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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 I . y . 'cif' airman �, �// ATTEST: A /���� :ra,' a r lilijiv 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 -1- 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 -2- 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. -3- 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 -4- 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 -5- 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 -6- 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 -7- 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. -8- "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 -9- 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 . -10- 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 -11- 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 -12- 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. -13- (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 -14- 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 -15- 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. -16- 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 -17- 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 -18- 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 -19- 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 -20- 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 -21- 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 -22- 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. -23- 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, _P4_ 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 -25- 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, -26- 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 _P7_ (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 -28- 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 _P9_ 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 -30- 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: -31- 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 -32- 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 -33- 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 -34- 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 -35- 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 -36- 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" -37- 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 -38- 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. -1- 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"). -2- (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 . -3- (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. -4- 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 -5- 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: -1- - 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. -2- .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. -3- .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. -5- .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. -4- (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. -6-