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HomeMy WebLinkAbout331 - Ordinances ORDINANCE NO. 331 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCHO CUCAMONGA, CALIFORNIA, APPROVING THAT DOCUMENT ENTITLED "DEVELOPMENT AGREEMENT CONCERNING THAT PROPERTY LOCATED AT THE SOUTHEAST CORNER OF FOOTHILL BOULEVARD AND SPRUCE AVENUE IN RAN CliO CUCAMONGA, SAN BERNARDINO COUNTY, CALIFORNIA" AND AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE THE SAME ON BEHALF OF THE CITY OF RANCliO CUCAMONGA A. Recitals. (i) California Government Code Section 65864 now provides. in pertinent part, as follows: "The Legislature finds and declares that: "a. The lack of certainty in the approval of development projects can result in a waste of resources, escalate the cost of housing and other developments to the consumer, and discourage investment in and commitment to comprehensive planning which would make maximum efficient utilization of resources at the least economic cost to the public. "b. Assurance to the applicant for a development project that upon approval of the project, the applicant may proceed with the project in accordance with existing policies, rules and regulations, and subject to conditions of approval, will strengthen the public planninE process, encourage private participation in comprehensive planning, and reduce the economic costs of development. (ii) California Government Code Section 65865 provides, in pertinent part, as follows: "Any city .... , may enter into a development agreement with any person having a legal or equitable interest in real property for the development of such property as provided in this article.. ." (iii) California Government Code Section 65865.2 provides 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 Ordinance No. 331 Page 2 purposes. The development agreement may include conditions, terms, restrictions and requirements for subsequent discretionary actions, provided that such conditions, terms, restrictions and requirements for subsequent 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.. ." (iv) Attached to this Ordinance, marked Exhibit "A" and incorporated herein by reference, is a proposed Development Agreement concerning that property located on the southeast corner of Foothill Boulevard and Spruce Avenue in the City of Rancho Cucamonga. Hereinafter in this ordinance, that agreement attached hereto as Exhibit "A" is referred to as "the Development Agreement." (v) The property which is the subject of the Development Agreement and this ordinance now is zoned as Subarea 7, Industrial Park, pursuant to the provisions of the Industrial Area Specific Plan, as amended to date. The proposed developer of the property and the City desire to provide through the attached Development Agreement specific development options and controls on the site which will provide for maximum efficient utilization of the site in accordance with sound planning principles, all in accordance with the above referenced provisions of law. · (vi) On November 10, 1987, the Planning Commission of the City of Rancho Cucemonga held a duly noticed public hearing concerning the proposed Development Agreement and has recommended to this Council the adoption of the Development Agreement. (vii) All legal prerequisites prior to the adoption of this Ordinance have occurred. B. Ordinance. NOW, THEREFORE, it hereby is found, determined and ordained by the Council of the City of Rancho Cucamonga as follows: 1. In all respects as set forth in the Recitals, Part A, of this Ordinance. 2. The City Council of the City of Rancho Cucamonga hereby finds and concurs with that Negative Declaration adopted with respect to the project and hereby finds that it has been prepared in compliance with the California Environmental Quality Act of 1970, as amended, and the Guidelines promulgated thereunder, and, further, that this Council has reviewed and considered the information contained in said Negative Declaration with respect to the project identified in this Ordinance. 3. This Council specifically finds that: Ordinance No. 331 Page 3 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 will produce internally an environment of stable and desirable character, and not tend to cause any traffic congestion on surrounding or ~ccess streets; c. The proposed development will be well integrated into its setting; and d. The Development Agreement conforms to the General Plan and Industrial Area Specific 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 Council hereby approves the Development Agreement attached hereto as Exhibit "A". 6. This Council hereby authorizes and directs the Mayor and City Clerk to execute the Development Agreement on behalf of the City of Rancho Cucamonga forthwith upon adopting this Ordinance. The Mayor shall sign this Ordinance and the City Clerk shall cause the same to be published within fifteen (15) days after its passage at least once in The Daily Report, a newspaper of general circulation published in the City of Ontario, California, and circulated in the City of Rancho Cucamonga, California. PASSED, APPROVED, and ADOPTED this 2nd day of December, 1987. AYES: Brown, Buquet, Stout, Wright NOES: King ABSENT: None ./~ Dennis L. Stout, Mayor ATTEST: Beverly ~. Authelet. City Clerk Ordinance No. 331 Page 4 I, BEVERLY A. AUTHELET, CITY CLERK of the City of Rancho Cucamonga, California, do hereby certify that the foregoing Ordinance was introduced at a regular meeting of the Council of the City of Rancho Cucamonga held on the 18th day of November, 1987, and was finally passed at a regular meeting of the City Council of the City of Rancho Cucamonga held on the 2nd day of December, 1987. Executed this 3rd day of December, 1987 at Rancho Cucamonga, California. Beverly ~ Authelet, City Clerk Ordinance No. 331 Page 5 EXHIBIT "'A" DEVELOPMENT AGREEMENT CONCERNING THAT PROPERTY LOCATED AT THE SOUTHEAST CORNER OF FOOTHILL BOULEVARD AND SPRUCE AVENUE IN RANCliO CUCAMDNGA, SAN BERNARDINO COUNTY, CALIFORNIA THIS AGREEMENT is made and entered into as of the thirty-first day following final adoption of the Ordinance approving it (hereinafter, the "Effective Date") by and between the City of Rancho Cucamonga, a municipal corporation ("City") and BCE Development Inc., a Delaware Corporation ("Developer"). WITNESSETH: Recitals 1. California Government Code Sections 65864 et seq. authorize City to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property. 2. Developer owns fee title in and to that real property located entirely within City, generally located at the southeast corner of Foothill Boulevard and Spruce Avenue, which property is legally described in attached Exhibit No. 1 (the "Site"). The Site is comprised of 10 parcels (the "Parcels"). It is the intent of the Developer to develop the site as a master planned mixed use development, including the construction of design and commercial buildings and a food park complex (the "Project"). 3. The Site is now zoned Subarea 7, Industrial Park, pursuant to the provisions of City's Industrial Area Specific Plan, as amended to date hereof. 4. Developer has requested that City enter into a development agreement relating to the Site. 5. Developer and City desire to provide through this Development Agreement more specific development controls on the Site which will provide for a maximum efficient utilization of the Site in accordance with sound planning principles. 6. On December 2, 1987, City adopted Ordinance No. 331 approving this Agreement. Agreement NOW, THEREFORE, the parties hereto agree as follows: SECTION 1. General Provisions: A. Covenants. It is intended and determined that the provisions of this Agreement shall constitute covenants which shall run with the land comprising the Site, and the benefits and burdens hereof shall bind and inure to all successors in interest to the parties hereto. Ordinance No. 331 Page 6 B. Term. The term of this Development Agreement shall commence upon the effective date of this Agreement and shall extend until December 31, 2007, unless said term is terminated, modified or extended by circumstances set forth in this Agreement or by mutual consent of parties hereto. Following the expiration of the term, this Agreement shall be deemed terminated and of no further force and effect; provided, however, such termination shall not automatically affect any right or duty arising from City entitlements on the Site approved concurrently with or subsequent to the approval of this Agreement. C. Construction Period. The Developer shall complete construction work for the Project on the Site, and all phases thereof, including landscaping and off-site improvements, pursuant to a building permit or permits issued by City within 5 years following Effective Date, that is, within the 5 year period commencing immediately after the Effective Date. If the Developer has not completed said work, the Site shall then be deemed to be zoned Subarea 7, Industrial park, and the development of the Site then and thereafter shall be governed accordingly by the then current provisions of the Cityts Industrial Area Specific Plan as to Subarea 7, Industrial Park zoning or the then applicable specific plan and/or zoning category succeeding thereto. D. Assignment. 1. The terms and conditions of this Agreement relating to assignments or transfers shall apply with full force and effect to assignments or transfers of interests in this Agreement. 2. Except as provided within this Agreement, Developer shall have the right to sell, mortgage, hypothecate, assign, or transfer all or any portion of the Property to any person or entity at any time during the Term (an "Assignment"). Any Assignment shall include the assignment of those rights, duties, and obligations created by this Agreement with respect to all or any portion of the Property. 3. The express assumption of any or all of the obligations of Developer under this Agreement by any assignee, shall relieve Developer, without any act or concurrence of the City, of its legal duty to perform those obligations, except to the extent that Developer is in default with respect to the assigned obligations at the time of the proposed assignment. E. Amendment of Agreement. This Agreement may be amended from time to time by mutual consent of the original parties or such party to which Developer assigns part or all of its interest in this Agreement, in accordance with the provisions of Government Code Sections 65867 and 65868 and provided that any Amendment of the Development Plan or Development Guidelines as hereinafter defined which is approved by the Planning Commission as provided by Section 1.F. below, such as the location or design of buildings, streets and other physical facilities shall not require as amendment to this Agreement. Ordinance No. 3 3 1 Page 7 F. Amendment of Development Plan and Development Guidelines. The Project shall proceed in accordance with those plans and specifications entitled "Foothill Design and Commercial Center" presented to City's staff by Developer consisting of twelve (12) sheets inclusive, and date stamped "RECEIVED CITY OF RANCHO CUCAMONGA PLANNING DIVISION, NOVEMBER 2, 1987" (conceptual parcel map/site plan, detailed site plan, site utilization map, landscape sections, and conceptual grading plan) (the "Master Development Plan"), the Development/Design Guidelines dated November 3, 1987 (the Development Guidelines") attached hereto as Exhibit No. 4, and in accordance with the development standards set forth hereinafter. Upon written request of Developer, modifications and changes to the Master Development Plan and the Development Guidelines may be approved in accordance with City's Development Code Sections 17.02.070 and 17.06,010. SECTION 2. General Development of the Property: A. Right to Develop; RiSht to Control Development. Developer (and its successors and assigns) shall have the right to develop the Project on the Site in accordance with the terms and conditions of this Agreement, and City shall have the right to control development of the Site in accordance with the provisions of this Agreement. B. Permitted Uses. 1. The permitted uses of the site shall be those set forth in attached Exhibit No. 2. In no event shall City disallow any of the permitted uses listed on Exhibit No. 2 during the term of this Agreement. The permitted uses constitute the uses proposed by Developer for the Site. In the event of a conflict between the provisions of this Agreement and any other resolution, rule, regulation or policy of City now in existence, the provisions of this Agreement shall control. 2. The density and intensity of use, the conceptual size of proposed buildings, provisions for reservation or dedication of land for public purposes and location of public improvements, and other terms and conditions of development applicable to the Site, shall be those set forth in this Agreement, the Master Development Plan, and Development Guidelines. 3. The maximum height of proposed buildings shall be four stories or 75 feet, whichever greater, unless a greater height approved as a Conditional Use Permit by the City's Planning Commission. 4. Other uses deemed compatible with the intent of this Agreement may be permitted subject to the procedures governing the issuance of a Conditional Use Permit. Conditional approval may include non-transferrability. Ordinance No. 331 Page 8 C. Rules, Regulations and Official Policies. 1. Except as expressly provided in this Agreement, all substantive and procedural requirements and provisions contained in City's ordinances, specific plans, rules and regulations, including, but not limited to, its Development Code, as amended, and Industrial Area Specific Plan, in effect as of the effective date of this Agreement, shall apply to the development of the site pursuant to this Development Agreement. Further, any terms or phrases contained herein for which there are definitions provided in City's said Development Code or Industrial Area Specific Plan shall be deemed to be utilized in accordance with those definitions. 2. This Section shall not preclude the application to the development of the Site of changes in City laws, regulations, plans or policies, the terms of which are specifically mandated and required (as opposed to permitted) by changes in state or federal laws or regulations as provided for in Government code Section 65869.5. 3. This Section shall not be construed to limit the authority of the City to charge processing fees for land use approvals, building permits and other similar permits and entitlements which are in force and effect on a City-wide basis at the time those permits are applied for, except to the extent any such processing regulations would be inconsistent with this Agreement. D. Effect of A~reement on Land Use ReSulations. The rules, regulations and official policies governing permitted uses of the Site, the density and intensity of use of the Site, maximum height and size of proposed buildings, the design, improvement and construction standards and specifica- tions applicable to the development of the Site are those rules, regulations and official policies in force at the time of the execution of this Agreement. E. New Rules by City. City may apply new rules, regulations and official policies to development of the Site which do not conflict with the rules, regulations and official policies in effect as of the date of this Agreement. The substantive development standards set forth in the Master Development Plan and the Development Guidelines shall be the standards that govern all future discretionary actions of City regarding the Site. This agreement shall not be construed to make applicable to the Site those future health and safety regulations (e.g., building, seismic, plumbing and electric codes) that become applicable to the City as a whole. SECTION 3. Conditions of Development: A. The following conditions and standard conditions set forth in attached Exhibit No. 3 shall apply to the development of the Site. Ordinance No. 331 Page 9 1. The Master Development Plan is approved in concept only and future development for each parcel comprising the Site shall be subject to Development/Design Review process for Planning Commission approval, including, but not limited to, plaza details, architectural elevations, materials, and color. 2. Development of each parcel comprising the Site shall be in substantial conformance with the Development Guidelines, including, but not limited to, architectural style and landscape palette. 3. A Uniform Sign Program shall be submitted prior to issuance of building permits which is compatible with the architectural style and addresses the signage needs of the design, commercial and food park users. 4. A continuous pedestrian circulation system shall be provided on one side of east-west driveway spine throughout the Site to connect all buildings and plaza areas. 5. Bicycle storage facilities shall be provided and shall relate to master planned bicycle routes along Foothill, Spruce and White Oak as required under the Transit and Pedestrian Circulation Concept, Figure II-7 of the City's Industrial Area Specific Plan. 6. The vehicle stacking capacity of any drive-thru facility and the design and location of the ordering and pick-up facilities shall be determined by the City Planner. The Developer shall submit to the City Planner, a traffic study prepared by a traffic engineer as required by City's Development Code Section 17.12.040C. 6. 7. A uniform design of hardscape such as pavement material, trash receptacles, benches, bicycle racks, etc., for the entire Site shall be submitted for City Planner review and approval. 8. Location and conceptual design of transit stops and shelters shall be subject to Design Review Committee review and approval. The design of the transit shelters shall be compatible to the architectural program of the Site and City Standards or guidelines. 9. Pedestrian amenities shall be provided with plazas and outdoor eating areas, such as canopy shade trees or structures, raised planters and benches, and drinking fountains. 10. Parking areas shall be screened with berming, hedgerows, trees or low level decorative walls, or any approved combination thereof. Berms shall be undulating with an average height of three foot and a maximum slope of 3 1/2:1. 11. All future building pads shall be seeded and irrigated for erosion control. A detailed plan shall be included in the landscape and irrigation plans to be submitted for Planning Division approval prior to issuance of grading permits. Ordinance No. 331 Page 10 12. Additional street trees shall be provided in clusters along the streetscape, particularly along Foothill Boulevard, except for moderately sized view corridors into project. 13. The materials and construction of the "dome" awnings shall be durable to withstand high winds and ultraviolet light. 14. No shared parking shall be permitted for the Master Development Plan. Parking for each use shall be provided to satisfy the parking ratios which are required by the terms of City ts Development code and/or Industrial Area Specific Plan. 15. Architectural treatment shall be consistently applied to all sides of all buildings. 16. No driveway access will be allowed onto White Oak Avenue. 17. The westerly driveway onto Eucalyptus Street within Parcel 8 may be relocated to be centered on the property line between Parcels 8 and 9. 18. An in-lieu fee as contribution to the future construction of the median island within Foothill Boulevard shall be paid to the City prior to the issuance of building permits or approval of the Final Parcel Map, whichever occurs first. The amount of the fee shall be one half the cost of the median (currently estimated at $60 per linear foot) times the length of the project frontage from a projection of the easterly right-of-way line for Spruce Avenue to a projection of the westerly right-of-way line for Elm Avenue. Payment of this fee shall relieve Parcels 8, 9, 10 and 11 of Parcel Map No. 6725 from further obligations to construct the Foothill Boulevard median. Any previous payments made as contributions to the median for property within said parcels shall be credited toward said in-lieu fee. 19. Foothill Boulevard Driveway: a. Final approval will be required from CalTrans. b. It will be right-turn only, therefore an opening will not be permitted in the future raised median island. c. It shall be constructed in accordance with City Standard No. 306. d. A right-turn deceleration lane shall be provided on the west side of the driveway. It shall be 150 feet long, 10 feet wide and have a 90-foot transition. e. A request shall be made to the City to vacate the non- vehicular access rights for the driveway. Ordinance No. 331 PaSe 11 f. The existins storm drain facilities located at the proposed driveway location shall be removed and replaced to provide proper drainaSe control. Easements necessary to construct the new storm drains shall also be provided. S- It shall be located as shown on the plans (approximately 650 feet west of the centerline of Elm Avenue), but can be moved westerly up to midway between Elm Avenue and Spruce Avenue. 20. The meanderins sidewalk alonE the public streets shall be constructed in accordance with City Standard No. 304. 21. The Development AEreement Master Plan shall be subject to the pertinent conditions of Tentative Parcel Map No. 10617. 22. The applicant shall comply with the followins requirements of the Foothill Fire Protection District: a. Fire flow requirement shall be 4000 Sallons per minute (Spm). (i) A previous fire flow, conducted 10/86 showed 5923 Spm available. (ii) A fire flow test shall be conducted by the builder/developer and witnessed by fire department personnel prior to water plan approval. b. Existins. fire hydrant locations and outlet sizes shall be shown on plans prior to water plan approval. Required fire hydrants, if any, will be determined by this department at that time. Fire department standards require 6" hydrant head and 4" x 2-1/2"1 outlets. Substandard hydrants shall be replaced with an approved hydrant. c. Public and/or on-site fire hydrants are required. All such hydrants shall be installed, flushed and operable prior to delivery of any combustible buildins materials on the site (i.e., lumber, roofins materials, etc.). Hydrant flushins shall be witnessed by fire department personnel. d. A key box/device shall be installed prior to final inspection. Proof that it has been purchased shall be submitted prior to final buildins plan approval. (NOTE: Delivery time for Knox box is approximately 4 to 6 weeks.) e. '~lue dot" reflective hydrant markers shall be purchased prior to final occupancy approval. Proof of purchase must be shown unless said markers are purchased throuSh this department. Ordinance No. 331 Page 12 SECTION 4. Annual Review: A. Annual Review. During the term of this Agreement, City shall annually review the extent of good faith compliance by Developer with the terms of this Agreement (the "Annual Review"). Such periodic review shall be limited in scope to compliance with the terms of this Agreement pursuant to Government Code Section 65865.1. The Developer shall file an annual report with City indicating information regarding compliance with the terms of this Agreement. Said annual reports shall be filed with the City Planner no later than March 15th following the previous calendar year. B. Default Determination at Annual Review. If, as a result of the Annual Review, the City determines that Developer is in default under this Agreement, written notice of such default shall be given to Developer specifying in detail the nature of the default and the actions necessary to cure the default. Developer shall have the opportunity to cure the default in the manner set forth in 5 below. C. Certificate of Compliance. If Developer has found to be in compliance with this Agreement after the Annual Review, the City shall, upon request by Developer at any time after an Annual Review, issue a certificate of compliance to Developer (the "Certificate") stating that, after the most recent Annual Review and based upon information known by or made known to the City Council and/or the Director, (i) this Agreement remains in effect and either (ii) Developer is not in Default or (iii) Developer is in Default and specifying in nature of the Default. The Certificate shall be in recordable from and shall contain information necessary to communicate constructive record notice of the finding of compliance. Developer may record the Certificate in the official records of the County. SECTION 5. Developer' s Default: If Developer defaults under this Agreement ("Default") and fails to cure the Default within a reasonable period of time (the "Cure Period") after receipt from the City of notice of the Default, Developer shall be in breach of this Agreement and no further opportunity to cure shall be required. The Cure Period shall be no less than thirty days unless the Default cannot be feasibly cured within thirty days, in which event the Cure Period shall be sufficient to allow Developer to cure the Default as determined by the City. Any notice of a Default from the City shall state the nature of the Default and the acts necessary to cure the Default. A hearing shall be held by the City Council on the Default in the same manner as provided for the Annual Review, except that the City will not be required to provide a second notice of Default and a second Cure Period if, after the hearing, Developer is found to be in Default. SECTION 6. General: A. No Other Representations. Except as expressly set forth in this Agreement, no representations of any kind or character have been made to one another by any of the parties hereto or by any of the parties' agents, repre- sentatives, associates or attorneys with respect to each subject to which this Agreement relates. Ordinance No. 331 Page 13 B. Entire ASreement. This Agreement contains the entire agreement of the parties with respect to each subject to which it relates. C. Waiver. No provision of this Agreement may be waived, except in writing, which writing must be executed by all of the parties hereto. D. Additional Documents. The parties hereto each agree that they shall execute and deliver to the other, upon request to do so, any and all documents reasonable and necessary to accomplish or evidence the agreements contained in or contemplated by this Agreement. E. Attorney's Fees. In any proceedings arising from the enforcement of this Development Agreement or because of an alleged breach or default hereunder, the prevailing party shall be entitled to recover the costs and attorney fees incurred in the proceeding and such reasonable attorneys' fees as may be determined by a Court in any legal action. F. Recording. In accordance with California Government Code Section 65868.5, a certified copy of this Agreement shall be recorded with the Recorder of San Bernardino County, California, 4mmediately upon this Agreement being effective. G. MortgaSee Protection. A breach of this Agreement shall not defeat, render invalid, diminish, or impair the lien of any Mortgage made in good faith and for value, unless otherwise required by law. H. Notice of Default to Mortgagee; Right of MortSaSee to Cure. If the City receives notice from a Mortgagee requesting a copy of any notice of default given Developer, the City shall provide a copy of that notice to the Mortgagee within ten days of sending the notice of Default to Developer. The Mortgagee shall have the same right, but not the obligation, to cure the Default, including no identical cure period, allowed Developer under this Agreement. I. Notices. Any notice, demand, payment or other communication required or permitted to be given by an provision of this Agreement ("notice") shall be deemed to be sufficiently given or served if: (a) delivered personally to the party to whom the notice is to be delivered; or (b) sent by mail, or federal express addressed to the party at the party's address as it appears in this Agreement, or at any other address as that party may from time to time specify by written notice; or (c) given by transmittal over electronic transmitting devices, such as IBM System 6, NBI, TWIX, Telex or talecopy machine, if the party to whom the notice is sent has such a device in its office, provided a complete copy of any notice so transmitted shall also be mailed in the same manner as required for a mailed notice. Any notice shall be deemed to be given as of the date actually received except that if the party declines to acknowledge receipt or has changed its address and not otherwise informed the other party of the new address, receipt shall be deemed as of the date of the attempted delivery. Ordinance No. 331 Page 14 J. Cooperation in the Event of Legal Challenge. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provisions of this Agreement, the parties shall cooperate in defending this action. K. Indemnification. Developer agrees to and shall hold City and its elected officials, officers, agents and employees harmless from liability for damage or clalms for damage for personal injuries, including death, and claims for property damage which may arise from the direct or indirect operations of Developer of those of his contractor, subcontractor, agent, employee or other person acting on his behalf which relate to the Site. Developer agrees to and shall defend City and its elected officials, officers, agents and employees with respect to actions for damages caused or alleged to have been caused by reason of Developerrs activities in connection with the Site. This hold harmless provision applies to all damages and claims for damage suffered or alleged to have been suffered by reason of the operations referred to in this Development Agreement regardless of whether or not the City prepared. supplied or approved the plans, specifications or other documents for the Project. IN WITNESS WHEREOF, the parties have executed and entered into this Agreement as of the effective date of the Ordinance approving this Agreement. CITY OF RANC~O ~C~A Dated: By: Dennis L. Stout, Mayor Dated: By: Beverly A. Authelet, City Clerk 9320 Base Line Road Rancho Cucamonga, California 91730 BC~ D~,OPMENT, INC. a Delaware Corporation Dated: By: Dated: By: 2201 Dupont Drive, Suite 200 Irvine, California 927 15