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HomeMy WebLinkAbout03-132 - Resolutions RESOLUTION NO. 03-132 A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, RECOMMENDING ADOPTION OF AN ORDINANCE AUTHORIZING THE CITY OF RANCHO CUCAMONGA TO ENTER INTO DEVELOPMENT AGREEMENT DRC2003-00858, FOR A PROPOSED SHOPPING CENTER, LOCATED AT THE SOUTHWEST AND SOUTHEAST CORNERS OF FOOTHILL BOULEVARD AND DAY CREEK BOULEVARD,WITHIN THE VICTORIA COMMUNITY PLAN,AS PROVIDED FOR IN SECTION 65864 OF THE CALIFORNIA GOVERNMENT CODE, FOR REAL PROPERTY DESCRIBED HEREIN, AND MAKING FINDINGS IN SUPPORT THEREOF. A. Recitals. 1. Foothill Crossing, LLC, filed an application for Development Agreement No. DRC2003-00858, as described in the title of this Resolution. Hereinafter in this Resolution, the subject Development Agreement is referred to as "the application." 2. On September 10, and continued to September 24, 2003, the Planning Commission of the City of Rancho Cucamonga conducted a duly noticed public hearing on the application and concluded said hearing on that date. 3. The subject property of the Development Agreement is legally described herein. 4. A true and correct copy of the proposed Development Agreement is attached as Exhibit "A" to the draft Ordinance. 5. The Planning Commission has reviewed and considered the associated Addendum to City of Rancho Cucamonga 2001 General Plan Final Environmental Impact Report prepared for said project. 6. All legal prerequisites prior to the adoption of this Resolution have occurred. B. Resolution. NOW, THEREFORE, it is hereby found, determined, and resolved by the Planning Commission of the City of Rancho Cucamonga as follows: 1. This Commission hereby specifically finds that all of the facts set forth in the Recitals, Part A, of this Resolution are true and correct. 2. Based upon the substantial evidence presented to this Commission during the above- referenced public hearing on September 10, and September 24, 2003, including written and oral staff reports, together with public testimony, this Commission hereby specifically finds as follows: a. The application applies to property located on the south side of Foothill Boulevard approximately 530 feet west of the 1-15 Freeway on ramp, with a street frontage of approximately 1,300 feet and lot depth of 1,700 feet, and which is presently unimproved; and b. The property to the north of the subject site, on the north side of Foothill Boulevard,is undeveloped and in zoned for commercial uses, the property to the south consists of the 1-15 Freeway, the property to the east is undeveloped and is planned for commercial uses, and the PLANNING COMMISSION RESOLUTION NO. 03-132 DRC2003-00858— FOOTHILL CROSSING, LLC September 24, 2003 Page 2 property to the west is an electrical and flood control utility corridor and is being used for plant nursery storage; and c. The application contemplates the construction of a shopping center of up to 315,000 square feet, on 60 acres of land on the southeast and southwest comers of Foothill Boulevard and Day Creek Boulevard with uses which are permitted within the Regional Related Office/Commercial district of the Victoria Community Plan; and, d. The proposed elevation designs of the major tenant is compatible with the "Route 66"/Winery architectural styles being promoted along Foothill Boulevard and the Victoria Arbors Master Plan; and, e. The parking accommodation exceeds the City s minimum standards and the inclusion of planters and trees wells is incompliance with the City's landscaping policies. 3. Based upon the substantial evidence presented to this Commission during the above- referenced public hearing and upon the specific findings of facts set forth in paragraphs 1 and 2 above, this Commission hereby finds and concludes as follows: a. The proposed use is in accord with the General Plan, the objectives of the Development Code, and the purposes of the district in which the site is located as an expansion of the commercial activities, planned and existing along Foothill and Day Creek Boulevards. b. The proposed use, together with the conditions applicable thereto, will not be detrimental to the public health, safety, or welfare or materially injurious to properties or improvements in the vicinity. C. The proposed use complies with each of the applicable provisions of the Victoria Community Plan and the Development Code. 4. An Environmental Impact Report(EIR)was certified October 17,2001 as the Final EIR for the 2001 City of Rancho Cucamonga General Plan. The Guidelines for the California Environmental Quality Act Section 15166 provides that when a Program EIR has been certified, subsequent activities in the program must be examined in light of the program EIR to determine whether an additional environmental document must be prepared. If the agency finds that no new effects could occur or no new mitigation measures would be required, the agency can approve the activity as being within the scope of the program EIR. Because the applicant has proposed modifications to the Master Plan Circulation system, an Addendum to the 2001 General Plan Final EIR was prepared, and all feasible mitigation measures developed in the Program EIR, have been incorporated into the project design. An addendum to the 2001 General Plan Final EIR is appropriate documentation because some changes or additions are necessary to describe the modification to the Master Plan Circulation System, but none of the conditions described in CEQA Guidelines Section 15162 calling for the preparation of a subsequent EIR have occurred. The Planning Commission has reviewed and considered the attached addendum based on the following findings: a. There have not been substantial changes in the project that require major revisions to the previous EIR because of new significant environmental effects or a substantial increase in severity of previously identified environmental effects. PLANNING COMMISSION RESOLUTION NO. 03-132 DRC2003-00858 — FOOTHILL CROSSING, LLC September 24, 2003 Page 3 b. There have not been substantial changes with respect to the circumstances under which the project is undertaken, which will require major revisions to the previous EIR because of the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects. c. There is no new information of substantial importance, which was not known and could not have been known with the exercise of reasonable diligence at the time the EIR was certified as complete, that shows any of the following: 1)the project will have one or more significant effects not discussed in the previous EIR; 2) significant effect previously examined will be substantially more severe that shown in the previous EIR; 3) mitigation measures or alternatives previously found not to be feasible would in fact be feasible, and would substantially reduce one or more effects of the project but the project proponents decline to adopt the mitigation measure or alternative; or 4) mitigation measures or alternatives, which are considerably different from those analyzed in the final EIR would substantially reduce one or more significant effects on the environment, but the project proponents decline to adopt the mitigation measure or alternative. 5. This Commission hereby recommends approval of the Development Agreement attached to the staff report subject to each and every condition set forth below: Planning Division 1) The applicant shall agree to defend at his sole expense any action brought against the City, its agents, officers, or employees, because of the issuance of such approval, or in the alternative, to relinquish such approval. The applicant shall reimburse the City, its agents, officers,or employees, for any court costs and attorney's fees which the City, its agents, officers, or employees may be required by a court to pay as a result of such action. The City may, at its sole discretion, participate at its own expense in the defense of any such action but such participation shall not relieve applicant of his obligations under this condition. 6. The Secretary to this Commission shall certify to the adoption of this Resolution. APPROVED AND ADOPTED THIS 24TH DAY OF SEPTEMBER 2003. PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA BY: / — L rry T.801i6l, Vice Chairman ATTEST: Brad Bul ecretary PLANNING COMMISSION RESOLUTION NO. 03-132 DRC2003-00858— FOOTHILL CROSSING, LLC September 24, 2003 Page 4 I, Brad Buller, Secretary of the Planning Commission of the City of Rancho Cucamonga, do hereby certify that the foregoing Resolution was duly and regularly introduced, passed, and adopted by the Planning Commission of the City of Rancho Cucamonga, at a regular meeting of the Planning Commission held on the 24th day of September 2003, by the following vote-to-wit: AYES: COMMISSIONERS: FLETCHER, McNIEL, McPHAIL NOES: COMMISSIONERS: NONE ABSENT: COMMISSIONERS: MACIAS, STEWART ORDINANCE NO. AN ORDINANCE OF THE CITY OF RANCHO CUCAMONGA CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT DRC2003- 00858 WITH O & S HOLDINGS, 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: 210-082-53 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 planning, 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: "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 legally described in the attached Development Agreement. Hereinafter in this Ordinance, the CITY COUNCIL ORDINANCE NO. DA DRC2003-00858— FOOTHILL CROSSING, LLC September 24, 2003 Page 2 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 its Resolution No. 03-132. (vi) On October , 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 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: Prior to the adoption of this Ordinance, this Council has reviewed the Initial Study Parts I and Il, 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. SECTION 3: Based upon substantial evidence presented during the above-referenced public hearings on October , 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 forth 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 5: 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. 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 745445-6 TABLE OF CONTENTS Page SECTIONI. DEFINITIONS...................................................................................................4 SECTIONII. BENEFITS TO CITY. .......................................................................................5 SECTION 111. 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.....................................................9 SECTIONV. CITY'S OBLIGATIONS.................................................................................10 A. Reimbursement. .....................................................................................................10 B. Letter of Intent from Anchor Store........................................................................10 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..............................................................14 C. Defense of Agreement. ..........................................................................................15 SECTION VII. GENERAL PROVISIONS. .............................................................................15 A. Covenants Run with the Land................................................................................15 B. Transfers and Assignments....................................................................................15 1. Right to Assign. .........................................................................................15 2. Liabilities Upon Transfer...........................................................................15 C. Mortgagee Protection.............................................................................................16 D. Statement of Compliance.......................................................................................17 E. Default....................................................................................................................18 F. Annual Review.......................................................................................................19 745445-6 i G. Legal Action...........................................................................................................19 H. Waiver; Remedies Cumulative. .............................................................................20 I. Future Litigation Expenses. ...................................................................................21 1. Payment to Prevailing Party.......................................................................21 2. Scope of Fees.............................................................................................21 J. Term ....................................................................................................................21 K. Permitted Delays; Supersedure by Subsequent Laws............................................22 1. Permitted Delays........................................................................................22 2. Supersedure by Subsequent Laws..............................................................23 L. Amendment of Agreement.....................................................................................23 M. Operating Memoranda. ..........................................................................................24 SECTION VIII. MISCELLANEOUS. .......................................................................................24 A. Negation of Partnership. ........................................................................................24 B. No Third Party Beneficiary....................................................................................24 C. Entire Agreement...................................................................................................25 D. Severability. ...........................................................................................................25 E. Construction of Agreement....................................................................................25 F. Section Headings. ..................................................................................................25 G. Applicable Law......................................................................................................25 H. Notices. ..................................................................................................................26 I. Time is of the Essence. ..........................................................................................27 J. Recordation............................................................................................................27 745445-6 ii 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_day of , 2003, by and between the CITY 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 incorporated 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(the "Project"). 745445- 1 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 FEWpursuant to the provisions of the California Environmental Quality Act, such Final Environmental Impact Report being more specifically identified as State Clearinghouse No. 2000061027 (the "EIR"). On , 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. _("General Plan Amendment'), Development Code Amendment DCA20003-00616 by City Council Ordinance No. _("Development Code Amendment'), Conditional Use Permit and Development Review DRC2002-00839,with Conditions of Approval,by City Council Resolution No._("Conditional Use Permit' and"Development Review") and Tentative Parcel Map No. SUBTPM16033, with Conditions of Approval,by City Council Resolution No. ("Tentative Parcel Map"). A depiction of the Tentative Parcel Map is attached hereto and incorporated herein as Exhibit "C." (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".) 745445-7 2 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: 1. 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 construction 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 development 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. I 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. 745445-7 3 K. The Planning Commission of City(the "Planning Commission") held a duly noticed public hearing on this Agreement on September 10, 2003. L. The Council, after a duly noticed hearing, adopted Ordinance No. approving this Agreement, which ordinance will become effective on (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 III.B.L City Introduction Conditional Use Permit Recital G Council Recital F Day Creek Boulevard Improvements Section N.A. Development Agreement Statute Recital B Development Code Amendment Recital G Effective Date Recital L EIR Recital G Future Approvals Section HI.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. Planning Commission Recital K 745445-7 4 Project Recital D Project Approvals Recital G Property Recital C Required Occupancy Date Section V.D.2. Subsequent Rules Section HI.B.2. Tentative Parcel Map Recital G Term Section VII.J. Traffic Impact Fees Section V.D. Vested Rights Section III.H. SECTION 11. 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 111. PROJECT DEVELOPMENT. A. Scope of Project 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 tern of this Agreement, the rules, regulations and official policies governing permitted uses, governing density, and governing design, improvement and specifications applicable to development of the Property shall be those rules, regulations and official policies in force at the time of the Effective Date, including, without limitation, the Project Approvals (collectively, the "Applicable Rules"). 745445-7 5 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 are 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 rule 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 to 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"). Upon granting of any of the Future Approvals, as they may be amended from time to time, they 745445-a 6 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 ofMap(s) and Other Proiect 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. 745445-7 7 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 rights", 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, 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 nothing contained herein shall provide any additional rights or entitlements beyond or in addition to that which is available in accordance with California common law. H. Development Agxeement/Project 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 Property, (a distance of approximately 2,500 feet "Primary Extension Segment") and from the north 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, 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 745445-7 8 Creek Boulevard Improvements"). 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 therewith or in lieu thereof to facilitate the extension of Day Creek Boulevard outside the boundaries of the Property, except that nothing contained in this sentence shall release Owner from constructing the Channel Extension Segment. 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 N.B. shall apply only to the construction and 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 the Project shall be in the sole discretion of the Owner. Failure of the Owner to proceed with construction of the 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 N.C., in the event Owner commences construction of the Project or any buildings or improvements in the Project, nothing contained in this Agreement shall relieve Owner of the obligation to complete the Project, and any buildings or improvements in the Project, including but not limited to the 745445-7 9 Day Creek Boulevard 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 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 745445-7 10 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. Prior 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 Day Creek Boulevard Improvements 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 Store within the Project; 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 Improvements, 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 745445-7 11 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 Development, 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) 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 745445-7 12 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.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 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 745445-7 13 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. SECTION VI. COOPERATIONAMPLEMENTATION. 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. 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, 745445-7 14 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 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 745445-7 15 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 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 lender(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 745445-7 16 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 during 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 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 force and effect or, if there have been modifications hereto, that this 745445-7 17 Agreement is in full force and effect, as modified, and stating the date and nature of such modifications; (2) there 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 force 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. If the nature of the alleged default is such that it 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 745445-7 18 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 VILE. 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 make reasonable efforts to effect such cure, City may proceed to terminate this Agreement on ten days' prior written notice to Owner in accordance with the termination procedure set forth in Section VILE. 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 745445-7 19 . 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 bome equally by the parties. Any referee selected pursuant to this Section VII.G. shall be considered a temporary judge appointed pursuant 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 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 breach and/or period of time specified in such express waiver. One or more written waivers of a default or breach under any provision of this Agreement shall not be a waiver of any subsequent default or breach, 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 VILE., all of the remedies permitted or available under this Agreement, at law or in equity, shall be cumulative 745445-7 20 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. Future 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, counterclaim, or third-party claim) by reason 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 enforce 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 Agreement 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. 745445-7 21 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 (5`h) 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 VILJ., 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 VH.K.1, and has a duration of more 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 745445- 22 of: acts of God such as floods, earthquakes, fires, 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 more 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 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. 745445-7 23 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. SECTION VIII. 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 Benefrciarv. 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. 745445-7 24 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. 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 shall 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. 745445-7 25 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 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 Calabasas, 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 745445-7 26 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 San Bernardino County within ten (10) days after the Effective Date. . IN 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 ATTEST: City Clerk Approved as to Form: By: City Attorney [Signatures continue] 745445-7 27 "Owner" FOOTHILL CROSSING, LLC, a California limited liability company By: GMS Holding, hie., a California corporation, its Managing Member By: Gary M. Safady Its President By: Its 745445-7 28 STATE OF CALIFORNIA ) ss. COUNTY OF ) 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(ies), 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 instrument. WITNESS my hand and official seal. Notary Public STATE OF CALIFORNIA ) ss. COUNTY OF ) 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(ies), 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 instrument. WITNESS my hand and official seal. Notary Public 745445-7 29 EXHIBIT "A" LEGAL DESCRIPTION OF PROPERTY Parcel No. A: Parcel 2, as per plat attached to Certificate of Compliance No. 443 for lot line adjustment, recorded May 13, 1999, instrument no. 19990206054, Official Records,being described therein as follows: That portion of the Northwest quarter(NW 1/4) of Section 8, Township 1 South, Range 6 West, San Bernardino Base and Meridian, in the City of Rancho Cucamonga, County of San Bernardino, State of California, according to the Official Government plat of said land, described as Parcel 26B and as Parcels 26C and 26D, in document no. 19970033091, recorded January 30, 1997, Official Records of said County, lying Northwesterly and Northerly of the Northwesterly and Northerly lines of the land conveyed to the State of California for freeway purposes, by deed recorded June 30, 1972, in Book 7967, Page 585, Official Records of said County, and lying Southeasterly and Southerly of the following described line: Commencing at the Southwest comer of said Parcel 26C and 2613; thence along the west line of said Parcels 26C and 26D,North 00 deg 12' 35" East, 703.99 feet to the Point of Beginning; said point being on a non-tangent curve concave northwesterly and having a radius of 1100.00 feet, a radial line to said point bears South 01 deg 18' 19" East; thence Northeasterly 896.85 feet along said curve through a central angle of 46 deg 42' 52"; thence South 48 deg 01' 10" East, 57.00 feet to the Northwesterly and Northerly lines of the land conveyed to the State of California for freeway purposes,by deed recorded June 30, 1972, in Book 7967, Page 585, Official Records of said County. Parcel No. B: Parcel 3, as per plat attached to Certificate of Compliance No. 443 for lot line adjustment, recorded May 13, 1999, instrument no. 19990206054, Official Records, being described therein as follows: That portion of the Northwest quarter(NW I/4) of Section 8, Township 1 South, Range 6 West, San Bernardino Base and Meridian, in the City of Rancho Cucamonga, County of San Bernardino, State of California, according to the Official Government plat of said land, described as Parcel 26B and as Parcels 26C and 26D, in document no. 19970033091, recorded January 30, 1997, Official Records of said County, lying Westerly, Northerly and Northwesterly of the following described line: Commencing at the Southwest comer of said Parcel 26C and 261); thence along the west line of said Parcels 26C and 26D, North 00 deg 12' 35" East, 703.99 feet to the Point of Beginning; said point being on a non-tangent curve concave northwesterly and having a radius of 1100.00 feet, a radial line to said point bears South 01 deg 18' 19" East; thence Northeasterly 896.85 feet along said curve through a central angle of 46 deg 42' 52"; thence North 41 deg 58' 50" East, 159.38 745445-6 Exhibit A feet to the beginning of a curve concave Northwesterly and having a radius of 1100.00 feet; thence Northeasterly 804.37 feet long said curve through a central angel of 41 deg 53' 51"; thence North 00 deg 04' 59" East, 718.77 feet to a point on the centerline of Foothill Boulevard, said point being distant South 89 deg 55' 01" East 1235.50 feet from the Northwest comer of said Section. Parcel No. C: Parcel 4, as per plat attached to Certificate of Compliance No. 443 for lot line adjustment, recorded May 13, 1999, instrument no. 19990206054, Official Records, being described therein as follows: That portion of the Northwest quarter(NW 1/4) of Section 8, Township 1 South, Range 6 West, San Bernardino Base and Meridian, in the City of Rancho Cucamonga, County of San Bernardino, State of California, according to the Official Government plat of said land, described as Parcel 1, in document no. 19960472922, recorded December 27, 1996, and Parcel 26A and Parcel 26B, in document no. 19970033091, recorded January 30, 1997, Official Records of said County, lying Northwesterly and Westerly of the Northwesterly and Westerly line of the land conveyed to the State of California for freeway purposes, by deed recorded June 30, 1972, in Book 7967, Page 585, Official Records of said County, and lying Easterly, Northeasterly and Southeasterly of the following described line: Commencing at the Southwest corner of said Parcels 26C and 26D; thence along the West line of said Parcels 26C and 26D,North 00 deg 12' 35" East, 703.99 feet to the Point of Beginning, said point being on a non-tangent curve concave Northwesterly and having a radius of 1100.00 feet, a radial line to said point bears South 01 deg 18' 19" East; thence Northeasterly 896.85 feet along said curve through a central angle of 46 deg 42' 52" to the True Point of Beginning; thence North 41 deg 58' 50" East, 159.38 feet to the beginning of a curve concave Northwesterly and having a radius of 1100.00 feet; thence Northeasterly 804.37 feet along said curve through a central angle of 41 deg 53' 51"; thence North 00 deg 04' 59" East, 718.77 feet to a point on the centerline of Foothill Boulevard, said point being distant South 89 deg 55' 01 East 1235.50 feet from the Northwest comer of said Section. Excepting therefrom that portion lying Southwesterly of the following described line: Commencing at the True Point of Beginning; thence South 48 deg 01' 10" East 57.00 feet to the Northwesterly and Northerly lines of the land conveyed to the State of California for freeway purposes, by deed recorded June 30, 1972, in Book 7967, Page 585, Official Records of said County. Also excepting from a portion of said land, all uranium, thorium and other fissionable materials, all oil, gas petroleum, asphaltum and other hydrocarbon substances, and other minerals and mineral ores of every kind and character, whether similar to these herein specified or no, within or underlying or which may be produced from the hereinbefore described land; together with the right to use that portion only of said land which underlies a plane parallel to and 500 feet below the present surface of said land, for the purpose of prospecting for, developing and/or extracting 745445-6 Exhibit A said uranium, thorium and other fissionable materials, oil, gas, petroleum, asphaltum and other mineral or hydrocarbon substances from said land, it being expressly understood and agreed that said grantor, its successors and assigns, shall have no right to enter upon the surface of said land, or to use said land or any portion thereof, to said depth of 500 feet, for any purpose whatsoever, as reserved in the deed recorded in Book 8279, Page 62, Official Records. 745445-6 Exhibit A EXHIBIT`B" LOCATION MAP 745445-6 Exhibit B EXHIBIT "C TENTATIVE PARCEL MAP 745445-6 Exhibit C