HomeMy WebLinkAbout718 - Ordinances ORDINANCE NO. 718
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
RANCHO CUCAMONGA, CALIFORNIA, APPROVING
DEVELOPMENT AGREEMENT DRC2003-00858 WITH
FOOTHILL CROSSING, LLC, TO ESTABLISH A PROCESS
FOR FINANCING THE CONSTRUCTION OF DAY CREEK
BOULEVARD WITHIN THE FOOTHILL CROSSING SHOPPING
CENTER, LOCATED ON THE SOUTHWEST AND SOUTHEAST
CORNERS OF DAY CREEK AND FOOTHILL BOULEVARDS
AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA
GOVERNMENT CODE FOR REAL PROPERTY DESCRIBED
HEREIN, AND MAKING FINDINGS IN SUPPORT THEREOF -
APN: 0210-082-53 THRU 57.
A. RECITALS.
(i) California Government Code Section 65864 now 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 developments 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 pianning, and reduce the economic costs of
development."
(ii) California Government Code Section 65865 provides, in pertinent part, as
follows:
"Any city may enter into a Development Agreement with any person
having a legal or equitable interest in real property for the
development of such property as provided in this article..."
(iii) California Government Code Section 65865.2 provides, in part, as follows:
Ordinance No. 718
Page 2 of 44
"A Development Agreement shall specify the duration of the
Agreement, the permitted uses of the property, the density of 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 of intensity of development set forth in the
Agreement..."
(iv) Attached to this Ordinance, marked as Exhibit "A" and incorporated herein
by this reference is proposed Development Agreement DRC2003-00858,
concerning that property located at the southwest and southeast corners of
Day Creek and Foothill Boulevards, and as legalty 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."
(v) On September 10, and continued to September 24, 2003, 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 the adoption of
this Resolution No. 03-132.
(vi) On October 15, 2003, the City Council of the City of Rancho Cucamonga
conducted a duly noticed public hearing concerning the request.
(vii) 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 City Council hereby specifically finds that all the facts set
forth in the Recitals, Part A, of this Ordinance are true and correct.
SECTION 2: Prior to the adoption of this Ordinance, this Council has reviewed
the Initial Study Parts I and II, the Development Agreement, and
certified the Mitigated Negative Declaration in compliance with the
California Environmental Quality Act of 1970, as amended, and
the Guidelines promulgated thereunder.
Ordinance No. 718
Page 3 of 44
SECTION 3: Based upon substantial evidence presented during the above-
referenced public hearings on October 15, 2003, including written
and oral staff reports, together with public testimony, this Council
hereby specifically finds as follows:
a) The location, design, and proposes uses set fodh in this
Development Agreement are compatible with the character of
existing development in the vicinity.
b) The Development Agreement conforms to the General Plan of
the City of Rancho Cucamonga.
SECTION 4: It is expressly found that the public necessity, general welfare, and
good zoning practice require the approval of the Development
Agreement.
SECTION 5.: This Council hereby approves Development Agreement
DRC2003-00858, attached hereto as Exhibit "A."
SECTION 6: The Mayor shall sign this Ord'i~an~e and the Cii~/ 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.
Please see the following page
for formal adoption, certification and signatures
Ordinance No. 718
Page 4 of 44
PASSED, APPROVED, AND ADOPTED this 5th day of November 2003.
AYES: Gutierrez, Howdyshell, Kudh, Williams
NOES: None
ABSENT: Alexander
ABSTAINED: None
William J. ,~xa"h'~er, M~yor
/
ATTEST:
Debra J. Adam~,?CMC, City Clerk
I, DEBRA J. ADAMS, 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 15*h day of October 2003, and was
passed at a Regular Meeting of the City Council of the City of Rancho Cucamonga held on the
5th day November of 2003.
Executed this 6th day of November 2003, at Rancho Cucamonga, California.
D~bra J. Ada~lM-~, City Cle~'k --
Ordinance No. 718
Page 5 of 44
RECORDING REQUESTED BY RECORDING FEES EXEMPT DUE TO
AND WHEN RECORDED MAIL TO; GOVERNMENT CODE SECTION 27383
City of Rancho Cucamonga
10500 Civic Center Drive
Post Office Box 807 City Clerk
Rancho Cucamonga, California 91729-0907
Attention: City Clerk
Space Above Line For Recorder's Use Only)
DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA
AND FOOTHILL CROSSING, LLC
EXHIBIT "A"
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TABLE OF CONTENTS
Page
SECTION I. DEFINITIONS ................................................................................................... 4
SECTION II. BENEFITS TO CiTY ........................................................................................ 5
SECTION Ill. PROJECT DEVELOPMENT ............................................................................5
A. Scope of Project and Permitted Uses ....................................................................... 5
B. Rules, Regulations and Official Policies ................................................................. 5
1. Applicable Rules .......................................................................................... 5
2. Conflicting Enactments ................................................................................ 6
C. Future Approvals ..................................................................................................... 6
D. Permitted Conditions ............................................................................................... 7
E. Term of Map(s) and Other Project Approvals ......................................................... 7
F. Moratorium .............................................................................................................. 7
G. Vesting of Owner's Rights ....................................................................................... 8
H. Development Agreement/Project Approvals ........................................................... 8
SECTION IV. OWNER'S OBLIGATIONS ............................................................................. 8
A. Day Creek Boulevard ............................................................................................... 8
B. Payment of Prevailing Wages .................................................................................. 9
C. Limitations on Owner's Obligations to Develop ................................................... 10
SECTION V. CITY'S OBLIGATIONS ................................................................................. 10
A. Reimbursement ...................................................................................................... 10
B. Letter of Intent from Anchor Store ........................................................................ 1 I
C. Lease with Anchor Store ........................................................................................ 11
D. Traffic Impact Fees ................................................................................................ 12
E. Landscape Areas .................................................................................................... 14
SECTION VI. COOPERATION/IMPLEMENTATION ........................................................ 14
A, Further Assurances; Covenant to Sign Documents ............................................... 14
B. Processing During Third Party Litigation .............................................................. 15
C. Defense of Agreement ........................................................................................... 15
SECTION VI]. GENERAL PROVISIONS .............................................................................. 15
A. Covenants Run with the Land ................................................................................ 15
B. Transfers and Assignments .................................................................................... 16
1. Right to Assign .......................................................................................... 16
2. Liabilities Upon Transfer ........................................................................... 16
C. Mortgagee Protection ............................................................................................. 17
D. Statement of Compliance ....................................................................................... 18
E. Default .................................................................................................................... 18
F. Annual Review ....................................................................................................... 19
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Page 7 of 44
G. Legal Action ........................................................................................................... 20
H. Waiver; Remedies Cumulative .............................................................................. 20
I. Future Litigation Expenses .................................................................................... 21
1. Payment to Prevailing Party ....................................................................... 21
2. Scope of Fees ............................................................................................. 21
J. Term .................................................................................................................... 22
K. Permitted Delays; Supersedure by Subsequent Laws ............................................ 23
1. Permitted Delays ........................................................................................ 23
2. Supersedure by Subsequent Laws .............................................................. 23
L. Amendment of Agreement ..................................................................................... 24
M. Operating Memoranda ........................................................................................... 24
SECTION VI]I. MISCELLANEOUS ....................... ....25
A. Negation of Partnership ......................................................................................... 25
B. No Third Party Beneficiary .................................................................................... 25
C. Entire Agreement ..................: ................................................................................ 25
D. Severability ............................................................................................................ 25
E. Construction of Agreement .................................................................................... 26
F. Section Headings ................................................................................................... 26
G. Applicable Law ...................................................................................................... 26
H. Notices ................................................................................................................... 26
I. Time is of the Essence ........................................................................................... 27
J. Recordation ............................................................................................................ 27
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DEVELOPMENT AGREEMENT
BY AND BETWEEN THE CITY OF RANCHO CUCAMONGA
AND FOOTHILL CROSSING, LLC
THIS DEVELOPMENT AGREEMENT ("Agreement") is made and entered into
as of this'XlSl~ dayof 'i'~5~ ,2003, by and between the C1TY OF RANCHO
CUCAMONGA, a municipal corporation and general law city ("City"), and FOOTHILL
CROSSING, LLC., a California limited liability company ("Owner").
WITNESSETH:
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, 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. California Government Code Sections 65864-65869.5 (the "Development
Agreement Statute") were therefore enacted authorizing a municipality to enter into binding
development agreements with persons having legal or equitable interests in real property.
C. Owner has a legal or equitable interest in certain real property that is
approximately 60 acres in size and located on the southeast and southwest comers of Foothill
Boulevard and Day Creek Boulevard in the City and more particularly described in Exhibit "A,"
attached hereto and incorporated herein by this reference (the "Property"), and depicted on the
location map attached hereto and incoq:~orated by this reference as Exhibit "B."
D. Subject to the provisions of the "Project Approvals" (as defined below),
Owner's Project (as hereinafter defined) will involve the development of the Property with a
commercial shopping center to be known as the Foothill Crossing Shopping Center, as generally
depicted on the site plan attached as Exhibit "C" (the "Project").
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E. One key objective of the Project is the development of a shopping center
that is compatible to, and located on land adjacent and southwest of the Victoria Gardens
Regional Shopping Center.
F. On October 17, 2001, the City Council (the "Council"), after making
appropriate findings, certified a Final Environmental Impact Report entitled, "City of Rancho
Cucamonga 2001 General Plan FEIR" pursuant to the provisions of the California Environmental
Quality Act, such Final Environmental Impact Report being mom specifically identified as State
Clearinghouse No. 2000061027 (the "EIR"). On r~c> ,2003, the City Council adopted an
addendum to the previously certified EIR with regard to the Project Approvals and this
Agreement (the "Addendum").
G. Concurrently with adoption of the Ordinance approving this Agreement,
the City has approved General Plan Amendment GPA2002-00002 by City Council Resolution
No. Xr~ ("General Plan Amendment"), Development Code Amendment DCA20003-00616 by
City Council Ordinance No. 're, e, ("Development Code Amendment"), Conditional Use Permit
and D~velopment Review DRC2002-00839, with Conditions of Approval, by City Council
Resolution No. T~51) ("Conditional Use Permit" and "Development Review") and Tentative
Parcel Map No. SUBTPM 16033, with Conditions of Approval, by City Council Resolution No.
'rgb ("Tentative Parcel Map"). A depiction of the Tentative Parcel Map is attached hereto and
incorporated herein as Exhibit "D." (Collectively, the General Plan Amendment, Development
Code Amendment, Conditional Use Permit, Development Review, and Tentative Parcel Map are
hereinafter referred to as the "Project Approvals".)
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H. Development of the Project will further the comprehensive planning
objectives contained within City's General Plan, as amended, and will result in public benefits,
including, among others, the following:
I. Fulfilling long-term economic and social goals for City and the
community;
2. Providing fiscal benefits to City's General Fund;
3. Creating a more diverse economic base;
4. Providing both short-term construction employment and long-term
permanent employment within City;
5. Phasing the constmction of public infrastructure improvements
with private development;
6. Constructing roadway improvements on the Property consistent
with, and as required by, the Circulation Element of the City's General Plan; and
7. Significantly enhance the possibility that the goals of the General
Plan will be realized, including the developruent of another commercial center, adjacent to the
Victoria Gardens Regional Shopping Center, that will substantially benefit the community.
I. For the reasons recited herein, City has determined that the Project is a
development for which a development agreement is appropriate under the Development
Agreement Statute.
J. The Council has determined that this Agreement is consistent with the
General Plan and specifically has determined that this Agreement is fair, just and reasonable, and
City has concluded that the economic interests of its citizens and the public health, safety and
welfare will be best served by entering into this Agreement.
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Ordinance No. 718
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K. The Planning Commission of City (the "Planning Commission") held a
duly noticed public heating on this Agreement on September 10, 2003.
L. The Council, after a duly noticed hearing, adopted Ordinance No. x
approving this Agreement, which ordinance will become effective on -r~ (the
"Effective Date").
NOW, THEREFORE, with reference to the foregoing recitals and in
consideration of the mutual promises, obligations and covenants herein contained, the parties
hereto agree as follows:
SECTION I. DEFINITIONS.
The following terms shall have the meanings defined for such terms in the
sections set forth below:
Term Section VII.J.
Addendum Recital F
Agreement Introduction
Anchor Store Section V.B.
Applicable Rules Section IlI.B. 1.
Channel Extension Segment Section IV.A,
City Introduction
Conditional Use Permit Recital G
Council Recital F
Day Creek Boulevard Improvements Section IV.A.
Development Agreement Statute Recital B
Development Code Amendment Recital G
Effective Date Recital L
EIR Recital G
Future Approvals Section m.C.
General Plan Recital E
General Plan Amendment Recital G
Lease Agreement Section V.C.
Letter of Intent Section V.C.
Ministerial Approvals Section VI,B.
Mortgagee Section VII.C.
Notice of Non-Compliance Section VII.F.
Owner Introduction
Permanent Closure Section VII.J.
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Planning Commission Recital K
Primary Extension Segment Section 1V.A.
Project Recital D
Project Approvals Recital G
Property Recital C
Required Occupancy Date Section V.D.2.
Subsequent Rules Section ]]].B.2.
Tentative Parcel Map Recital O
Term Section VII.J.
Traffic Impact Fees Section V.D.
Vested Rights Section EI.H.
SECTION II. BENEFITS TO CITY.
In consideration of the benefits resulting from this Project, including, but not
limited to, the development of a commercial shopping center, improvements to significant
roadways, including a portion of Day Creek Boulevard, the diversification of the City's
economic base, and the increase in short-term and long-term employment, all of which will
provide a significant overall benefit to City, City has agreed to enter into this Agreement.
SECTION III. PRO~][ECT DEVELOPMENT.
A. Scope of Proiect and Permitted Uses. The parties hereby agree that, for the term
of this Agreement, the permitted uses, the density and intensity of use, the maximum height and
size of proposed buildings, provisions for reservation or dedication of land for public purposes
and location of public improvements, shall be those set forth in the Project Approvals and the
"Applicable Rules" (as hereinafter defined). The term "Project" specifically excludes the Day
Creek: Boulevard Improvements (as hereinafter defined).
B. Rules, Regulations and Official Policies.
1. Applicable Rules. The parties hereby agree that, for the term of this
Agreement, the roles, regulations and official policies governing permitted uses, governing
density, and governing design, improvement and specifications applicable to development of the
Property shall be those roles, regulations and official policies in force at the time of the Effective
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Ordinance No. 718
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Date, including, without limitation, the Project Approvals (collectively, the "Applicable Rules").
Notwithstanding the foregoing, nothing in this Agreement shall preclude City from applying
changes occurring from time to time in the Uniform Building Code, Uniform Electrical Code,
Uniform Fire Code, Uniform Mechanical Code, or Uniform Plumbing Code, provided that such
changes am generally applicable to all property in City.
On the Effective Date, City and Owner shall identify two identical sets of
the Applicable Rules, one set for City and one set for Owner, so that if it becomes necessary in
the future to refer to any of the Applicable Rules, there will be a common set of the Applicable
Rules available to both parties.
2. Conflicting Enactments. Any change in the Applicable Rules, including,
without limitation, any change in any applicable general, community plan, area or specific plan,
zoning, subdivision role or regulation, adopted or becoming effective after the Effective Date,
including, without limitation, any such change by means of an ordinance, initiative, resolution,
policy, order or moratorium, initiated or instituted for any reason whatsoever and adopted by the
Council, the Planning Commission or any other board, agency, commission or department of
City, or any officer or employee thereof, or by the electorate, as the case may be, which would,
absent this Agreement, otherwise be applicable to the Property and which would conflict in any
way with or be more restrictive than the Applicable Rules ("Subsequent Rules"), shall not be
applied by City m the Property. Owner, in its sole discretion, may give City written notice of its
election to have any Subsequent Rule applied to the Property, in which case such Subsequent
Rule shall be deemed to be an Applicable Rule.
C. Future Approvals. Any development of the Property shall require all
discretionary approvals required by the Applicable Rules (collectively, the "Future Approvals").
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Upon granting of any of the Future Approvals, as they may be amended from time to time, they
shall become part of the Applicable Rules, and Owner shall have a "vested right", as that term is
defined under California law, in and to such Future Approvals by virtue of this Agreement.
D. Permitted Conditions. Provided Owner's applications for any Future Approvals
are consistent with this Agreement and the Applicable Rules, City shall grant in a timely manner
the Future Approvals in accordance with the Applicable Rules and authorize development of the
Property for the uses and to the density of the Project described herein.
E. Term of Map(s) and Other Project Approvals. Pursuant to California Government
Code Sections 66452.6(a) and 65863.9, the term of any subdivision or parcel map that may be
processed on all or any portion of the Property and the term of each of the Project Approvals
shall be extended for a period of time through the scheduled termination date of this Agreement
as set forth in Section VII.J. below.
F. Moratorium. No City-imposed moratorium or other limitation (whether relating
to the rate, timing or sequencing of the development or construction of all or any part of the
Property, whether imposed by ordinance, initiative, resolution, policy, order or otherwise, and
whether enacted by the Council, an agency of City, the electorate, or otherwise) affecting parcel
or subdivision maps (whether tentative, vesting tentative or final), building permits, occupancy
certificates or other entitlements to use or service (including, without limitation, water and
sewer) approved, issued or granted within City, or portions of City, shall apply to the Property to
the extent such moratorium or other limitation is in conflict with this Agreement; provided,
however, the provisions of this Section shall not affect City's compliance with moratoria or other
limitations mandated by other governmental agencies or court-imposed moratoria or other
limitations.
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G. Vesting of Owner's Rights. The rights and entitlements granted to Owner
pursuant to this Agreement shall be and constitute "vested rights" or the equivalent of "vested
fights", as that term is defined under California law applicable to the development of land or
property and the right of a public entity to regulate or control such development of land or
property, including, without limitation, vested rights in and to building permits and certificates of
occupancy. Upon the expiration or termination of this Agreement: (1) any rights of Owner to
develop the land and use the Property shall be subject to only those rights provided by California
common law; and (2) nothing contained herein shall provide any additional rights or entitlements
to develop or use the Property beyond or in addition to that which is available in accordance with
California common law, nor shall anything in this Agreement or the termination thereof be
deemed to impair or restrict such common law rights of Owner.
H. Development AgreemenffProiect Approvals. In the event of any inconsistency
between any Project Approval and this Agreement, the provisions of this Agreement shall
control.
SECTION IV. OWNER'S OBLIGATIONS.
A. Day Creek Boulevard. Subject to the provisions of Section V of this Agreement,
and as a condition of the approval by the City of the Project, the Owner shall design and
construct the extension of Day Creek Boulevard from the south curb line of Foothill Boulevard
on the north, through the most westerly border of the Property, (a distance of approximately
2,500 feet) ("Primary Extension Segment") and from the most westerly border of the Property to
up to the west side of the intersection of the Day Creek Flood Control Channel and Day Creek
Boulevard ("Channel Extension Segment"). The Owner's obligation pursuant to this paragraph
shall include, but not be limited to, design, construction and installation of public street curbs,
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gutters, storm drains, pavement, sidewalks, landscaped medians, street lights, fire hydrants, street
utilities and traffic signals for the Primary Extension Segment and the Channel Extension
Segment (collectively, the "Day Creek Boulevard hnprovements"). Owner shall have no
obligation to: (i) construct any extension of Day Creek Boulevard outside of the boundaries of
the Property; or (ii) acquire any rights-of-way, or pay any fees or monies to the City, in
connection with the extension of Day Creek Boulevard outside the boundaries of the Property.
Nothing contained in the immediately preceding sentence shall release Owner from: (i)
constructing the Channel Extension Segment unless the County Flood Control District fails to
issue the required approvals necessary to construct the Channel Extension Segment following
written application by Owner for such approvals and payment by Owner of all required
application fees related to the Channel Extension Segment; (ii) constructing the Primary
Extension Segment to the extent any portion of that Primary Extension Segment abuts or crosses
parcels of property that are excluded from the description of the Property; or (iii) paying any
assessments for the construction of improvements to Foothill Boulevard that are required by
CFD 2001-01, as specified in City Council Resolution No. 01-181 and Agency Resolution No.
RA01-OI 1, or CFD 2003-01, as specified in City Council Resolution No. 03-037 and Agency
Resolution No. RA 03-003.
B. Payment of Prevailing Wages. The Owner shall ensure that all work of
construction and installation of the Day Creek Boulevard Improvements shall be done with the
payment of prevailing wages to the applicable work crews. The Owner shall provide sufficient
documentation, as requested by the City Engineer, to document compliance with this
requirement. The provisions of this Section W.B. shall apply only to the construction and
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Ordinance No. 718
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installation of the Day Creek Boulevard Improvements and shall not apply to the construction or
operation of the Project.
C. Limitations on Owner's Obligations to Develop. Nothing in this Agreement shall
be construed to require Owner to proceed with the construction of the Project or any buildings or
improvements in the Project. The decision to proceed with implementation or construction of
thc Project shall be in the sole discretion of the Owner. Failure of the Owner to proceed with
construction of thc Project shall not give rise to any liability, claim for damages or cause of
action against the Owner. Notwithstanding the preceding provisions of this paragraph IV.C., in
thc event Owner commences construction of the Project or any buildings or improvements in the
Project, nothing contained in this Section IV.C shall relieve Owner of the obligation to complete
thc Day Creek Boulevard Improvements or to construct its buildings and improvements in
compliance with the Project Approvals and the Applicable Rules.
SECTION V. CITY'S OBLIGATIONS.
A. Reimbursement. Subject to the provisions of Section V.B. and V.C., the City
shall reimburse the Owner on a monthly basis for the Owner's cost and expense for design and
construction of the Primary Extension Segment, up to a maximum of one million, two hundred
thousand dollars ($1.2 million). In addition, City shall reimburse Owner for the cost and expense
for design and construction of the Channel Extension Segment. Any costs incurred by Owner in
excess of one million, two hundred thousand dollars ($1.2 million) for the Primary Extension
Segment shall be the full and sole responsibility of the Owner and not City. However, Owner
shall submit monthly statements to City specifying the costs and expenses incurred during the
preceding month for the Day Creek Boulevard Improvements together with sufficient
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documentation of the expense. Upon receipt of those statements, and City's verification of the
costs and expenses, City shall pay Owner the amount owed within thirty (30) days thereafter.
B. Letter of Intent from Anchor Store. The City shall not be required to reimburse
Owner for the costs and expenses of the Day Creek Boulevard Improvements as specified in
Section V.A. unless and until the Owner provides the City with a letter of intent together with
any supplement to that letter, (which together are defined to constitute a "Letter of Intent")
executed by an "Anchor Store," as hereinafter defined, and addressed to the City wherein the
Anchor Store pledges to enter into a agreement with Owner to rent, occupy and operate for
business a retail store within the Project. The Letter of Intent shall also include a statement, in
the form acceptable to the City that guarantees to the City that as a result of becoming an Anchor
Store within the Project, it will not close any point of sale or relocation within the market area as
defined in California Health & Safety Code Section 33426.7 for a period of one year from the
date of occupancy by the Anchor Store. For purposes of this Agreement, the term "Anchor
Store" shall mean a person, group, partnership or corporation that shall rent, occupy and operate
a retail business involving land or building with a gross lease area of 100,000 square feet or
greater within the Project. Pr/or to Owner's submission to City of a signed lease agreement
between the Owner and the Anchor Store, the maximum reimbursement by City of Owner's
costs and expenses of the Primary Extension Segment pursuant to this paragraph V.B. shall not
exceed six hundred thousand dollars ($600,000).
C. Lease with Anchor Store. Within one hundred twenty (120) days after the City
has received the Letter of Intent from the Anchor Store, the Owner shall present to the City a
copy of an signed lease agreement between the Owner and the Anchor Store that provides: (i)
sufficient evidence that the Anchor Store has agreed to lease, occupy and operate as a Anchor
Ordinance No. 718
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Store within the Pmject; and (ii) contains a guarantee that as a result of becoming an Anchor
Store within the Project, the Anchor Store will not close any point of sale or relocation within the
market area as defined in California Health & Safety Code Section 33426.7 for a period of one
year from the date of occupancy by the Anchor Store (the "Lease Agreement"). During the
intervening time between the submission to the City of the Letter of Intent and the submission to
City of the Lease Agreement, the City shall pay Owner for any monthly costs and expenses
incurred for the Day Creek Boulevard hnprovements, if any, in accordance with the terms of
Section V.A. If City has not received the Lease Agreement within one hundred twenty (120)
days after receipt of the Letter of Intent, City shall not be obligated to pay any outstanding
statements from Owner for the Day Creek Boulevard Improvements and Owner shall promptly,
and no later than thirty (30) days thereafter, reimburse City for any and all payments made to
Owner for the Reimbursable Improvements pursuant to Section V.A. The City Manager may,
but is not required to, approve reasonable extensions to the time periods specified for the
Owner's actions that are specified in this paragraph, up to a maximum of sixty (60) days for any
such deadline.
D. Traffic Impact Fees.
1. Upon receipt by City of the Letter of Intent, Owner's obligation to pay six
hundred thousand dollars ($600,000) of the total amount of City-Wide System Fees for
Transportation l~velopment, as defined in Chapter 3.28 of the Rancho Cucamonga Municipal
Code (the "Traffic Impact Fees") for the Project shall be deferred until the date of occupancy of
the Anchor Store. The maximum amount of Traffic Impact Fees for the Project that shall be
deferred pursuant to this paragraph V.D. shall be six hundred thousand dollars ($600,000) and
any Traffic Impact Fees required for the Project in excess of six hundred thousand ($600,000)
Ordinance No. 718
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shall be due and payable by Owner in accordance with the terms and conditions of Chapter 3.28
of the Rancho Cucamonga Municipal Code. Owner shall not be entitled to, and City shall have
no obligation to provide, any credit, waiver or offset to the Traffic Impact Fees required for the
Project as a result of the Owner's design and construction of the Day Creek Boulevard
Improvements.
2. If the City has received a copy of the Lease Agreement but the Anchor
Store has not commenced occupancy within the Project within two (2) years of the Effective
Date of this Agreement, (subject to any extension in accordance with Section VII.K. 1.), (the
"Required Occupancy Date"), Owner shall, within thirty days (30) days following the Required
Occupancy Date, pay the City the full amount of Traffic Impact Fees that would otherwise be
owing for the Project based on the rate of fees that was in effect at the time the fees would have
originally been due and payable. In the event the Owner is required to pay the full amount of
Traffic lrapact Fees pursuant to this paragraph V.D.2., Owner shall not be entitled to, and City
shall have no obligation to provide, any credit, waiver or offset to the Traffic Impact Fees
required for the Project as a result of the Owner's design and construction of the Day Creek
Boulevard Improvements. The Owner's Obligations under this paragraph shall survive the
termination or expiration of this Agreement.
3. Upon occupancy of Anchor Store within the Project, Owner's obligation
to pay six hundred thousand dollars ($600,000) of Traffic Impact Fees for those buildings within
the Project, shall be deferred for an additional five (5) years, measured from the date of
occupancy of the Anchor Store.
4. If the Anchor Store has continued to occupy and remain open for business
within the Project for five (5) years following occupancy (subject to permitted interruptions in
Ordinance No. 718
Page 21 of 44
accordance with Section VII. K. 1 ), Owner shall be released from all obligations to pay six
hundred thousand dollars ($600,000) of the total Traffic Impact Fees for all buildings in the
Project.
5. If the Anchor Store fails to occupy and remain open for business for a full
five (5) years after occupancy within the Project, Owner shall, within thirty days (30) days
thereafter, pay the City the full amount of Traffic Impact Fees that would otherwise be owing for
the Project based on the rate of fees that was in effect at the time the fees would have originally
been due and payable. In the event the Owner is required to pay the full amount of Traffic
Impact Fees pursuant to this paragraph V.D.5., Owner shall not be entitled to, and City shall
have no obligation to provide, any credit, waiver or offset to the Traffic Impact Fees required for
the Project as a result of the Owner's design and construction of the Day Creek Boulevard
Improvements. The Owner's Obligations under this paragraph shall survive the termination or
expiration of this Agreement.
E. Landscape Areas. City or a City landscaping and lighting or similar district shall
assume ownership and maintenance of the median strip within Day Creek Boulevard within the
Project boundaries upon acceptance and final inspection of the Day Creek Boulevard
Improvements. Upon such assumption of ownership by the City or district, Owner shall have no
further responsibility or obligation to repair or maintain the median strip.
SEC'FION VI. COOPERATION/IMPLEMENTATION.
A. Further Assurances; Covenant to Sign Documents. Each party shall take all
actions and do all things, and execute, with acknowledgment or affidavit, if required, any and all
documents and writings, that may be necessary or proper to achieve the purposes and objectives
of this Agreement.
Resolution No. 718
Page 22 of 44
B. Processing During Third Party Litigation. The filing of any third party lawsuit(s)
against City or Owner relating to this Agreement, the Project Approvals or to other development
issues affecting the Property shall not delay or stop the development, processing or construction
of the Project, approval of the Future Approvals, or issuance of "Ministerial Approvals" (as
hereinafter defined), unless the third party obtains a court order preventing the activity. For
purposes of this Agreement the term "Ministerial Approvals" shall be defined to mean approvals
requiring the determination of conformance with the Applicable Rules, including, without
limitation, site plans, design review, development plans, land use plans, grading plans,
improvement plans, building plans and specifications, and ministerial issuance of one or more
final maps, zoning clearances, grading permits, improvement permits, wall permits, building
permits, lot line adjustments, encroachment permits, conditional and temporary use permits,
certificates of use and occupancy and approvals and entitlements and related matters as may be
necessary for the completion of the development of the Property.
C. Defense of Agreement. City shall take all actions which are necessary or
advisable to uphold the validity and enforceability of this Agreement. If this Agreement is
adjudicated or determined to be invalid or unenforceable, City agrees, subject to all legal
requirements, to consider modifications to this Agreement proposed by Owner to render it valid
and enforceable to the extent permitted by applicable law.
SECTION VII. GENERAL PROVISIONS.
A. Covenants Run with the Land. All of the provisions, agreements, rights, powers,
standards, terms, covenants and obligations contained in this Agreement shall be binding upon
the parties and their respective heirs, successors (by merger, reorganization, consolidation or
otherwise) and assigns, devisees, administrators, representatives, lessees, and all other persons
11231-O00B745445vlO.dec 15
Ordinance No. 718
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acquiring the Property, or any portion thereof, or any interest therein, whether by operation of
law or in any manner whatsoever, and shall inure to the benefit of the parties and their respective
heirs, successors and assigns. All of the provisions of this Agreement shall constitute covenants
running with the land.
B. Transfers and Assignments.
1. Right to Assign. Owner shall have the right to sell, assign or transfer all
or portions of the real property comprising the Property to any person at any time during the term
of this Agreement.
2. Liabilities Upon Transfer. Upon the delegation of all duties and
obligations and the sale, transfer or assignment of all or any portion of the Property, Owner shall
be released from its obligations under this Agreement with respect to the Property, or portion
thereof, so transferred arising subsequent to the effective date of such transfer if (i) Owner has
provided to City ten days' written notice of such transfer and (ii) the transferee has agreed in
writing to be subject to all of the provisions hereof applicable to the portion of the Property so
transferred. Upon any transfer of any portion of the Property and the express assumption of
Owner's obligations under this Agreement by such transferee, City agrees to look solely to the
transferee for compliance by such transferee with the provisions of this Agreement as such
provisions relate to the portion of the Property acquired by such transferee. A default by any
transferee shall only affect that portion of the Property owned by such transferee and shall not
cancel or diminish in any way Owner's rights hereunder with respect to any portion of the
Property not owned by such transferee. The transferee shall be responsible for the reporting and
annual review requirements relating to the portion of the Property owned by such transferee, and
Ordinance No. 718
Page 24 of 44
any amendment to this Agreement between City and a transferee shall only affect the portion of
the Property owned by such transferee.
C. Mortgagee Protection. The parties hereto agree that this Agreement shall not
prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or
other security device securing financing with respect to the Property. City acknowledges that the
lender(s) providing such financing may require certain Agreement interpretations and
modifications and agrees upon request, from time to time, to meet with Owner and
representatives of such lander(s) to negotiate in good faith any such request for interpretation or
modification. City will not unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or modification is consistent with the
intent and purposes of this Agreement. Any mortgagee of a mortgage or a beneficiary of a deed
of trust ("Mortgagee") of the Property shall be entitled to the following rights and privileges:
1. Neither entering into this Agreement nor a breach of this Agreement shall
defeat, render invalid, diminish, or impair the lien of any mortgage or deed of trust on the
Property made in good faith and for value.
2. If City timely receives a request from a Mortgagee requesting a copy of
any notice of default given to Owner under the terms of this Agreement, City shall provide a
copy of that notice to the Mortgagee within ten days of sending the notice of default to Owner.
The Mortgagee shall have the right, but not the obligation, to cure the default duriag the
remaining cure period allowed such party under this Agreement.
3. Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such
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foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement;
provided, however, in no event shall such Mortgagee be liable for any defaults or monetary
obligations of Owner arising prior to acquisition of title to the Property by such Mortgagee,
except that any such Mortgagee or its successors or assigns shall not be entitled to a building
permit or occupancy certificate until all delinquent and current fees and other monetary
obligations due under this Agreement for the Property, or portion thereof, acquired by such
Mortgagee have been paid to City.
D. Statement of Compliance. Within thirty days following any written request which
either City or Owner may make from time to time, the other shall execute and deliver to the
requesting party a statement certifying that to the City's knowledge: (1) this Agreement is
unmodified and in full rome and effect or, if them have been modifications hereto, that this
Agreement is in full force and effect, as modified, and stating the date and nature of such
modifications; (2) them are no current uncured defaults under this Agreement or specifying the
dates and nature of any such defaults; and (3) any other reasonable information requested. The
failure to deliver such statement within such time shall be conclusive upon the party which fails
to deliver such statement that this Agreement is in full rome and effect without modification and
that there are no uncured defaults in the performance of the requesting party. The City Manager
shall be authorized to execute any such statement.
E. Default. Failure by City or Owner to perform any term or provision of this
Agreement for a period of thirty days from the receipt of written notice thereof from the other
shall constitute a default under this Agreement, subject to extensions of time by mutual consent
in writing. Said notice shall specify in detail the nature of the alleged default and the manner in
which said default may be satisfactorily cured, ff the nature of the alleged default is such that it
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Ordinance No. 718
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cannot reasonably be cured within such 30-day period, the commencement of the cure within
such time period and the diligent prosecution to completion of the cure shall be deemed a cure
within such period.
Subject to the foregoing, after notice and expiration of the 30-day period without
cure, the notifying party, at its option, may institute legal proceedings pursuant to this Agreement
and/or give notice of intent to terminate this Agreement pursuant to Government Code Section
65868. Following such notice of intent to terminate, the matter shall be scheduled for
consideration and review by the Council within thirty calendar days in the manner set forth in
Government Code Sections 65867 and 65868. Following consideration of the evidence
presented in said review before the Council and a determination that a default exists, the party
alleging the default by the other party may give written notice of termination of this Agreement
to the other party.
F. Annual Review. Pursuant to Government Code Section 65865.1, throughout the
term of this Agreement, good faith compliance with the terms of this Agreement by Owner shall
be reviewed by the Planning Commission at the regularly scheduled Planning Commission
meeting next following each annual anniversary of the Effective Date. If as a result of such
review, City reasonably determines, on the basis of substantial evidence presented at such
meeting, that Owner has not complied in good faith with the terms and conditions hereof, City
shall provide written notice thereof ("Notice of Non-Compliance"), stating in specific detail and
specific reasons for such finding. After City delivers the Notice of Non-Compliance, Owner
shall have the right to cure such non-compliance as provided in Section VI].E. above. In the
event that Owner does not timely cure the non-compliance after a Notice of Non-Compliance is
delivered by City or, if during the period which Owner must cure such default, Owner ceases to
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Ordinance No. 718
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make reasonable efforts to effect such cure, City may proceed to terminate this Agreement on ten
days' prior whtten notice to Owner in accordance with the termination procedure set forth in
Section VII.E. above.
G. Legal Action. Any party may, in addition to any other rights or remedies,
institute legal action to cure, correct or remedy any default, enforce any covenant or agreement
herein, enjoin any threatened or attempted violation hereof, or enforce by specific performance
the obligations and rights of the parties hereto.
Pursuant to Code of Civil Procedure Section 638, et seq., all legal actions shall be
heard by a referee who shall be a retired judge from either the San Bernardino County Superior
Court, the California Court of Appeal, the United States District Court or the United States Court
of Appeals, provided that the selected referee shall have experience in resolving land use and real
property disputes. Owner and City shall agree upon a single referee who shall then try all issues,
whether of fact or law, and report a finding and judgment thereon and issue all legal and
equitable relief appropriate under the circumstances of the controversy before such referee. If
Owner and City are unable to agree on a referee within ten days of a written request to do so by
either party hereto, either party may seek to have one appointed pursuant to Code of Civil
Procedure Section 640. The cost of such proceeding shall initially be borne equally by the
parties. Any referee selected pursuant to this Section VII.G. shall be considered a temporary
judge appointed pumuant to Article 6, Section 21 of the California Constitution.
H. Waiver; Remedies Cumulative. Failure by City or Owner to insist upon the strict
performance of any of the provisions of this Agreement, irrespective of the length of time for
which such failure continues, shall not constitute a waiver of the right to demand strict
compliance with this Agreement in the future. No waiver by City or Owner of a default or
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Ordinance No. 718
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breach of any other party shall be effective or binding upon it unless made in writing, and no
such waiver shall be implied from any omission by City or Owner to take any action with respect
to such default or breach. No express written waiver of any defaults or breach shall affect any
other default or breach, or cover any other period of time, other than any default or broach and/or
period of time specified in such express waiver. One or more written waivers of a default or
broach under any provision of this Agreement shall not be a waiver of any subsequent default or
broach, and the performance of the same or any other term or provision contained in this
Agreement. Subject to notice of default and opportunity to cure under Section VII.E., all of the
remedies permitted or available under this Agreement, at law or in equity, shall be cumulative
and alternative, and invocation of any such right or remedy shall not constitute a waiver or
election of remedies with respect to any other permitted or available right or remedy.
I. Futura Litigation Expenses.
1. Payment to Prevailing Party. If City or Owner brings an action or
proceeding (including, without limitation, any motion, order to show cause, cross-complaint,
countemlalm, or third-party claim) by mason of defaults, breaches, tortious acts, or otherwise
arising out of this Agreement, the prevailing party in such action or proceeding shall be entitled
to its costs and expenses of suit including, but not limited to, reasonable attorneys' fees and
expert witness fees.
2. Scope of Fees. Attorneys' fees under this Section shall include attorneys'
fees on any appeal and, in addition, a party entitled to attorneys' fees shall be entitled to all other
reasonable costs and expenses incurred in connection with such action. In addition to the
foregoing award of attorneys' fees to the prevailing party, the prevailing party in any lawsuit
shall be entitled to its attorneys' fees incurred in any post-judgment proceedings to collect or
Ordinance No. 718
Page 29 of 44
enfome the judgment. This provision is separate and several and shall survive the merger of this
Agreement into any judgment on this Agreement.
J. Term. Unless the "Term" (as hereinafter defined) of this Agreement is otherwise
terminated, modified or extended by circumstances set forth in this Agreemexg or by mutual
consent of the parties, the duration of this Development Agreement (the "Term") shall be from
the Effective date of this Agreement to the earliest to occur of the following dates:
1. Thirty (30) days following the Required Occupancy Date if the Anchor
Store has not commenced occupancy within the Project on or prior to the Required Occupancy
Date.
2. Thirty (30) days following the permanent closure, as such term is
hereinafter defined, of the Anchor Store if the Anchor Store has commenced occupancy within
the Project on or before the Required Occupancy Date but permanently closes for business
within the Project within five (5) years after its initial occupancy; or
3. Thirty (30) days following the fifth (5th) anniversary of the actual date of
initial occupancy of the Anchor Store if the Anchor Store has commenced occupancy within the
Project and continued to occupy and remain open for business within the Project for a period of
five (5) years.
For purposes of this Section VII.J, the terms "permanent closure" and
"permanently closes" shall mean the cessation or ceasing, respectively, by the Anchor Store of
the sale of goods and services of the same general type and character as originally conducted
upon initial occupancy of the Project, which cessation or ceasing lasts more than seven calendar
days and is caused by any action or event other than an event specified in Section VII.K. 1. If
the cessation described herein is caused by an event listed in Section VII.K 1, and has a duration
I 1231-0001\745445v I 0.doc 22
Ordinance No. 718
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of mom than six (6) months, the Anchor Store shall be deemed to be permanently closed,
whether or not it thereafter reopens for business. The terms "permanent closure" and
"permanent closing" shall also include a reduction of more than five percent (5%) of the total
square footage of the building that was occupied by the Anchor Store on the date the Anchor
Store initially opened for business.
K. Permitted Delays; Supersedure by Subsequent Laws.
1. Permitted Delays. In addition to any specific provisions of this
Agreement, performance of obligations hereunder shall be excused and the Term of this
Agreement shall be similarly extended during any period of delay caused at any time by reason
of: acts of God such as floods, earthquakes, rites, or similar catastrophes; wars, riots or similar
hostilities; strikes and other labor difficulties beyond the party's control (including the party's
employment force); the enactment of new laws or restrictions imposed or mandated by other
governmental or quasi-governmental entities preventing this Agreement from being
implemented; litigation involving this Agreement, the Project Approvals, the Future Approvals
or the Ministerial Approvals, which directly or indirectly delays any activity contemplated
hereunder, or other causes beyond the party's control. City and Owner shall promptly notify the
other party of any delay hereunder as soon as possible after the same has been ascertained.
2. Supersedure by Subsequent Laws. If any federal or state law, made or
enacted after the Effective Date prevents or precludes compliance with one or mom provisions of
this Agreement, then the provisions of this Agreement shall, to the extent feasible, be modified
or suspended as may be necessary to comply with such new law. Immediately after enactment or
promulgation of any such new law, City and Owner shall meet and confer in good faith to
determine the feasibility of any such modification or suspension based on the effect such
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Ordinance No. 718
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modification or suspension would have on the purposes and intent of this Agreement. Owner
and/or City shall have the right to challenge the new law preventing compliance with the terms
of this Agreement, and in the event such challenge is successful, this Agreement shall remain
unmodified and in full force and effect. At Owner's sole option, the term of this Agreement may
be extended for the duration of the period during which such new law precludes compliance with
the provisions of this Agreement.
L. Amendment of Agreement. This Agreement may be amended from time to time
by mutual consent of the parties to this Agreement, in accordance with the provisions of
Government Code Sections 65867 and 65868.
M. Operating Memoranda. The provisions of this Agreement require a close degree
of cooperation between City and Owner and the refinements and further development of the
Project may demonstrate that clarifications are appropriate with respect to the details of
performance of City and Owner. If and when, from time to time, during the term of this
Agreement, City and Owner agree that such clarifications are necessary or appropriate, they shall
effectuate such clarifications through operating memoranda approved by City and Owner, which,
after execution, shall be attached hereto. No such operating memoranda shall constitute an
amendment to this Agreement requiring public notice or hearing. The City Attorney and City
Manager shall be authorized to make the determination whether a requested clarification may be
effectuated pursuant to this Section or whether the requested clarification is of such a character
to constitute an amendment hereof pursuant to Section VII.L. The City Manager may execute
any operating memoranda hereunder without Council action.
I 1231-0001 \745445v I 0.doc 24
Ordinance No. 718
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SECTION VHI. MISCELLANEOUS.
A. Negation of Partnership. The Project constitutes private development, neither
City nor Owner is acting as the agent of the other in any respect hereunder, and City and Owner
are independent entities with respect to the terms and conditions of this Agreement. None of the
terms or provisions of this Agreement shall be deemed to create a partnership between or among
the parties in the businesses of Owner, the affairs of City, or otherwise, nor shall it cause them to
be considered joint venturers or members of any joint enterprise.
B. No Third Party Beneficiary. This Agreement is not intended, nor shall it be
construed, to create any third-party beneficiary rights in any person who is not a party, unless
expressly otherwise provided.
C. Entire Agreement. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
D. Severability. Invalidation of any of the provisions contained in this Agreement,
or of the application thereof to any person, by judgment or court order shall in no way affect any
of the other provisions hereof or the application thereof to any other person or circumstance, and
the same shall remain in full force and effect, unless enforcement of this Agreement, as so
invalidated, would be unreasonable or inequitable under all the circumstances or would frustrate
the purposes of this Agreement and the rights and obligations of the parties hereto.
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Ordinance No. 718
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E. Construction of Agreement. The provisions of this Agreement and the Exhibits
hereto shall be construed as a whole according to their common meaning and not strictly for or
against Owner or City and consistent with the provisions hereof, in order to achieve the
objectives and purposes. Wherever required by the context, the singular ~hall include the plural
and vice versa, and the masculine gender shall include the feminine or neuter genders, or vice
versa.
F. Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
G. Applicable Law. This Agreement shall be construed and enforced in accordance
with the laws of the State of California.
H. Notices. Any notice shall be in writing and given by delivering the same in
person or by sending the same by registered, or certified mail, return receipt requested, with
postage prepaid, by overnight delivery, or by facsimile to the respective mailing addresses, as
follows:
City: City of Rancho Cucamonga
10500 Civic Center Drive
P.O. Box 807
Rancho Cucamonga, CA 91729-0807
Attention: City Manager
Telephone: (909) 477-2700
Facsimile: (909) 477-2849
Copy to: Richards, Watson & Gershon
Attorneys at Law
Number One Civic Center Circle
P. O. Box 1059
Brea, CA 92822-1059
Attention: James L. Markman, Esq.
Telephone: (213) 626-8484
Facsimile: (714) 990-6230
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Ordinance No. 718
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Owner: Foothill Crossing LLC.
1161 San Vicente Boulevard, Suite 500
Los Angeles, California 90049
Attention: Michael Lawson
Telephone: (310) 207-8600 ext. 126
Facsimile: (310) 207-2288
Copy to: Law Offices of Richard A. Lawrence
5000 North Parkway Caiabasas, Suite 210
Calabasas, California 91302
Attention: Richard Lawrence, Esq.
Telephone: (818) 591-5900
Facsimile: (818) 227-5550
Either City or Owner may change its mailing address at any time by giving written notice of such
change to the other in the manner provided herein at least ten days prior to the date such change
is effected. All notices under this Agreement shall be deemed given, received, made or
communicated on the earlier of the date personal delivery is effected or on the delivery date or
attempted delivery date shown on the return receipt, air bill or facsimile.
I. Time is of the Essence. Time is of the essence of this Agreement and of each and
every term and condition hereof.
J. Recordation. In order to comply with Section 65868.5 of the Government Code,
the parties do hereby direct the City Clerk to record a copy of this Agreement against the
Property with the County Recorder of S an Bernardino County within ten (10) days after the
Effective Date.
1N WITNESS WHEREOF, Owner and City have executed this Agreement as of the date first
hereinabove written.
"City"
CITY OF RANCHO CUCAMONGA,
a municipal corporation
By:
Mayor
I 1231-0001 \745445 v I 0.doc 27
Ordinance No. 718
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ATI~EST:
City Clerk
Approved as to Form:
By:.
City Attorney
[Signatures continue]
I 1231 ~0001\745445v !0.doc 28
Ordinance No. 718
Page 36 of 44
FOOTHILL CROSSING, LLC,
a California limited liability company
By: GMS Holding, Inc.,
a California corporation, its
Managing Member
~ /'~a~. Safady
~ It~resident
By: J
I 1231-0001 \745445 v9.doc 28
Ordinance No. 718
Page 37 of 44
STATE OF CALIFORNIA )
COUNTY OF ~.~ ~ss'
On ~1~9c ,20~r-before me, the undersigned, a Notary Public in and
for said__County and State, personally appeared
C.~)k'O_.~l VL ~ , personally known to me (-tn
~, ................................... : ........ e) to be the perso~ whose name~ ~s, __
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/E__er!tbeSr authorized capacity(4~s-), and that by his~.~er/t~e.~v signature.6~'on the instmmant
the person~, or the entity upon behalf of which the perso~ acted, executed the within
instrument.
WITNESS my hand and official seal.
~¥' ~.~a~ Com~ # 1245.311 ' ·
~ Rol~/Pot~-c_.araoa~ ~ Not~blic
CO~ O~ )
On ,20__, before me, the undersigned, a Notary Public in and
for said County and State, personally appeared
, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are
subscribed to the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their authorized.capacity(les), and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed the within
insLrument.
WITNESS my hand and official seal.
Notary Public
I 1231-0001\745445vg.doe 29
Ordinance No. 718
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EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
[Note: The description of the property listed below is to be replaced with a proper form of legal
description which shall be inserted to replace this page prior to execution and recording of this
Agreement.]
Lot A and Parcels 2 through 13 inclusive as shown on Tentative Parcel Map No. 16~)33.
l1231-0001~745445v10,doc Exhibit A
Ordinance No. 718
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EXHIBIT "B"
LOCATION MAP
11231-O~Ol\745445vlO.doc ExhibJtB
LOCATION MAP
FOOTHILL
t
LEGEND
Subject Site- Proposed Shopping
Center 0
Major Streets '0 ~
City Boundary m ·
00
Ordinance No. 718
Page 41 of 44
EXHIBIT "C"
SI I'P~ PLAN
1123 l-O00IW45445v10.doc Exhibit C
Ordinance No. 718
Page 43 of 44
EXHIBIT "D"
TENTATIVE MAP
I 1231-0001\745445vl 0.doc Exhibit D
TENTATIVE PARCEL MAP NO. 160~3
BOULEVARD (ROUTE 66) ,,_'.'.'.,.
/
~ ~. ARROW '~IIOHWAY ~ Z