shall be subject to any increase
in the Existing Fees or to any additional City imposed fees, impositions or monetary exactions
with respect to the Existing Fee categories for a period of five (5) years following the effective
date of this Development Agreement.
3. Other Fees. In consideration of the Property Owner's Agreement to modify the
Project Entitlements as specifically set forth in this Development Agreement and implement the
timing of development in accordance with the terms set forth above, no Other Fees shall be
imposed upon the Property Owner or the Project during the applicable Fee Limitation Period,
except as may be specifically required to carry out any state or federal law or mandate enacted
after the effective date of this Development Agreement, as necessary to mitigate environmental
impacts of the project in accordance with 2.G above.
Development Agreement 9 Henderson Creek Properties, LLC
Ordinance No. 727
Page 27 of 41
4. Fiscal Impact Analysis. CITY does not require Property Owners or the Project to
complete a fiscal impact analysis for application or issuance of any approvals or permits that
CITY might issue under this Development Agreement.
H. Non-discretionary Permits
The Parties acknowledge that in the course of implementing the Project, Property Owner
will, from time to time, apply to the CITY for various ministerial permits, licenses, consents,
certificates, and approvals, including, without limitation, non-discretionary subdivision approvals,
grading permits, construction permits, certificates of occupancy and permits required to connect
the Project to utility systems under thc CiTY's j~risdic~ion (collectively the "Non-Discretionary
Permits"). Property Owner shall have the right to apply for any such Non-Discretionary Permits
in accordance with the Existing Laws (and any applicable Future Policies under Section 2.B,
above). The CITY shall issue to Property Owner, upon such applications, all required Non-
Discretionary Permits, subject only to compliance with the terms of this Development
Agreement, the CITY's usual and customary fees and charges for such applications and Non-
Discretionary Permits (subject to the provisions of Section 2.G above) and the terms and
conditions of the applicable permit application. The CITY further agrees that upon its approval
of any plans, specifications, design drawings, maps, or other submittals of Property Owner in
conjunction with such Non-Discretionary Permits (the "Approved Plans"), all further entitlements,
approvals and consents required from the CITY to implement the Project which are consistent
with and further implement such Approved Plans, shall be processed and approved by the CITY
in accordance with this Development Agreement.
I. Cooperation
1. Cooperation with Other Public Aqencies. The CITY acknowledges that the
Property Owner may apply from time to time for permits and approvals as may be required by
other governmental or quasi-governmental agencies having jurisdiction over the Project, in
conjunction with the development of or provision of services to the Project, including, without
limitation, approvals in connection with the developing and implementing a tertiary water
system, potential transportation improvements and other on-site and off-site infrastructure. The
CITY shall cooperate with Property Owner in its efforts to obtain such permits and approvals
from such agencies (including without limitation, the Cucamonga Valley Water District, and the
Inland Empire Utilities Agency), and shall provide any documents or certificates reasonably
required to process and obtain such permits and approvals.
2. Construction of Off-Site Improvements. To the extent that Property Owner is
required to construct any off-site improvements as a condition of developing the Project, the
Property Owner shall make good faith efforts to acquire any off-site property interests required
to construct such public improvements. If Property Owner fails to do so, Property Owner shall,
at least 120 days prior to submittal of the first final subdivision map for approval, enter into an
agreement to complete the improvements under Government Code Section 66462 and 66462.5
at such time as the CITY decides to acquire the property interests required for the public
improvements. Such agreement shall provide for payment by Property Owner of all costs
incurred by the City to acquire the off-site property interests required in connection with the
subdivision. Security for a portion of those costs shall be in the form of a cash deposit in the
amount stated in an appraisal report obtained at Property Owner's cost. The appraiser shall
have been approved by the CITY prior to commencement of the appraisal. To the extent that
such off-site improvements, or the construction of any substantial infrastructure on-site,
substantially benefit other property owners or other portions of the jurisdiction or limits of the
Development Agreement 10 Henderson Creek Properties, LLC
Ordinance No. 727
Page 28 of 41
CITY, the CITY agrees to assist Property Owner to the fullest extent possible in obtaining
reimbursement or other fair share contribution by such other benefited property owners. Such
assistance may include, without limitation, conditioning the approval of development projects
proposed by such benefited property owners upon such owners' contribution, on a fair share,
pro-rata basis, to the construction cost of such improvements. Without limiting the generality of
the foregoing, the CITY agrees with respect to the infrastructure improvements which are
adjacent to and benefit other properties (whether such properties are undeveloped or
developed), any further discretionary approvals sought by such property owners shall be
conditioned to require fair share reimbursement to Property Owner or City, as the case may be,
for construction and related costs incurred in providing such improvements to the extent legally
permissible.
3. Public Financinq. The Parties hereby acknowledge that substantial public
~mprovements must be funded in order to contribute to the Park Fee and Equestrian and School
Fees and the remainder of the Project Site and that public financing of a substantial portion of
these improvements will be critical to the economic viability of the Project. Subject to CITY's
ability to make all findings required by applicable law and complying with all applicable legal
procedures and requirements, the CITY agrees to cooperate with and assist Properly Owner to
the fullest extent possible in developing and implementing a public financing plan for the
construction of the public infrastructure improvements. The implementation of such plan may
include, without limitation, the formation of one or more assessment districts, or Mello-Roos
community facilities districts, or the issuance of bonds, certificates of participation, or other debt
securities necessary to implement such plan.
J. Creation of the Landscape and Street Li.qhtin.q Maintenance District
The CITY agrees to promptly annex the Project Site to an existing Landscaping and
Lighting Maintenance Distdct (LMD) or form the necessary LMD pursuant to California Streets
and Highways Code Sections 22500 et seq (the "Landscape and Lighting Act of 1972") for the
Project development to encompass the Project Site as well as the area being annexed by the
CITY. In addition, the Property shall annex to the existing Street Lighting Districts. The
property Owner shall pay for the annexation or formation of the LMDs. The Parties agree that
annexation to the LMD or the formation of a new LMDs must be accomplished no later than
recordation of the final tract map and that the CITY may create LMDs, which allow annexation of
other areas. In addition, if outside agencies, upon their review and approval of various
components of the project, impose any non-standard improvements that require extraordinary
maintenance responsibilities of the CITY, the CITY may impose the creation of additional
maintenance districts upon the proposed development. Upon formation of the LMD, and
acceptance of the improvements by the City Council, the CITY (through the LMD) shall assume
full responsibility for the maintenance, repair, and replacement of the improvements to be
maintained by the LMD pursuant to the LMD's governing documents.
The Padies also acknowledge that assessments for the LMDs are collected annually in
June, and to the extent that assessments are collected through the LMD for the period ending
June 2006, the City may request, and the Property Owner agrees to provide, a reasonable cash
deposit to fund the LMD. The CITY shall promptly upon receipt of assessments the following
June, reimburse Property Owner for any such cash advances to fund the LMDs.
Development Agreement 11 Henderson Creek Properties, LLC
Ordinance No. 727
Page 29 of 41
Section 3. ANNUAL REVIEW
A. Good Faith Compliance
Pursuant to California Government Code Section 65866.1, the CITY shall once every
twelve (12) months during the term of this Development Agreement, review the extent of good
faith substantial compliance by Property Owner with the terms of this Development Agreement;
provided, however, that it is intended that this review shall apply to the Project Site as a whole,
as opposed to each individual property owner who may ow.n a parcel comprising the Project
Site. in connection with such annual review, Property Owner~all provide such information as
may reasonably be requested by the CITY in order to determine whether any provisions of this
Agreement have been breached by Property Owner. If at any time prior to the review period
there is an issue concerning a Property Owner's compliance with the terms of this Development
Agreement, the provisions of this Section 3 shall apply.
B. Certificate of Compliance
If Property Owner is found to be in compliance with this Development Agreement after
annual review, the City Planner shall, upon written request by Property Owner, issue a
certificate of compliance ("Certificate of Compliance") to property Owner stating that, based
upon information known to the CITY, the Development Agreement remains in effect and
Property Owner is not in default. The Certificate of Compliance shall be in recordable form and
shall contain such information as shall impart constructive record of notice of compliance.
Property Owner may record the Certificate of Compliance in the Official Records of the County
of San Bemardino.
C. Findin,q of Default
If, upon completion of the annual review, the City Planner intends to find that Property
Owner has not complied in good faith with the material terms of this Agreement (a "Default"), he
shall first give written notice of such effect to the Property Owner. The notice shall be
accompanied by copies of all staff reports, staff recommendations and other information
concerning Property Owner's compliance with the terms of this Development Agreement as the
CITY may possess and which is relevant to determining Property Owner's performance under
this Development Agreement. The notice shall specify in detail the grounds and all facts
allegedly demonstrating such noncompliance, so Property Owner may address the issues
raised on a point-by-point basis. Property Owner shall have twenty (20) days after its receipt of
such notice to file a written response with the City Planner. Within 10 days after the expiration
of such 20-day response pedod, the City Planner shall notify Property Owner whether he has
determined that Property Owner is in Default under this Development Agreement ("Notice of
Default"). Such Notice of Default shall specify the instances in which the Property Owner has
allegedly failed to comply with this Development Agreement and the terms under which
compliance can be obtained. The Notice of Default shall also specify a reasonable time for
Property Owner to meet the terms of compliance, which time shall not be less than thirty (30)
days from the date of the Notice of Default, and which shall be reasonably related to the time
necessary to bring Property Owner's performance into good faith compliance.
D.
Upon receipt of the Notice of Default, the Property Owner may appeal the City Planner's
decision directly to the City Council. Such appeal shall be initiated by filing a written notice of
Development Agreement 12 Henderson Creek Properties, LLC
Ordinance No. 727
Page 30 of 41
appeal with the City Clerk within the (10) calendar days following the Property Owner's receipt
of the Notice of Default. The hearing on such appeal shall be scheduled in accordance with
Section 17.02.080 of the CITY Development Code. At the hearing, Property Owner shall be
entitled to submit evidence and to address all the issues raised by the Notice of Default. If, after
considering all the evidence presented at the hearing, the City Council finds and determines on
the basis of substantial evidence the Property Owner is in Default, then the City Council shall
specify in writing to Property Owner the instances in which the Property Owner has failed to
comply and the terms under which compliance can be obtained, and shall also specify a
reasonable time for Property Owner to meet the terms of compliance, which time shall not be
less than thirty (30) days from the date of such writing from the City Council and which shall be
reasonably related to the time necessary to bring Property Owner's performance into good faith
compliance.
E. Property Owner's Cure Ri.qhts
If Property Owner is in Default under this Development Agreement, it shall have a
reasonable period of time to cure such Default before action is taken by the CITY to terminate
this Development Agreement or to othenNise amend or limit Property Owner's rights under this
Development Agreement or to otherwise amend or limit Property Owner's rights under this
Development Agreement. In no event shall such cure period be less than the time set forth in
the finding of Default made under Sections 3.C or 3.D above (as applicable) or less than the
time reasonably necessary to cure such Default. Any such cure pedod shall be extended by
force majeure circumstances described in Section 2.D.5 above.
Section 4. ENFORCEMENT
A. Enforcement by Either Party
Subject to all requirements mandated by applicable state or federal or other law, this
Development Agreement shall be enforceable by any of the parties.
B. Cumulative Remedies
In addition to any other rights or remedies, any of the Parties may institute legal action to
cure, correct or remedy any Default (to the extent otherwise permitted herein and in
Government Code Section 65864 et seq. or any successor laws and regulations), to enforce
any covenant or agreement herein in this Development Agreement or to enjoin any threatened
or attempted violation, including suits for declaratory relief, specific performance, and relief in
the nature of mandamus. All of the remedies described above shall be cumulative and not
exclusive of one another, and the exercise of any one or more of the remedies shall not
constitute a waiver or election with respect to any other available remedy. The provisions of this
Section 4.B are not intended to modify other provisions of the Development Agreement and are
not intended to provide additional remedies not otherwise permitted by law.
C. Attorney's Fees
In any legal proceedings brought by either party to enforce any covenant or any of the
Parties' rights or remedies under this Development Agreement including, without limitation, any
action for declaratory or equitable relief, the prevailing party shall be entitled to recover
reasonable attorneys' fees and all reasonable costs, expenses and disbursements in connection
with such action. Any such attorneys' fees and other expenses incurred by either of the Parties
Development Agreement 13 Henderson Creek Properties, LLC
Ordinance No. 727
Page 31 of 41
in enforcing a judgment in its favor under this Development Agreement, shall be recoverable
separately from and in addition to any other amount included in this judgment, and such
attorneys' fees obligation is intended to be severable from the other provisions of this
Development Agreement and to survive and not be merged into any such judgment.
Section 5. MISCELLANEOUS PROVISIONS
A. Successors and Assi.qns
Subject to the provisions of Section 1.C above, the terms of this Development
Agreement shall be binding upon and inure to the benefit of the Parties, and their successors
and assigns. Insofar as this Development Agreement refers to Properly Owner, as defined
herein, if the rights under this Development Agreement are assigned, the term "Property Owner"
shall refer to any such successor or assign.
B. Project as a Private Undertakin.q
It is specifically understood and agreed by and between the Parties that the Project is a
private development, that neither party' is acting ~s me agent of the other in any respect under'
this Development Agreement, and that each of the Parties is an independent contracting entity
with respect to the terms, covenants and conditions contained in this Development Agreement.
No partnership, joint venture or other association of any kind is formed by this Development
Agreement. The only relationship between the CITY and Property Owner is that of a
government entity regulating the development of private property and the owner of such private
property.
C. Caption.s.
The captions of this Development Agreement are for convenience and reference only
and shall in no way define, explain, modify, construe, limit, amplify or aid in the interpretation,
construction or meaning of any of the provisions of this Development Agreement.
D. Mort,qaqe Protection
1. Discretion to Encumber. This Development Agreement shall not prevent or limit
Property Owner, in any manner, at Property Owner's sole discretion, from encumbering the
Project or any portion of the Project or any improvements on the Project, by any mortgage, deed
of trust or other secudty device securing financing with respect to all or any part of the Project or
any improvements thereon (a "Mortgage").
2. Effect of Default. This Development Agreement shall be supedor and senior to
any mortgage subsequently placed upon the property, or any portion thereof, or any
improvement thereon, including the lien of any mortgage or deed of trust. Despite the
foregoing, breach of any provision of this Development Agreement shall not defeat, render
invalid, diminish or impair the lien of any Mortgage made in good faith for value.
3. Mort.qaqee Not Obliqated. Notwithstanding anything in this Development
Agreement to the contrary, (a) any holder of the beneficial interest under a Mortgage
("Mortgagee") may acquire to or possession of all or any portion of the Project or any
improvement thereon pursuant to the remedies provided by its Mortgage, whether by judicial or
non-judicial foreclosure, deed in lieu of foreclosure, or otherwise, and such Mortgagee shall not
Development Agreement 14 Henderson Creek Properties, LLC
Ordinance No. 727
Page 32 of 41
have any obligation under this Development Agreement to construct, fund or otherwise perform
any affirmative obligation or affirmative covenant of Property Owner hereunder or to guarantee
such performance, and Mortgagee may, after acquiring title to all or any portion of the Project as
aforesaid, assign or otherwise transfer the Project or any such portion thereof to any person or
entity, and upon the giving of notice of such assignment or transfer to the CITY and the
assumption by the assignee or transferee of the obligations of the Property Owner with respect
to the Property Owner or portion thereof so acquired which arise or accrue from and after the
date of assignment or transfer, Mortgagee shall be relieved and discharged of and from any and
all further obligations or liabilities under this Development Agreement with respect to the Project
or portion thereof so assigned or transferred; and (b) the consent of CITY shall not be required
for the acquisition of all or any portion of the Project by any purchaser at a foreclosure sale
conducted pursuant to the terms of any Mortgage, and such purchaser shall, by virtue of
acquiring title to the Project or such portion thereof, be deemed to have assumed all obligations
of Property Owner with respect to the Project or portion thereof so acquired which arise or
accrue subsequent to the purchase date, but such purchaser shall not be responsible for any
prior defaults of Property Owner; provided, however, that in either of the instances referred to in
clauses (a) or (b) above, to the extent any obligation or covenant to be performed by Property
Owner is a condition to granting of a specific benefit or to the performance of a specific
covenant by CITY, the performance thereof shall continue to be a condition precedent to the
CITY's granting of such benefit and performance of such covenant hereunder.
4. Notice of Default to Mortqa.qee: Ri.qht of Mort.qaqee to Cure. If a Mortgagee files
with the CITY Clerk, a written notice requesting a copy of any Notice of Default given Property
Owner under this Development Agreement and specifying the address for delivery thereof, the
CITY shall deliver to such Mortgagee, concurrently with delivery thereof to Property Owner, any
notice given to Property Owner with respect to any claim of the CITY that Property Owner has
not complied with the terms of this Development Agreement or is otherwise in Default under this
Development Agreement. Each such Mortgagee shall have the right (but not the obligation) for
a pedod of thirty (30) days after the expiration of any cure pedod given to Property Owner with
respect to such Default, to cure such default; provided, however, that if any such Default cannot,
with diligence, be remedied or cured within such thirty (30) day period, then such Mortgagee
shall have such additional time as may be necessary to remedy or cure such Default, if such
Mortgagee commences to remedy or cure within such thirty (30) day period, and thereafter
diligently pursues and completes such remedy or cure. Notwithstanding the foregoing, if the
Default is of a nature which can only be cured by Mortgagee by obtaining possession, such
Mortgagee shall be deemed to have remedied or cured such Default such Mortgagee shall,
within such thirty (30) day period, commences efforts to obtain possession and carry the same
forward with diligence and continuity through implementation of foreclosure, appointment of a
receiver or otherwise, and shall thereafter remedy or cure or commence to remedy or cure the
Default within the cure period specified in Section 3.E above.
5. Bankruptcy. Notwithstanding the provisions of Section 5.D.4 above, if a
Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate
proceedings in the nature thereof to obtain possession of the Project Site by any process or
injunction issued by any court or by any reason of any action by any court having jurisdiction of
any bankruptcy or insolvency proceeding involving Property Owner, Mortgagee shall for the
purposes of this Development Agreement be deemed to be proceeding with diligence and
continuity to obtain possession of the Property during the period of such prohibition of
Mortgagee is proceeding diligently to terminate such prohibition.
Development Agreement 15 Henderson Creek Properties, LLC
Ordinance No. 727
Page 33 of 41
6. Amendment to Development Aqreement. The CiTY and Property Owner agree
not to modify this Development Agreement or to allow this Development Agreement to be
modified or amended in any way, or cancel this Development Agreement, without the prior
wdtten consent of each Mortgagee, which consent shall not be unreasonably withheld or
delayed. Notwithstanding anything stated above to the contrary, the CITY and Property Owner
shall cooperate in including in this Development Agreement, by suitable implementing
agreement from time to time, any provision which may reasonably be requested by a proposed
Mortgagee for the purpose of implementing the mortgagee-protection provisions contained in
this Development Agreement and allowing such Modgagee reasonable means to protect or
preserve the lien of the Mortgage on the occurrence of a default under the terms of this
Development Agreement. The CITY and Property Owner each agree to execute and deliver
(acknowledge, if necessary for recording purposes) any implementing agreement necessary to
effect such request; provided, however, that any such implementing agreement shall not in any
material respect adversely effect any rights of the CITY under this Development Agreement or
be materially inconsistent with the substantive provisions of this Development Agreement, the
Project Entitlements and the Existing Laws.
E. Consen,t.
Where the conseni or approval of any of the Parties is required in or necessary under
this Development Agreement, unless the context otherwise indicates, such consent or approval
shall not be unreasonably withheld.
F.
This Development Agreement and the documents attached to and referred to in this
Development Agreement constitute the entire agreement between Parties with respect to the
subject matter of this Development Agreement.
G. Further Actions and Entitlements
Each of the Parties shall cooperate with and provide reasonable assistance to the other
to the extent contemplated under this Development Agreement in the performance of all
obligations under this Development Agreement and the satisfaction of the conditions of this
Development Agreement.
This Development Agreement including, without limitation, its existence, validity,
construction and operation, and the rights of each of the Parties shall be determined in
accordance with the laws of the State of California.
I. Recording[
The CITY Clerk shall cause a copy of this Development Agreement to be recorded in the
office of the Recorder of the County of San Bernardino no later than ten (10) days following the
effective date of this Development Agreement.
Development Agreement 16 Henderson Creek Properties, LLC
Ordinance No. 727
Page 34 of 41
J. Time
Time is of the essence in this Development Agreement and of each and every term and
condition of this Development Agreement.
K. Waiver
The failure of any of the Parties at any time to seek redress for any violation of this
Development Agreement or any applicable law or regulation or to insist upon the strict
performance of any term or condition shall not prevent any subsequent act or omission of the
same or similar nature which would have originally constituted a breach of or default under this
Development Agreement from having all the force and effect of an odginal breach or default,
and such subsequent act or omission may be proceeded against to the fullest extent provided
by this Development Agreement. No provision of this Development Agreement shall be deemed
to have been waived by a pady unless the waiver is in writing and signed by any of the Parties.
L. Partial Invalidity
If any term, covenant, condition or provision of this Development Agreement is held by a
court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the
provisions of this Development Agreement shall remain in full force and effect and shall in no
way be affected, impaired or invalidated thereby.
M. Notices
All notices between the CITY and Property Owner and any transferee under this
Development Agreement, shall be in wdting and shall be given by personal delivery, mail or
facsimile. Notice by personal delivery or facsimile shall be deemed effective upon delivery of
such notice to the party for which it is intended at the address set forth below (or, in the case of
a transferee in a written notice to the CITY). Notice by mail shall be deemed effective upon
receipt or rejection of the addressee. The Parties' current address are as follows:
To CITY: Mr. Jack Lam, AICP
City Manager
City of Rancho Cucamonga
10500 Civic Center Drive
Rancho Cucamonga CA 91730
With Copies to: Mr. James Markman
City Attorney
Richards, Watson, & Gershon
One Civic Center Circle
Brea CA 92821
To Property Owner: Henderson Creek Properties, LLC
16337 Shadbush Street
Fountain Valley, CA 92708
Development Agreement 17 Henderson Creek Properties, LLC
Ordinance No. 727
Page 35 of 41
With Copies to: Manatt, Phelps & Phillips
650 Town Center, Suite 1250
Costa Mesa, CA 92626
Attn: Roger A. Grable
Either Party may change its mailing address or the person to whom notices are to be
sent at any time by giving written notice of such change to the other Parties in the manner
provided above.
N. Indemnification
Property Owner hereby agrees to indemnify, defend, and hold harmless the CITY and its
Council members, representatives, agents c)fficers~ attorneys, and employees (the "Indemnified
Parties") from and against any third party claim, ac~on, or proceeding against the Indemnified
Parties to attack, set aside, void, or annul the approval of this Development Agreement, the
Project Entitlements or both.
IN WITNESS WHEREOF, the Parties have duly executed this Development Agreement
as of the day and year first above written.
CITY OF RANCHO CUCAMONGA PROPERTY OWNER
By: By:.
Mayor NAME
TITLE
ATTESTED TO:
City Clerk
APPROVED AS TO FORM:
City Attorney
Attorney's for property Owner
Development Agreement 18 Henderson Creek Properties, LLC
Ordinance No. 727
Page 36 of 41
EXHrRIT "A"
LEGAL DESCRIPTION
LAFCO NO.
THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 21, AND A PORTION OF TH~ WEST
HALF OF SECTION 22 TOWNSHIP 1 NORTH, RANGE 6 WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY
OF SAN BERNARD[NO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
BEGINNING AT THE NORTHWEST CORNER OF SAID SECTION 22;
THENCE NORTH 89°40'08" EAST ALONG TI~ NORTH LINE OF SA~ SECTION 22, A DISTANCE OF 1325.05
FEET TO THE NORTHEAST CORNER OF THE NORTHWEST QUARTER OF THE NORTHWEST QUARTER OF
SAID SECTION 22;
_Tt~NCE SOUTH 00°00'03'' WEST ALONG THE EAST LINE OF SAID NORTHWEST QUARTER OF THIE
NORTHWEST QUARTER, A DISTANCE OF 1319,87 FEET TO THE SOUTHEAST CORNER OF SAID NORTHWEST
QUARTER OF THE NORTHWEST QUARTEK;
THENCE SOUTH 00°00'03'' WEST ALONG ~ EAST LINE OF THE SOUTHWEST QUARTER OF TI~
NORTHWEST QUARTER OF SAID SECTION 22, A DISTANCE OF 659,93 FEET;
THENCE SOUTH 89034'15'' WEST A DISTANCE OF 1325,86 PEET TO TI-HE WEST LINE OF SAID SECTION 22;
' THENCE NORTH 00°01'26' EAST ALONG SAIl) WEST LINE, A DISTANCE OF 660.87 FEET TO THE SOUTHEAST
CORNER OF THE NORTHEAST QUARTER OF THE NORTHEAST QUARTER OF SAID SECTION 2
THENCE SOUTH 89°15'44" WEST ALONG THE SOUTH LrNE OF SAID NORTHEAST QUARTER OF THE
NORTHEAST QUARTER, A DISTANCE OF 1324.87 FEET TO THE SOUTHWEST COKNER OF SA2~ NORTHEAST
QUARTER OF THE NORTHEAST QUARTER;
THENCE NORTH 00000'53'' EAST ALONG THE WEST LINE OF SAID NORTHEAST QUARTER OF
NORTHEAST QUARI k,K, A DISTANCE 1320t82 FEET TO THE NORTHWEST CORNER OF SAID NORTHEAST
QUARTER OF TI-IE NORTHEAST QUARTER;
THENCE'NORTH 89°14'46" EAST ALONG TH]E NORTH LINE OF SAID SECTION 21, A DISTANCE OF 1325.09
FEET TO THE POINT OF BEGINNING.
CONTAINING IN 100.45 ACRES MORE OR LESS
ALL AS SHOWN ON EXFIYBIT "B" ATTACFYED HERETO AND BY THIS REFERENCE MADE A PART HEKEOF.
THIS LEGAL DESCRIPTION WAS PKEPARED BY ME OR UNDER MY DIRECTION.
No. 3821 WILLIAM H. ADDINGTON, P.L.S. 3821 DATE
~ LICENSE EXPIRES 06/30/04
EXHIBIT A
P.O.B.
[
ROAD [I A.P.N. 0226-081-28
~ ~ - CU~ON~
RO~
~. ~ COLONB~O / R.S. ~9/6~.
ROAD~~ ~ [ ]-,NO,CA~S RECORD OATA PER
ROAD OF S[C~ON 22 0
~ ~ ~ W~DM~ BU~OCK "] G~HIC S~ 0
-- RO~ ~ ~ o ~=o ~oo ~o~ 0 '
Ordinance No. 727
Page 38 of 41
Ordinance No. 727
Page 39 of 41
TRACT 16524 CIRCULATION IMPROVEMENTS
TRACT