HomeMy WebLinkAbout88-221 - Resolutions RESOLUTION NO. 88-221
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
RANCHO CUCAMONGA, CALIFORNIA, RECOMMENDING APPROVAL OF
DEVELOPMENT AGREEMENT 88-02 (CARYN COMPANY) FOR THE
ETIWANDA HIGHLANDS PLANNED COMMUNITY CONSISTING OF
APPROXIMATELY 546 DWELLING UNITS ON APPROXIMATELY 282
ACRES OF VACANT LAND LOCATED AT THE NORTHEAST CORNER OF
24TH STREET (SUMMIT AVENUE) AND WARDMAN BULLOCK ROAD, AND
MAKING FINDINGS IN SUPPORT THEREOF - APN: 226-082-16 AND
24-27
A. Recitals.
(i ) California Government Code Section 56864 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 56865 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 56865.2 provides, in part,
as follows:
"A Development Agreement shall specify the duration of the
agreement, the permitted uses of the property, the density or intensity of
use, the maximum height and size of proposed buildings, and provision for
reservation or dedication of land for public purposes. The Development
Agreement may include conditions, terms, restrictions, and requirements for
subsequent discretionary actions, provided that such conditions, terms,
restrictions, and requirements for discretionary actions shall not prevent
development of the land for the uses and to the density or intensity of
development set forth in the agreement. . . ."
PLANNING COMMISSION RESOLUTION NO. 88-221
DA 88-02 - CARYN COMPANY
October 26, 1988
Page 2
(iv) Attached to this Resolution, marked as Exhibit "1" and
incorporated herein by this reference, is proposed Development Agreement 88-
02 between the Caryn Company and the City of Rancho Cucamonga concerning that
property located at the northeast corner of 24th Street (Summit Avenue) and
Wardman Bullock Road, and as legally described in the attached Development
Agreement. Hereinafter in this Resolution, that agreement attached hereto as
Exhibit "1" is referred to as "the Development Agreement. "
(v) Concurrent with this Resolution recommending approval of this
Development Agreement, the Planning Commission has adopted a Resolution
recommending approval of Development District Amendment 88-04 for the purpose
of pre-zoning the property to Planned Community.
(vi ) On October 26, 1988, the Planning Commission of the City of
Rancho Cucamonga held a duly noticed public hearing concerning the proposed
Development Agreement and concluded said hearing on that date.
(vii ) All legal prerequisites prior to the adoption of this
Resolution have occurred.
B. NOW, THEREFORE, it is hereby resolved by the Planning Commission of the
City of Rancho Cucamonga as follows:
1. This Commission hereby specifies and finds that all of the facts
as set forth in Recitals, Part A, of this Resolution are true and correct.
2. In conjunction with this Development Agreement, an Environmental
Assessment, in conformity with the requirements of the California
Environmental Quality Act, has been prepared. The Commission has determined
that this project would not have a significant adverse effect on the
environment, and hereby adopts a finding of no significant impact on the
environment and recommends issuance of a Negative Declaration by the City
Council .
3. This Commission specifically finds that:
(a) The location, design, and proposed uses set forth in the
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.
4. It is expressly found that the public necessity, general
welfare, and good zoning practice require the approval of the Development
Agreement.
5. This Commission recommends approval of the Development Agreement
attached hereto as Exhibit "1".
PLANNING COMMISSION RESOLUTION NO. 88-221
DA 88-02 - CARYN COMPANY
October 26, 1988
Page 3
APPROVED AND ADOPTED THIS 26TH DAY OF OCTOBER, 1988.
PLANNING COMMISSION OF THE CITY OF RANCHO CUCAMONGA
BY: Ltk_• / G
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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 26th day of October, 1988, by the following vote-to-wit:
AYES: COMMISSIONERS: BLAKESLEY, CHITIEA, EMERICK, MCNIEL,TOLSTOY
NOES: COMMISSIONERS: NONE
ABSENT: COMMISSIONERS: NONE
EXHIBIT 1
DEVELOPMENT AGREEMENT
Dated as of , 1988
between
City of Rancho Cucamonga
a municipal corporation of the State of California
and
Caryn Development Company
a California corporation
TABLE OF CONTENTS
Page
RECITALS 1
1. Definitions 6
1. 1. Defined Terms 6
2. Effective Date; Term 9
2. 1. Effective Date 9
2.2. Term 9
2.3. Subsequent Amendments or Termination 10
3. General Development of the Project 10
3.1. Project 10
3.2. Project Phasing 11
3.3. Parcelization of Property 11
3.4. Building Permits and Other Approvals 12
3.5. Other Governmental Permits 13
3.6. Fees 13
3.7. Review and Processing of Approvals 15
3.8. Effect of Agreement 16
4. Specific Criteria Applicable To Development of
the Project 16
4.1. Applicable Ordinances and Approvals 17
4.2. Governing Approvals 17
4.3. Design Review of Project 17
4.4. Easements: Abandonments: Dedications 18
4.5. Assessment Districts and Public Financing
Methods 19
5. Periodic Review of Compliance 22
6. Events of Default; Remedies; Termination 23
6.1. Events of Default 23
6.2. Remedies 24
6.3. Waiver; Remedies Cumulative 25
6.4. Effect of Termination 26
6.5. Effect of Court Action 27
6.6. Estoppel Certificate 28
7. Transfers and Assignments 28
7.1. Right to Assign 28
7.2. Release Upon Transfer 29
7.3. Covenants Run With the Land 29
8. Amendment and Termination 30
8.1. Amendment or Cancellation 30
8.2. Recordation of Amendment 31
9. Notices 31
10. Miscellaneous 32
10. 1. Negation of Partnership 32
10.2. Approvals 33
10.3. Not A Public Dedication 33
10.4. Severability 34
10.5. Exhibits 34
10.6. Entire Agreement 34
10.7. Construction of Agreement 35
10.8. Mitigation of Damages 35
10.9. Further Assurances: Covenant to Sign
Documents 35
10. 10 Covenant of Good Faith and Fair Dealing 35
10. 11 Governing Law 36
10.12 References; Terminology 36
10.13 Time 36
10. 14 Attorneys' Fees 36
SIGNATURES 37
EXHIBIT A - DESCRIPTION OF PROPERTY
EXHIBIT B - PLANNED DEVELOPMENT TEXT
EXHIBIT C - FORM OF REIMBURSEMENT AGREEMENT FOR STORM DRAINS
EXHIBIT D - ETIWANDA HIGHLANDS ARCHITECTURAL AND DESIGN GUIDELINES
EXHIBIT E - METROPOLITAN WATER DISTRICT: EASEMENT OF FEE TITLE
RECORDING REQUESTED BY:
CITY OF RANCHO CUCAMONGA
WHEN RECORDED, RETURN TO:
City of Rancho Cucamonga
9320 Base Line Road
Rancho Cucamonga, CA 91730
Attention:
DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (the "Agreement") is made and entered into
as of this day of , 1988, by and between the City of Rancho
Cucamonga, a municipal corporation of the State of California ( "City") , and
Caryn Development Company, a California corporation ("Developer" ) .
RECITALS:
This Agreement is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. These Recitals refer to and utilize certain capitalized terms
which are defined in this Agreement.
B. The Development Agreement Legislation authorizes City to enter
into Development Agreements in connection with the development of real
property within its jurisdiction by applicants with a requisite legal or
equitable interest in the real property which is the subject of a Development
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Agreement. The Development Agreement Legislation also authorizes cities
and/or counties to enact, by resolution or ordinance, procedures or
requirements for the consideration of Development Agreements, to meet the
goals of the Development Agreement Legislation.
C. The Project is a large scale residential , phased development
requiring major investment in public facilities and substantial front-end
investment in on- and off-site improvements in order to make the Project
feasible. The Project represents a master planned project analyzed and
reviewed through the Existing Approvals in light of the land use standards and
policies embodied in the City's Existing Ordinances.
D. Developer has applied for, and City and County have granted, the
Existing Approvals in order to protect the interests of their citizens in the
quality of their community and environment through the planned development
process. City has scrutinized with particular care the adverse impacts
associated with vehicular traffic conditions within the City and the effects
of the Project on such conditions. City and Developer have agreed upon a
series of mitigation measures in connection with the development of the
Project to eliminate or reduce to an acceptable level the adverse impacts on
City traffic conditions, including, without limitation, developer's share
contribution toward off-site improvements.
E. Because of these mitigation measures, City has found in
connection with its review and consideration of this Agreement that no
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subsequent or supplemental Environmental Impact Reports ("EIR's" ) are
necessary or required under the California Environmental Quality Act ( "CEQA")
in order to enter into or undertake the terms and conditions of this
Agreement, since they are consistent with, and within the scope of, the
previous EIR' s for the Existing Approvals and because the mitigation measures
provided for in those EIR' s are implemented and assured of fulfillment by the
terms and conditions of this Agreement. Specifically, but without limiting
the generality of the foregoing, City has found and determined that there are
no substantial changes in the Project, or in the circumstances under which the
Project is to be undertaken pursuant to this Agreement, which involve new
impacts not considered in previous EIR' s, so that no further environmental
analysis is required under CEQA.
F. The Existing Approvals implement the goals and policies of the
City's General Plan and impose appropriate standards and requirements with
respect to land uses, building heights and densities, traffic improvements,
support facilities (such as utilities) as development of the Project proceeds,
and measures for mitigating adverse environmental impacts in the City and the
surrounding region. City believes that the orderly development of the project
will provide many public benefits to City through the imposition of the
foregoing standards and requirements under the terms and conditions of this
Agreement, including, without limitation, the retention of 37 acres (Flood
Control ) open space, installation of on- and off-site public improvements, and
the creation of job and housing opportunities through the construction and
development of the project.
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G. Developer and City desire to provide the parameters within which
the obligations of Developer for public and other improvements will be met,
and otherwise to provide the final and definitive criteria for the development
of the Project in order to obtain the foregoing benefits.
H. For these reasons, City has determined that the Project is a
development for which a Development Agreement is appropriate in order to
achieve the goals and objectives of the City's land use planning policies and
to provide appropriate assurances to Developer regarding its ability to
complete the Project. This will in turn eliminate uncertainty in planning for
and secure orderly development of the Project, assure progressive installation
of necessary improvements and provision for public services appropriate to
each stage of development of the Project, insure attainment of the maximum
effective utilization of resources within the City at the least economic cost
to its citizens, and otherwise achieve the goals and purposes for which the
California Government Code, Section 65864-65859.5 were enacted by the State.
In exchange for these benefits to the City, Developer desires to receive the
assurance that it may proceed with the Project in accordance with the Existing
City Ordinances, subject to the terms and conditions contained in this
Agreement, in order to implement the intent of the City.
I. In order to effectuate the foregoing, the parties desire to
enter into this Agreement. Developer is the owner of the Property described
in Exhibit A and is entitled to file the application for and enter into this
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Agreement.
J. On , 1988, after due review of and report on
Developer's application for this Agreement by the Planning Director and other
City agencies and departments, and consideration of all other evidence heard
and submitted at a duly noticed public hearing pursuant to California
Government Code Sections 65090 and 65091, the Planning Commission found and
determined that this Agreement is consistent with the objectives, policies,
general plan uses and programs specified in the General Plan; is in conformity
with and will promote public convenience, general welfare and good land use
practices; will not be detrimental to the health, safety and general welfare
of the City or the region surrounding the City; will not adversely affect the
orderly development of property or the preservation of property values within
the City and will promote the same; and will promote and encourage the
development of the Project by providing a greater degree of certainty with
respect to such development.
K. Thereafter, on , 1988, the City Council held a
duly noticed public hearing on this Agreement, found this Agreement consistent
with the City's General Plan and introduced the Enacting Ordinance in order to
enact this Agreement as its legislative act. Thereafter, on
1988, the City Council adopted the Enacting Ordinance enacting this Agreement
as its legislative act.
NOW, THEREFORE, in consideration of the mutual covenants and promises
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of the parties contained in this Agreement, the parties agree as follows:
1. Definitions.
1.1. Defined Terms.
Each reference in this Agreement to any of the following terms shall have the
meaning set forth below for each such term.
"Approvals" means any and all permits or approvals of any kind of
character required under the Ordinances in order to develop the Project.
"County" means the County of San Bernardino, State of California.
"Development Agreement Legislation" means Government Code Sections
65864-65859.5, authorizing City to enter into Development Agreements as
therein set forth.
"Enacting Ordinance" means Ordinance No. enacted by the
City Council on , 1988 approving this Agreement.
"Existing Approvals" means those Approvals for the Project obtained
or enacted by City or the County as of the date of this Agreement. With
respect to the following items (a) , (b) , and (c) , (collectively, "County
Approvals") , "Existing Approvals" also includes such items as adopted and/or
approved by the City as provided in Article 4, below. The following specific
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approvals constitute the Existing County Approvals:
(a) Tentative Tract Map No. 13564 Approval . Tentative Tract Map
No. 13564, covering a portion of the County Property, was approved by the
County Board of Supervisors on August 24, 1987, under its Ordinance No. 3174
and revised by the County Planning Commission on
(b) Tentative Tract Map No. 13565 Approval . Tentative Tract Map
No. 13565, covering a portion of the County Property, was approved by the
County Board of Supervisors on August 24, 1987, under its Ordinance No. 3174
and revised on July 14, 1988 by the County Planning Commission.
(c) Planned Development Text/Plan. A Planned Development
Text/Plan was adopted by the County on August 24, 1987, by the County Board of
Supervisors by Ordinance No. 3174 including the Conditions of Approval ,
revised by the County Planning Commission on July 14, 1988 and also revised by
the County Planning Commission on . A copy of the
Planned Development Text/Plan ("Development Plan") is attached hereto as
Exhibit B.
"Existing Ordinances" means the Ordinances in effect as of the date
of this Agreement.
"Fees" means all exactions, in-lieu fees or payments, dedication or
reservation requirements, obligations for on- or off-site improvements or
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construction requirements for public improvement facilities, or services
called for in connection with the development of or construction on property
under the Ordinances, whether such exactions constitute subdivision
improvements, mitigation measures in connection with environmental review of
any project, or impositions made under other Ordinances or in order to make a
project approval consistent with City's General Plan.
"Laws" means the laws of the State of California, the Constitution of
the United States and any codes, statutes or executive mandates in any court
decision, state or federal , thereunder.
"Ordinances" means the ordinances, resolutions, codes, rules,
regulations and official policies of City, governing the permitted uses of
land, density and design, applicable to the development of the Property and
all amendments to any Ordinances heretofore or hereafter enacted, necessary or
appropriate to confer the requisite lawful right on Developer to develop the
Project. Specifically, but without limiting the generality of the foregoing,
Ordinances shall include the City's General Plan, the City's Zoning Ordinance,
and the City's Subdivision Ordinance, but shall not include the City's
Building and Fire Codes or other codes applicable to actual construction.
"Project" means the residential development and associated amenities,
and on- and off-site improvements, contemplated by or embodied within the
Existing Approvals as the same may hereafter be further refined, enhanced or
modified pursuant to the provisions of this Agreement.
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"Property" means the Real Property described in Exhibit "A" hereto.
Developer intends to develop the Project on the Property.
"Term" means the Term of this Agreement determined under Section 2.2
below.
2. Effective Date; Term.
2.1. Effective Date. This Agreement shall be dated as of the date
the Enacting Ordinance was approved by the City Council as specified in the
Recitals above ("Enacting Ordinance Date") and the obligations of the parties
hereunder shall be effective as of the last date ( "Effective Date" ) to occur
of: (a) the Enacting Ordinance Date or (b) the date upon which the Property
is annexed to the City in accordance with the terms of this Agreement. After
the Enacting Ordinance takes effect pursuant to Government Code 36937, and
not later than ten ( 10) days thereafter, the City, by and through its City
council , and Developer shall execute and acknowledge this Agreement, and
thereafter the City council . The cost of recording this Agreement shall be
borne by Developer.
2.2. Term. The term of this Agreement shall commence on the
Effective Date and shall , unless sooner terminated or extended as hereinafter
provided, terminate on the first date to occur of (a) the eighth (8th)
anniversary of the date that the first final subdivision tract map for phase 1
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of the Project shall have been recorded in the Official Records of the County,
or (b) January 1, 1997.
2.3. Subsequent Amendments or Termination. If the parties amend or
cancel this Agreement as herein provided, or as otherwise provided by the
Development Agreement Legislation or this Agreement is terminated pursuant to
any provision hereof, then the Clerk of the City Council shall , after such
action takes effect, cause an appropriate notice of such action to be recorded
in the office of the County Recorder.
3. General Development of the Project.
3.1. Project. Developer shall have the right to develop the
project on the Property in accordance with the terms and conditions of this
Agreement, and City shall have the right to control development of the
Property in accordance with the provisions of this Agreement. Except as
otherwise specified in this Agreement, the Existing Approvals and the Existing
Ordinances shall control the overall design, development and construction of
the Project, and all on- and off-site improvements and appurtenances in
connection therewith, in the manner specified in this Agreement, including,
without limitation, all mitigation measures required in order to minimize or
eliminate material adverse environmental impacts. In the event of any
inconsistency between the Existing Approvals and this Agreement, the
provisions of this Agreement shall control .
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3.2. Project Phasing. The parties acknowledge that Developer
cannot at this time commit, when or the order in which, Project phases will be
developed. Such decisions with respect to phasing of the Project will depend
upon a number of circumstances not within the control of the Developer,
including, without limitation, availability of necessary infrastructure and
other public improvements, market conditions and demand for the use or uses
within the Project, the condition of capital markets and availability of
appropriate financing for the development of the Project (such as construction
or interim and permanent loans, and/or equity capital ) and other similar
factors. Developer shall therefore have the right to develop the Project in
phases in such order and at such times as Developer deems appropriate within
the exercise of its subjective business analysis of those factors determining,
in Developer's judgment, the appropriate course of development of the Project,
so long as the Project is planned as a residential development as contemplated
by the Existing Approvals pertaining to the Project to date and the provisions
of this Agreement and the necessary infrastructure and other public
improvements necessary for such phase have been constructed.
3.3. Parcelization of Property. Developer shall have the right,
from time to time or at any time, to reconfigure the Property as shown on
Tentative Tract Map No. 13564 or Tentative Tract Map No. 13565, as may be
necessary in order to develop a particular phase of the Project, or to sell ,
lease or finance a portion of the Property in connection with the development
of the Project. Developer shall initiate such reconfiguration through an
application under the Existing Ordinances. City shall accept any such
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application, provided it is accompanied by an appropriate statement in
writing, certified by Developer, that such reparcelization is undertaken
pursuant to this Section 3.4. Each such application shall be processed in
accordance with the Existing Ordinances, and if such application is consistent
with, and otherwise conforms to, the standards, terms and conditions contained
in this Agreement, then City shall approve such application. The parties
acknowledge that the adjustments contemplated hereunder are an appropriate
means to accomplish the purposes herein specified because the Existing
Approvals provide for all necessary on- or off-site improvements to service
the Project, imposed in accordance with the requirements of Laws and
Ordinances, as contemplated by Government Code 66428.
3.4. Building Permits and Other Approvals. Subject to any
necessary reconfiguration of the boundary lines of the parcels and/or lots
comprising the Property under Section 3.3 above, Developer shall have the
right to apply for any necessary Approvals under the Building and Fire Codes
then currently in effect, pursuant to which applications are judged solely on
the basis of structural and fire safety, as ministerial decisions of the
City. City shall issue to Developer, upon such applications, all necessary
building permits, occupancy certificates, or other required permits for the
construction, use and occupancy of the Project, or any portion thereof, as
applied for, including connection to all utility systems under the City's
jurisdiction, subject to compliance with this Agreement and City's Building
and Fire Code requirements and subject to Section 3.6, below, payment of
City's usual and customary fees and charges for such applications, permits and
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certificates and any such utility connection, lot split, or similar fees and
charges of general application as specified in this Agreement. In the event
building permits are issued by County for any portion of the Project under the
jurisdiction of County, City agrees that County may continue inspection of all
phases of construction for which such building permits were issued.
Amendments to all street and other infrastructure improvement plans originally
approved by County, for any portion of the Project, shall be processed and
approved by County. Thereupon, City agrees that County shall release the
security posted by Developer for street and other infrastructure improvements
constructed by Developer in accordance with conditions and requirements
imposed by County, and plans, and amendments thereto, approved by County, upon
compliance by Developer with County requirements for such release.
3.5. Other Governmental Permits. In addition, Developer shall
apply for such other permits and approvals as may be required from other
governmental or quasi-governmental agencies having jurisdiction over the
Project (such as public utilities or utility districts) as may be required for
the development of, or provision of services to, the Project under the
Existing Approvals. City shall cooperate with Developer in its endeavors to
obtain such permits and approvals.
3.6. Fees. City and Developer agree that the City' s Fees for
development of the Project shall be modified as follows if due and paid before
the expiration of the Term of this Agreement.
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(a) Building Permit and Construction Fees. Plan check and
building and construction permit fees shall be paid in accordance with the
City's fee schedule as it exists at the time Developer submits appropriate
applications for building or construction permits, except for building permits
that are issued by County in accordance with Section 3.4.
(b) Storm Drain Fees. Inasmuch as the storm drains required
by the Existing Approvals exceed the standards of the City, no storm drain
fees of any kind will be required of Developer if the Project is developed to
the requirements of the Existing Approvals. Such storm drains are or will be
oversized in order to serve the needs of the neighboring land located to the
north of the County Property. If any portion of such lands is annexed into
the City, the City agrees to enter into a reimbursement agreement in
substantially the form of Exhibit C with Developer pursuant to which a portion
of the costs incurred by Developer in constructing and installing such storm
drains will be reimbursed to Developer.
(c) Recreation and Park Fees. Park fees will be required of
Developer; however, said fees shall only be used for park land acquisition
and/or park development within the benefit area described as; the area bounded
by 24th Street, I-15 Freeway, lower Summit Avenue, and East Avenue.
(d) Road Construction. Upper Summit Avenue, (24th Street)
may be improved to acceptable two-lane road standards as determined necessary
by the County of San Bernardino and the City of Rancho Cucamonga from the west
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reinforced concrete box east to the east property line of San Sevaine Channel .
Developer shall post with the City prior to issuance of building permits
$500,000 as his share contribution toward off-site improvements. This cost
shall be posted in properties to each phase of development on a permit by
permit basis, and for the purposes defined in the conditions of the tentative
map as approved by the County of San Bernardino.
(e) Other Fees. With regard to the Property, Developer
shall not be required to pay the City's beautification fees or systems
development fees.
No new fees shall be imposed upon Developer in connection with the development
of the Project in accordance with the Existing Approvals for any of the
purposes or services mentioned in this Section 3.6 prior to the expiration of
the Term. However, new fees shall not include an increase in existing fees,
and the Developer agrees to pay any such increases.
3.7. Review and Processing of Approvals. City shall accept for
processing and will review and take action in a timely manner on all
applications for further Approvals with respect to the Project called for or
required under this Agreement. Such application shall generally be processed
in general compliance with the City's review process. City shall schedule the
application for review by the appropriate representatives of City having
jurisdiction in order to achieve the time limitations herein set forth. Upon
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request from Developer, City shall , in a timely manner, inform Developer of
all necessary information and submission requirements in connection with each
application hereunder, and shall review any such application prior to its
submission for completeness. Specification by the City of the necessary
requirements and information hereunder shall be conclusive and binding on
City, and City shall not have the right to require any additional information
or impose any additional requirements with respect to such application in the
same manner as specified in Government Code Sections 65943 and 65944 with
respect to applications thereunder. The approval of Tentative Tract Map No.
13564 will expire on August 24, 1990. Upon receipt of proper application from
Developer prior to such expiration date, City agrees to extend such approval
to August 24, 1992, if found to be in conformance with the local Subdivision
Ordinance and State Subdivision Map Act, and any or all other applicable State
and local laws.
3.8. Effect of Agreement. This Agreement, and the Existing
Approvals, and all plans, specification, schematic drawings and models upon
which such Existing Approvals are based, shall constitute a part of the
Enacting Ordinance, as if incorporated by reference therein in full . To the
extent this Agreement modifies any Existing Approval , then such modification
shall constitute an Approval thereunder as specified by Section 65865.2 of the
California Government Code.
4. Specific Criteria Applicable to Development of the Project.
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4.1. Applicable Ordinances and Approvals. The Existing Ordinances
are the Ordinances which shall govern the development of the Property
hereunder and all subsequent Approvals with respect thereto, including the
provisions of the Existing Ordinances governing the permitted uses of the
land, governing density and governing design, applicable to development of the
Property; provided, however, that nothing herein shall prevent City, in
subsequent actions applicable to the Property, from applying new Ordinances,
not inconsistent or in conflict with the Existing Ordinances or the intent,
purposes or any of the terms, standards or conditions of this Agreement, and
which do not materially interfere with the development of the Property for the
uses and to the height, density, and intensity set forth herein or with the
rate of development selected by Developer hereunder.
4.2. Governing Approvals. Except as otherwise specified in this
Agreement, the permitted uses of the Property, 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 the location of
public improvements and other terms and conditions of development applicable
to the Property shall be those set forth in the Existing Approvals.
4.3. Design Review of Project. In order to implement the density,
allocation and height provisions herein specified, Developer shall follow the
applicable design review procedures of the City. This provision shall not
apply to structures for which building permits are issued by County, and duly
constructed. In addition to the design review procedures contained in the
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City Development Code, the "Etiwanda Highlands Architectural and Design
Guidelines Exhibit "D" shall be used in the design and review of all
development within the Property, accepting therefrom the 131 lots which have
been duly recorded by a final tract map by the County and have received
building permits from the County prior to the effective date of the enacting
ordinance of this development agreement. However, said 131 units shall be
subject to Section .309 (Landscaping and Irrigation) of the "Etiwanda
Highlands Architectural and Design Guidelines."
4.4. Easements: Abandonments: Dedications. City shall cooperate
with Developer in connection with any arrangements for abandoning existing
utility or other easements and facilities and the relocation thereof or
creation of any new easements within the Property necessary or appropriate in
connection with the development of the Project; and if any such easement is
owned by City or an agency of City, City or such agency shall , at the request
of Developer, take such action and execute such documents as may be necessary
to abandon existing easements and relocate them, as necessary or appropriate
in connection with the development of the Project. The Developer shall obtain
an easement of fee title to the Metropolitan Water District right-of-way
described in Exhibit "E" , which the Developer shall use for road purposes.
All improvements required as Fees pursuant to the Existing Approvals shall be
constructed by Developer in connection with its development of each phase of
the Project, as such improvements relate thereto and are necessary with
respect to such phase of the Project development. All applicable construction
improvement plans shall comply with City standards and be approved by the City
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Engineer. Upon final construction completion and City inspection, Developer
shall offer, and the City shall accept for maintenance, the dedication of each
major and minor roadway on the Property, and all other public improvements, as
each is substantially completed by or on behalf of Developer in accordance
with the final map and improvement plans and the City's applicable public
improvement standards and regulations in effect on the date hereof, as
modified by this Agreement, including the Exhibits which are attached to it.
The City agrees that at any and all times after acceptance of dedication, and
notwithstanding the termination or expiration of this Agreement, and subject
to such guarantees as are set forth in the City's public improvement
regulations as the same exist as of the date hereof, as modified by this
Agreement, including the Exhibits which are attached to it, the City upon the
City Council approval of constructed improvements shall be solely responsible
for the maintenance, repair and replacement of all portions of the Property so
dedicated and improved by Developer. Property dedicated to the City may be
annexed to a maintenance district at the direction of City. Except as
hereinabove expressly provided, no additional dedication shall be required to
be made by Developer provided Developer develops the Property substantially in
accordance with the Existing Approvals.
4.5. Assessment Districts and Public Financing Methods.
(a) Mello-Roos and Lighting and Landscaping Districts. If
requested by Developer, the City agrees to initiate and use its best efforts
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to pursue to completion proceedings pursuant to the Mello-Roos Community
Facilities Act of 1982, Chapter 2.5, Part 1, Division 2, Title 5 of the
California Government Code ("Mello-Roos" ) , to finance the installation,
maintenance and provision of flood control , fire protection and other regional
facilities identified by Developer to the City in the request by Developer and
authorized to be financed pursuant to Mello-Roos. City and Developer hereby
agree to cause the annexation of the Property to the Lighting and Landscaping
District established and existing within the City so as to provide the
Property with all services presently provided to other properties within the
City by such District. The City shall consider annexation to such other
special benefit assessment districts as may be requested from time to time by
Developer. The annexation of the Property to each of such districts shall be
accomplished at the earliest possible time and shall be on terms and
conditions generally applicable to other properties presently within such
districts. The City will not assume maintenance of any Landscaping and
Lighting District facilities until the assessment is in effect.
(b) 1913 Act Assessment District. If requested by Developer
and found consistent with City Council policy, the City agrees to initiate and
use its best efforts to pursue to completion proceedings pursuant to the
Municipal Improvement Act of 1913, Division 12 of the Streets and Highways
Code, to finance such improvement costs as identified by Developer and agreed
to by the City in the request by Developer and authorized to be financed
pursuant to such Acts. Developer shall advance all costs, including those of
the preparation of engineering plans and specifications, economic or financial
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appropriate for the supervision and administration of the issuance and sale of
assessment district bonds. The costs so advanced shall be reimbursed to
Developer from the proceeds of the bonds issued. One or more series of
improvements district bonds may be issued to finance such improvement costs.
However, no bond shall be issued in an amount greater than (1) the cost of
constructing those improvements identified by Developer to City plus (2)
amounts included in the bond issue to cover the cost of financing fees,
discount fees, reserve fund (not to exceed maximum debt service on such bonds
for one year) , consulting fees attendant to the formation of the assessment
district, bond insurance premiums, bond attorneys ' fees, reimbursements to
Developer, and other costs normally and reasonably associated with the
issuance of such bonds.
(c) Mortgage Revenue Bonds. If the City initiates a program to
issue mortgage revenue, industrial revenue or similar type bonds or notes, the
proceeds of which may legally be used to finance, in whole or in part, the
purchase by home buyers of any portion of the development of the Property by
Developer, or the construction of such development by Developer, Developer
shall be allowed to participate in such a program. Such participation shall
be based on the rules and procedures of the City applied on a uniform bases to
all other developers within the City.
(d) Maintenance Assessment District. Those portions of the
Property to be dedicated by Developer to the City as provided in Section 4.4
hereof shall be maintained by the city through a Landscaping and Lighting Act
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of 1972 assessment district now existing or hereafter formed. Developer
agrees to cooperate in and consent to the formation of the assessment district
(or annexation to an existing district) , for the maintenance of all such
property, and including all of the Property within the district.
(e) Consultants. City and Developer agree that the following
individuals and entities will be the consultants for any financing referred to
in this Section 4.5:
Underwriter Stone & Youngberg
Financial Consultants Fieldman & Rolopp
Bond Counsel Brown & Diven
5. Periodic Review of Compliance. City shall review this Agreement at
least once every twelve month period from the date this Agreement is executed,
at which time Developer shall be required to demonstrate good faith compliance
with the terms of this Agreement. Evidence of good faith compliance shall
include, but is not necessarily limited to, the preparation of improvement
plans following the issuance of Approvals, the commencement of construction
upon any portion of the Property, or the periodic public advertisement for
sale of single family residential units within the Property. Developer shall
be in default under this Agreement if it provides City with a written notice
stating that it does not intend to perform further under it or if City makes a
finding and determination following the prescribed periodic review as set
forth above and as provided in California Government Code Sections 65865.1
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that, upon the basis of substantial evidence, Developer has not complied in
good faith with the terms of this Agreement.
6. Events of Default; Remedies; Termination.
6.1. Events of Default. Subject to any extensions of time by
mutual consent in writing, and subject to the provisions of Section 7.1
regarding permitted delays, any failure by either party to perform any
material term of provision of this Agreement shall constitute an Event of
Default, (i ) if such defaulting party does not cure such failure within thirty
(30) days following notice of default from the other party, where such failure
is of a nature that can be cured within such thirty (30) day period, or (ii )
if such failure is not of a nature which can be cured within such thirty (30)
day period, the defaulting party does not within such thirty (30) day period,
commence substantial efforts to cure such failure, or thereafter does not
within a reasonable time prosecute to completion with diligence and continuity
the curing of such failure. Any notice of default given hereunder shall
specify in detail the nature of the failures in performance which the noticing
party claims constitutes the Event of Default and the manner in which such
Event of Default may be satisfactorily cured in accordance with the terms and
conditions of this Agreement. During the time periods herein specified for
cure of a failure of performance, the party charged therewith shall not be
considered to be in default for purposes of termination of this Agreement,
institution of legal proceedings with respect thereto, or issuance of any
building permit with respect to the Project.
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6.2. Remedies.
(a) Developer's Remedies. Except as provided in subsection
(c) , below, this Agreement shall be enforceable by Developer notwithstanding
any change in any applicable general or specific plan, zoning or subdivision
regulation adopted by City which alters or amends the rules, regulations, or
policies specified in California Government Code Sections 65866. To the
extent permitted by law, therefore, it is expressly recognized that specific
performance of this Agreement for the benefit of Developer is a proper and
desirable remedy in addition to any and all other remedies which may be
available to Developer. Provided it is further agreed that Developer shall
have no right to damages upon the occurrence of an Event of Default of this
Agreement by City.
(b) City's Remedies. City shall have no right to any
damages or other relief upon the occurrence of an Event of Default by
Developer except that city may suspend its obligations and terminate this
Agreement. Provided, this shall not limit City's remedies under any other
agreement with Developer or which would otherwise be available to it in the
absence of this Agreement.
(c) Actions of Other Agencies. If, as a result of the laws,
regulations, or actions of federal , state or other agencies having supremacy
over City, compliance with this Agreement by City is prevented or precluded,
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the provisions of this Agreement may be modified or suspended so as to comply
with such laws, regulations or actions. If, however, such modification or
suspension substantially deprives either party of the bargained for benefits
of this Agreement, such party shall be entitled to terminate this Agreement;
provided, however, prior to any such termination, City shall negotiate in good
faith with Developer to reach a reasonable alternative development that may be
undertaken by Developer in lieu of the development or otherwise to provide
Developer with the benefit of such covenant by City which is prevented or
precluded by any laws, regulations, or actions of any federal , state or other
agency having supremacy over City.
6.3. Waiver; Remedies Cumulative. Failure by a party to insist
upon the strict performance of any of the provisions of this Agreement by the
other party, irrespective of the length of time for which such failure
continues, shall not constitute a waiver of such party's right to demand
strict compliance by such other party in the future. No waiver by a party of
an Event of Default shall be effective or binding upon such party unless made
in writing by such party, and no such waiver shall be implied from any
omission by a party to take any action with respect to such Event of
Default. No express written waiver of any Event of Default shall affect any
other Event of Default, or cover any other period of time, other than any
Event of Default and/or period of time specified in such express waiver. One
or more written waivers of an Event of Default under any provision of this
Agreement shall not be deemed to be a waiver of any subsequent Event of
Default, and the performance of the same or any other term or provision
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contained in this Agreement. Except as provided in Section 7.2 above, all of
the remedies permitted or available to a party under this Agreement, or at law
or in equity, shall be cumulative and not 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. In
connection with the foregoing provisions, each party acknowledges, warrants
and represents that it has been fully informed with respect to, and
represented by counsel of such party's choice in connection with the rights
and remedies of such party hereunder, and the waivers herein contained, and
after such advice and consultation has presently and actually intended, with
full knowledge of such party's rights and remedies otherwise available at law
or in equity, to waive and relinquish such rights and remedies to the extent
specified herein, and to rely to the extent herein specified solely on the
remedies provided for herein with respect to any breach of this Agreement by
the other party.
6.4. Effect of Termination. If this Agreement is terminated on
account of an Event of Default, such termination shall not affect any right or
duty emanating from city entitlements or Approvals with respect to the
Property approved concurrently or subsequently to the approval of this
Agreement, but the rights, duties and obligations of the parties hereunder
shall otherwise cease as of the date of such termination. If City is the
terminating party, then any and all benefits, including money or land received
by the City, shall be retained by City; but if Developer is the terminating
party, then Developer shall be entitled to all of the benefits arising out of,
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or entitlements on account of, any Exactions paid, given or dedicated to, or
received by, City under this Agreement. Notwithstanding the Foregoing
provisions, no termination of this Agreement shall prevent Developer from
completing and occupying buildings or other improvements authorized pursuant
to valid building permits previously approved by City or under construction at
the time of termination. As used herein, "construction" shall mean work under
a valid building permit, and "completing" shall mean completion for beneficial
occupancy for Developer's use, or if a portion of the Project is intended for
use by a lessee or tenant, then for such portion "completing" shall mean
completion except for interior improvements, such as partitions, duct and
electrical runouts, floor coverings, wall coverings, lighting, furniture,
trade fixtures, finished ceilings, and other improvements typically
constructed by or for tenants of similar buildings. All such uses hereunder
shall , to the extent applicable, be deemed nonconforming uses, and shall be
subject to the nonconforming use provisions of City's Planning Code.
6.5. Effect of Court Action. In addition, if any court action or
proceeding is brought by any third person to challenge any Approval , this
Agreement, or any other permit or approval required from City, or any other
governmental entity, for development or construction of the Project, or any
portion thereof, and without regard to whether or not Developer is a party to
or real party in interest in such action or proceeding, then (i ) Developer
shall have the right to terminate this Agreement upon thirty (30) days notice
in writing to City, given at any time during the pendency of such action or
proceeding, or within ninety (90) days after the final determination therein
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(including any appeals) , irrespective of the nature of such final
determination, and (ii ) any such action shall constitute a permitted delay
under Article 6.1, 6.2c, and 6.4.
6.6. Estoppel Certificate. Either party may, at any time, and from
time to time, deliver written notice to the other party requesting such party
to certify in writing that, to the knowledge of the certifying party, (i ) this
Agreement is in full force and effect and a binding obligation of the parties,
(ii ) this Agreement has not been amended or modified either orally or in
writing, and if so amended, identifying the amendments, and (iii ) the
requesting party is not in default in the performance of its obligations under
this Agreement, or if in default, to describe therein the nature and amount of
any such defaults. A party receiving a request hereunder shall execute and
return such certificate within thirty (30) days following the receipt
thereof. The Planning Director of City shall have the right to execute any
certificate requested by Developer hereunder. City acknowledges that a
certificate hereunder may be relied upon by transferees and Mortgages.
7. Transfers and Assignments.
7.1. Right to Assign. Developer shall have the right to sell ,
assign or transfer in whole, or in part, this Agreement, and all of its
rights, duties and obligations hereunder, to any person at any time during the
Term of this Agreement; provided, however, in no event shall the rights,
duties and obligations conferred upon Developer pursuant to this Agreement be
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at any time so sold, transferred or assigned except through a transfer of an
interest of Developer in the Property, or portion thereof, transferred.
7.2. Release Upon Transfer. Upon the sale, transfer or assignment
of Developer's rights and interests under this Agreement under Section 9.1
above, Developer 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 (i ) if Developer is not then
in default under this Agreement, (ii ) Developer has provided to City notice of
such transfer, and (iii ) the transferee executes and delivers to City a
written agreement in which (A) the name and address of the transferee is set
forth and (B) the transferee expressly and unconditionally assumes all of the
obligations of Developer under this Agreement with respect to the Property, or
portion thereof, transferred. Developer shall , in any event, give notice to
City of any transfer hereunder, disclosing therein the identity of the
transferee and such transferee's address. Failure to deliver a written
assumption agreement hereunder shall not effect the running of any covenants
herein with the land, as provided in Section 9.3, below, nor shall such
failure negate, modify or otherwise affect the liability of any transferee
pursuant to the provisions of this Agreement.
7.3. 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, consolidation, or otherwise) and
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assigns, devises, 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 (by
merger, consolidation or otherwise) and assigns. All of the provisions of
this Agreement shall be enforceable as equitable servitudes and constitute
covenants running with the land pursuant to applicable law, including, but not
limited to, Section 1468 of the Civil Code of the State of California. Each
covenant to do or refrain from doing some act on the Property hereunder, or
with respect to any City owned property, (i ) is for the benefit of such
properties and is a burden upon such properties, (ii ) runs with such
properties, and (iii ) is binding upon each party and each successive owner
during its ownership of such properties or any portion thereof, and each
Person having any interest therein derived in any manner through any owner of
such properties, or any portion thereof, and shall benefit each party and its
property hereunder, and each other Person succeeding to an interest in such
properties.
8. Amendment and Termination.
8.1. Amendment or Cancellation. Except as provided in Article 5
above with respect to City's annual review thereunder, this Agreement may be
cancelled, modified or amended only by mutual consent of the parties in
writing, and then only in the manner provided for in Section 65868 of the
California Government Code. Any amendment to this Agreement which does not
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relate to the Term, permitted uses, density or intensity of use, height or
size of buildings, provisions for reservation and dedication of land,
conditions, terms, restrictions and requirements relating to subsequent
discretionary actions, monetary contributions by Developer, or any conditions
or covenants relating to the use of the Property, shall require the giving of
notice pursuant to Section 65867 of the Development Agreement Legislation as
specified by Section 65868.
8.2. Recordation of Amendment. Any amendment or cancellation of
this Agreement effected by the parties hereunder shall be recorded by the
Clerk to the City Council as specified in Section 2.3 above not later than ten
(10) days after the effective date of the action effecting such amendment or
cancellation, which amendment or cancellation shall describe the Property
subject thereto.
9. Notices. Any notice to either party shall be in writing and given by
delivering the same to such party in person or by sending the same by
registered or certified mail , or Express Mail , return receipt requested, with
postage prepaid, to the party's mailing address. The respective mailing
addresses of the parties are, until changed as hereinafter provided, the
following:
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City: City of Rancho Cucamonga
9320 Base Line Road
Post Office Box 807
Rancho Cucamonga, CA 91730
Attention: Ms. Beverly Authelet
Developer: Caryn Development Company
Post Office Box 216
South Laguna, CA 92677-0216
Attention: Mr. Joseph N. Dilorio
Either party may change its mailing address at any time by giving written
notice of such change to the other party in the manner provided herein at
least ten ( 10) days prior to the date such change is effected. All notices
under this Agreement shall be deemed given, received, made or communicated on
the date personal delivery is effected or, if mailed, on the delivery date or
attempted delivery date shown on the return receipt.
10. Miscellaneous.
10.1 Negation of Partnership. The parties specifically
acknowledge that the Project is a private development, that neither party is
acting as the agent of the other in any respect hereunder, and that each party
is an independent contracting entity with respect to the terms, covenants and
conditions contained in this Agreement. None of the terms or provisions of
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this Agreement shall be deemed to create a partnership between or among the
parties in the businesses of Developer, the affairs of City, or otherwise, nor
shall it cause them to be considered joint venturers or members of any joint
enterprise. 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.
10.2 Approvals. Unless otherwise herein provided, whenever
approval , consent or satisfaction (herein collectively referred to as an
"approval ") is required of a party pursuant to this Agreement, it shall not be
unreasonably withheld. Unless provision is made for a specific time period,
approval shall be deemed given within thirty (30) days after receipt of the
written request for approval , and if a party shall neither approve nor
disapprove within such thirty (30) day period, or other time period as may be.
specified in this Agreement for approval , that party shall then be deemed to
have given its approval . If a party shall disapprove, the reasons therefore
shall be stated in reasonable detail in writing. Approval by a party to or of
any act or request by the other party shall not be deemed to waive or render
unnecessary approval to or of any similar or subsequent acts or request. The
standards, terms and conditions for Approvals under this Agreement shall
extend to and bind the partners, officers, directors, shareholders, trustees,
beneficiaries, agents, elective or appointive boards, commissions, employees,
and other authorized representatives of each party, and each such person shall
make or enter into, or take any action in connection with, any Approval
hereunder in accordance with such standards, terms and conditions.
10.3. Not A Public Dedication. Nothing herein contained shall be
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deemed to be a gift or dedication of the Property, or of the Project, or
portion thereof, to the general public, for the general public, or for any
public use or purpose whatsoever, it being the intention and understanding of
the parties that this Agreement be strictly limited to and for the purposes
herein expressed for the development of the Project as private property.
Developer shall have the right to prevent or prohibit the use of the Property,
or the Project, or any portion thereof, including common areas and buildings
and improvements located thereon, by any Person for any purpose inimical to
the operation of a private Project as contemplated by this Agreement.
10.4. 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 grossly inequitable under
all the circumstances or would frustrate the purposes of this Agreement.
10.5. Exhibits. The Exhibits listed in the Table of Contents, to
which reference is made herein, are deemed incorporated into this Agreement in
their entirety by reference thereto.
10.6. Entire Agreement. This written Agreement and the Exhibits
hereto contain all the representations and the entire agreement between the
parties with respect to the subject matter hereof. Except as otherwise
specified in this Agreement, any prior correspondence, memoranda, agreements,
warranties or representations are superseded in total by this Agreement and
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Exhibits hereto, and such memoranda.
10.7. 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 any party and consistent with
the provisions hereof, in order to achieve the objectives and purpose of the
parties hereunder. The captions preceding the text of each Article, Section,
subsection and the Table of Contents hereof are included only for convenience
of reference and shall be disregarded in the construction and interpretation
of this Agreement. 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.
10.8. Mitigation of Damages. In all situations arising out of this
Agreement, the parties shall attempt to avoid and minimize the damages
resulting from the conduct of the other party. Each party shall take all
necessary measures to effectuate the provisions of this Agreement.
10.9. Further Assurances: Covenant to Sign Documents. Each party
covenants, on behalf of itself and its successors, heirs and assigns, to take
all actions and do all things, and to execute, with acknowledgement 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.
10.10. Covenant of Good Faith and Fair Dealing. Neither party
shall do anything which shall have the effect of harming or injuring the right
of the other party to receive the benefits of this Agreement; each party shall
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refrain from doing anything which would render its performance under this
Agreement impossible; and each party shall do everything which this Agreement
contemplates that such party shall do in order to accomplish the objectives
and purposes of this Agreement.
10.11. Governing Law. This Agreement, and the rights and
obligations of the parties, shall be governed by and interpreted in accordance
with the laws of the State of California.
10. 12. References; Terminology. Unless otherwise specified,
whenever in this Agreement, reference is made to the Table of Contents, any
Article or Section, or any defined term, such reference shall be deemed to
refer to the Table of Contents, Article or Section or defined terms of this
Agreement. The use in this Agreement of the words "including," "such as" or
words of similar import when following any general term, statement or matter
shall not be construed to limit such statement, term or matter to the specific
items or matters, whether or not language of nonlimitation, such as "without
limitation" or "but not limited to," or words of similar import, are used with
reference thereto, but rather shall be deemed to refer to all other items or
matters that could reasonably fall within the broadest possible scope of such
statement, term or matter. Reference herein to a "party," or the "parties,"
shall refer to City and Developer, or both, as the context may require.
10.13. Time. Time is of the essence of this Agreement and of each
and every term and condition hereof.
10. 14 Attorneys' Fees If legal action is brought by either party
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against the other for breach of this Agreement, or to compel performance under
this Agreement, the prevailing party shall be entitled to an award of
reasonable attorneys' fees and costs. •
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the day and year first above written.
CITY OF RANCHO CUCAMONGA, a CARYN DEVELOPMENT COMPANY, a
municipal corporation of the California corporation
State of California
By: By:
Dennis t. Stout Joseph N. Dilorio
Its Mayor Its President
By: "Developer"
BeverTy A. Authelet
Its City Clerk
Approved as to Form:
BY:
Its City Attorney
"City"
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STATE OF CALIFORNIA )
) ss.
COUNTY OF )
On , 19 , before me, the undersigned, a Notary
Public in and for sail State, personally appeared
and , personally known
to me or proved to me on the basis of satisfactory evidence to be the persons
who executed the within instrument as Mayor and City Clerk or on behalf of
CITY OF RANCHO CUCAMONGA, the municipal corporation therein named, and
acknowledged to me that the municipal corporation executed it.
WITNESS my hand and official seal .
Notary Public in and for said State
STATE OF CALIFORNIA )
ss.
COUNTY OF )
On , 19 , before me, the undersigned, a Notary
Public in and for said State, personally appeared Joseph N. Dilorio,
personally known to me or proved to me on the basis of satisfactory evidence
to be the person who executed it.
WITNESS may hand and official seal .
Notary Public in and for said State
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EXHIBIT A
LEGAL DESCRIPTION
CARYN DEVELOPMENT COMPANY
The west 1/2 of the east 1/2 and the east 1/2 of the west
1/2 of Section 22, Township 1 north, range 6 west, San
Bernardino base and meridian, according to the official
plat of said land.
Also excepting therefrom that certain strip of land 80
feet in width, as described in that certain grant deed
executed by Samuel J. Wassem, et ux. , to the Metropolitan
Water District of Southern California, a Public
Corporation, recorded July 30, 1969 in book 7276, page
603, official records.
•
Also excepting therefrom those certain strips of land 330
feet in width, as described in that certain grant deed
executed by Samuel J. Wassem, as trustee to Southern
Surplus Realty Co. , a California Corporation, recorded
April 27, 1973 in book 8171, page 84, official records.
Also excepting the south 30 feet thereof.
Also excepting an undivided 1/3 interest in all minerals,
oil , gas, and hydrocarbon gas as reserved in the deed
from Alfred D. Devey, an unmarried man, to Fay Claridge
Main, an unmarried woman, recorded May 31, 1950 in book
2583, page 129, official records.
REIMBURSEMENT AGREEMENT
EXHIBIT C
This REIMBURSEMENT AGREEMENT ("Agreement") is entered into to be
effective as of , 1988, between the CITY OF RANCHO CUCAMONGA,
a municipal corporation of the State of California ("City") and CARYN
DEVELOPMENT COMPANY, a California corporation ("Developer"). City and
Developer are sometimes collectively referred to herein as the "Parties" .
P R E A M B L E
A. Developer is the owner and developer of real property in the
unincorporated area of San Bernardino County more particularly described on
Exhibit "A" attached hereto and incorporated herein by this reference
("Property"). the Property is the subject of Annexation No. for
annexation to the City which has been initiated by landowner petition to the
Local Agency Formation Commission.
B. City has entered into a Development Agreement with Developer
pursuant to Government Code Section 65864 et seq. and has approved Tentative
Tract Map Nos. 13564 and 13565, has approved a Planned Development Text/Plan
by Resolution No. and has approved the West Valley Foothill Community
Plan by Resolution No. (collectively, the "Governmental Approvals") .
C. Pursuant to the Governmental Approval , Developer is being
required to install storm drains oversized to serve the needs of other
properties, located to the north of the Property as shown and described on
Exhibit "B" , attached hereto and incorporated herein by this reference
("Benefit Area") . Pursuant to the Governmental Approvals, Developer is being
required at its sole expense to install such storm drains subject to
reimbursement to the extent that the costs incurred by Developer exceed the
amount that Developer would otherwise pay.
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D. By Ordinance No. , City has established the Benefit Area
containing the properties which will be benefited by installation of the storm
drains by Developer. At the time final maps are recorded for properties
within the Benefit Area, or building permits are issued for such properties,
whichever occurs first, storm drain fees will be collected by City from such
property owners and reimbursed to Developer.
E. The Parties desire to enter into this Agreement to implement the
Development Agreement, to provide for the installation of storm drains, and to
provide for reimbursement to Developer for a portion of the costs of
oversizing the storm drains to the extent such costs exceed the amount of
owing by Developer.
The Parties agree as follows:
1. Installation of Storm Drains. Developer, at its sole expense,
shall construct and install the storm drain facilities and protective works
required by City Engineer. The Storm Drain Facilities to be installed by
Developer exceed City standards and will be oversized to serve the Property
and the Benefit Area. Therefore, pursuant to the Development Agreement,
Developer is not obligated to pay any storm drain fees to City, and
construction of the Storm Drainage Facilities is in lieu of payment of such
fees. To the extent that the cost of installing the Storm Drain Facilities
exceeds the amount which would otherwise be owning by Developer, City shall
cause other developments to reimburse Developer for such excess cost as
further provided in Paragraphs 2 and 3, below.
2. Method of Calculating Developer's Reimbursement Entitlement.
(a) Calculation of Capacity. As established in the storm
drain improvement plans for the construction of the Storm Drain Facilities,
the capacity of the Storm Drain Facilities is , of which
capacity percent ( %) is allocated to the Subject Property,
and percent ( %) is allocated to excess capacity ("Excess
Capacity").
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(b) Allocation of Costs of the Drainage Facilities. The total
cost of construction of the Storm Drain Facilities is
Dollars ($ ) . Based upon percentage of total
capacity in the Storm Drain Facilities allocated to the Subject Property, the
pro rata share of costs attributable to the Subject Property for construction
of the Storm Drain Facilities is Dollars ($ ) ,
and the pro rata share of costs attributable to Excess Capacity based
upon percentage of the total capacity is
Dollars.
(c) Developer's Reimbursement Allocation. Developer shall be
entitled to reimbursement from other developments throughout the City of an
amount equal to the pro rata share of the costs of constructing the Storm
Drain Facilities attributable to the Excess Capacity computed pursuant to
subparagraph (b) of this Paragraph 2. Developer shall not be entitled to any
reimbursement of Developer's costs incurred which are attributable to the
Property. The unpaid balance of Developer's Reimbursement Allocation will be
increased annually on the anniversary date of this Agreement by the percentage
increase in the construction cost index as reported in the Engineering News
Record during the prior twelve (12) months.
3. Payment of Reimbursement.
(a) Storm Drain Benefit. The City shall establish a storm
drain benefit for properties within the Benefit Area payable upon the first to
occur of (i ) the recording of a final parcel map or final tract map for
properties within the Benefit Area, or (ii ) the obtaining of a building
permit.
(b) Payment to Developer. Within thirty (30) days after the
payment of any Storm Drain cost by other development to City, City shall
reimburse to Developer the Storm Drain Fees so collected until the amount of
Developer's Reimbursement Allocation has been paid in full .
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(c) City of Adopt Ordinances. City shall adopt all
ordinances, resolutions, rules or regulations necessary to effectuate the
purposes of this Agreement.
4. Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of City and
Developer.
5. Termination. This Agreement and City shall no longer be
obligated to reimburse Developer upon the expiration of twenty (2) years
following the date of this Agreement.
6. Notices. Any notice to either party shall be in writing and
given by delivering the same to such party in person or by sending the same by
registered or certified mail , or Express Mail , return receipt requested, with
postage prepaid, to the party's mailing address. The respective mailing
addresses of the parties are, until changed as hereinafter provided, the
following:
City: City of Rancho Cucamonga
9320 Base Line Road
Post Office Box 807
Rancho Cucamonga, California 91730
Attention: Ms. Beverly Authlet
Developer: Caryn Development Company
Post Office Box 216
South Laguna, California 92677-0216
Attention: Mr. Joseph N. Dilorio
Either party may change its mailing address at any time by giving written
notice of such change to the other party in the manner provided herein at
least ten ( 10) days prior to the date such change is effected. All notices
under this Agreement shall be deemed given, received, made or communicated on
the date personal delivery is effected or, if mailed, on the delivery date or
attempted delivery date shown on the return receipt.
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7. 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 grossly inequitable under all the
circumstances or would frustrate the purposes of this Agreement.
8. Attorneys' Fees. If legal action is brought by either party
against the other for breach of this Agreement, or to compel performance under
this Agreement, the prevailing party shall be entitled to an award of
reasonable attorneys ' fees and costs.
9. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original , but all of which when
taken together shall constitute on instrument.
The Parties have executed this Agreement as of the date first
written above.
APPROVED AS TO FORM: CITY OF RANCHO CUCAMONGA
municipal corporation of the
State of California
By:
City Attorney
By:
Mayor
ATTEST:
City Clerk
CARYN DEVELOPMENT COMPANY, a
California corporation
By:
Joseph N. Dilorio
President
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ETIWANDA HIGHLANDS
ARCHITECTURAL AND DESIGN GUIDELINES
EXHIBIT "D"
5.42 ARCHITECTURAL AND DESIGN GUIDELINES
.100 Intent
It is the intent of this article to provide guidelines for the
design of structures or elements which reinforce and establish
the character of North Etiwanda Foothill Area. It is also the
intent to assure that new development be designed in a manner
that is sensitive to, and compatible with, the character of
Etiwanda and the Etiwanda Specific Plan Area.
Projects which in the opinion of the Design Review Committee do
not meet the intent of this article shall not be recommended for
approval .
.200 General Guidelines
.201 Project design shall be guided by site-specific factors
such as views, mature vegetation, topography, surrounding
development, and similar considerations. The use of
designs and site plans prepared for another site shall not
be permitted unless successfully modified to local
conditions.
.202 Architectural and design elements which relate to the
existing and desired character of North Etiwanda/Foothills
Area are best described as:
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- rural , rather than urban
- informal , rather than formal
- traditional , rather than contemporary
- rustic, rather than polished
- low profile, rather than massive
- relating to people, rather than automobiles
.301 Specific Standards - Excessive repetition of single family
structures with identical floor plans and elevations shall
be discouraged. Footprints and elevations shall be varied
per Figure 3-1.
FIGURE 3-1 FOOTPRINT/ELEVATION REQUIREMENTS
Minimum number
Number of single Minimum number of elevations
family dwellings of footprints* per footprint*
5-10 3 2
11-20 4 3
21-40 5 3
41-60 6 4
61-80 7 4
81-100 8 4
Over 100 1 additional 4
for each 40
dwelling units
over 100
* A reverse footprint of a floor plan will count as an additional
footprint. A side-on entry garage with an elbow driveway will count
as an additional footprint.
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.302 At least 50% of all lots shall be side-on garages.
However, for the L (Low) Tract 13565 a further reduction in
this requirement, in 5% increments, down to a minimum of
20% of all garages within single family tracts for side-on
entries where an additional floor plan per each 5%
reduction is provided and if approved by the Planning
Commission.
.303 Driveways shall not exceed 15 feet 0 inches in width
through the public parkway frontages on lots less than 75
feet in width. On lots 75 feet or greater in width ,
driveways shall not exceed 24 feet, with a smooth
transition provided to the ultimate driveway width within a
depth equal to the parkway depth.
.304 Two story structures should not be planned for corner
parcels, unless sideyard setbacks of 25 feet or greater are
used. However, within the L (Low) Tract 13565 the Planning
Commission may consider that 2 story homes that have a 1
story condition on one side (i .e. , a maximum plate line of
the sideyard of corner parcels not exceeding 12 feet in
height) would be allowed a minimum 15 foot street sideyard
setback.
.305 The project shall be designed in a manner that is not only
sensitive to, and compatible with the character of
Etiwanda, but also reinforces that character through an
integrated design and architectural theme.
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.307 Materials, textures, and architectural detailing shall be
consistent with the design theme. "Stucco stone" products
may be used to create stone effects, except where river
rock occurs, which shall be native stone. However, if any
stone products are used, some portion of the units shall
include native stone.
.308 View fencing consisting of 6 foot high tubular steel with
masonry pilasters will be used adjacent to all S.C.E.
corridors and the easterly boundary road. Along major
(collector or above) streets and the street sides of corner
lots enhanced masonry (possibly "woodcrete") shall be
provided. All other fencing within the rear and sideyards
shall be provided at the option of the builder, subject to
City review and approval of the design and construction.
.309 Street side landscaping and irrigation shall be required
prior to occupancy.
Said landscape and irrigation improvements shall first be
approved in plan form by the City Planner, prior to the
issuance of any building permits; except that in the case
of the first four phases ( 131 units) , landscape and
irrigation shall be approved in plan form by the City
Planner prior to the effective date of the Development
Agreement. This section shall apply to all dwelling units
within this project, including the first form phases (131) ,
which may be started and finished under a County Building
permit. These plans shall contain the following elements:
(a) Architecturally designed mail boxes shall be provided
for each house by the builder.
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.306 While no specific architectural style is required, the
integrated theme selected shall reflect the traditional
architectural styles found in Etiwanda, including but not
limited to those listed below. Any one of the following
themes may be utilized as a dominant theme or they may be
interspersed. Both one and two story buildings are
appropriate to the following categories.
(a) Victorian
Characteristics:
fieldstone foundations
steep gables and roofline
porches and verandas
bay windows
vertical windows
roundheaded windows
clapboard and fascia
board and batton siding
large roof projections
(b) California Bungalow
Characteristics:
Hip or gable roof/gently sloping front
porches/verandas, enriched foundations
(c) California Ranch
Characteristics:
Low, rambling
rustic, informal , front porches/verandas
(d) Any other integrated design style which in the opinion
of the Design Review Committee meets the intent of
this article.
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(b) Enhanced driveway and front entry walk treatments,
utilizing decorative pavements and wide walkways.
(c) In addition to the standard parkway trees, at least
four 15 gallon trees per house would be planted by the
builder no later than occupancy of the home. Also,
accent trees of at least 15 gallons in size will be
provided in numbers sufficient to equal one tree per
corner for each intersection within the tracts. This
tree planting is to be designed in a manner to relieve
any monotony of the streetscape, perhaps by cluster
planting between the homes.
(d) Irrigated and turfed areas shall be provided for each
front and corner street side lot.
(e) Paseos between cul -de-sacs shall be provided,
landscaped, and annexed to a landscape maintenance
district.
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