HomeMy WebLinkAbout379 - OrdinancesORDINANCE NO. 379
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF RANCliO
CUCAMONGA, CALIFORNIA, APPROVING DEVELOPMENT AGREEMENT
88-02 (CARYN COMPANY) FOR THE ETIWANDA HIGHLANDS PLANNED
COMMUNITY CONSISTING OF APPROXIMATBLY 546 DWELLING UNITS
ON APPROXIMATELY 282 ACRES OF VACANT LAND LOCATED AT THE
NORTHEAST CORNER OF 24TH STREET ( SUET AVENUE) AND
WARDMAN BULLOCK ROAD, AND MAKING FINDINGS IN SUPPORT
THEREOF
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 cons~uner, and discourage
investment in and conunitment to cnmprehensive planning which would
make maximum efficient utilization of resources at the least econnmic
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 A~reement with any
person having a legal or equitable interest in real property for the
development of such property as provided in this article..."
(ill) California Government Code Section 56865.2 provides, in part.
as follows:
"A Development A~reement 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 A~reement may include conditions. terms,
Ordinance No. 379
Page 2
restrictions, and requirements for subsequent discretionary actions,
pr0vid~d 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..."
(iv) Attached to this Ordinance, marked as Exhibit "1" and
incorporated hereinby ~his reference, is proposed Development Agreement 88-02
between the. Caryn Compan~ and ~=the City of Rancho Cucamonga concerning that
property located at the northeast corner of 24th Street (Summit Avenue) and
W~rdman Bullock Road, and as legally described in the attached Development
~reement. Hereinafter in this Ordinance, that agreement attached hereto as
Exhibit "1" is referred to as "the Development Agreement."
(v) 'COncUrrent with this Ordinance approving this Development
Agreement, the .City Couhcil is adopting an Ordinance approving 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
RaRcho Cuaamonga held a duly noticed public hearing concerning the proposed
Development Agreement, concluded said hearing on that date, and recommended
approVal of this Ordinance.
(vii) On November 16, 1988, the City Council of the City of Rancho
Cucamonga held a duly noticed public hearing concerning the proposed
Development Agreement and concluded said hearing on that date.
(viii) All legal prerequisites prior to the adoption of this
Ordinance have occurred·
B. Qrdinance.
NOW, THEREFORE, the City Council of the City of Rancho Cucamonga does
hereby ordain by as follows:
1. This .Council hereby specifies and finds that all of the facts as
set forth in Recitals, Part A, of this Ordinance are true and correct
....... 21~ 'I~'c0njunction with this Development Agreement, an Environmental
Assessment, in conformity with the requirements of the California Environmental
Quality Act, has been prepared. The Council 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 issues a
Negative Declaration·
3. This Council speciflcally finds that:
Ordinance No. 379
Page 3
(a) The location, design, "'and proposed uses set" forth in the
Development Agreement are compatible with the chara~er"of existing
development in the vicinity;
(b) The Development Agreement will produce 'internally an
environment of stable and desirable character;
(c) The proposed development will be welI integrate~ into Lits
setting; and ' .
(d) The Development Agreement conforms to the General Plan
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 D~eIopme~t Ag~eemento
5. This Council approves the Development Agreement attaahed heretO as
Exhibit "1".
6. 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 ieast
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 7th day of December, 1988.
AYES: Brown, Buquet, Stout, Wright
NOES: None
ABSENT: None
ABSTAINED: Alexander
Dennis L. Stou~,'..Mayor
ATTEST:
Authelet, City Clerk
Ordinance No. 379
Page 4
I, BEVERLY A. AUTH~.ET, 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 R~ncho Cucamonga held on the 16th
day of November, 1988, and was finally passed at a regular meeting of the City
Council of the City of Rancho Cucamonga held on the 7th day of December, 1988.
Executed this 8th day of December, 1988 at Rancho Cucamonga,
California.
~uthelet, City Clerk
Exhibit "1"
DEVRX.OPMENT AGREEMENT
Dated as of January 7, 1989
between
City of Rancho Cucamonga
a municipal corporation of the State of California
and
Caryn Development Company
a California corporation
Ordinance No. 379
Page 6
TABLE OF CONTENTS
R"~CI~AT""lSeeeeeeeeeeeeeeeeeeeleaeeeeeeeeeeeeeaeaeeeeeeaeeeeeeeeeeeeeee
1. Definitions .....................................................
1.1. Defined Terms .............................................
2. Effective Date; Term ............................................
2.2.
2.3.
Ea~_e
1
9
Effective Date ........................................... 9
Ter~eeeoeeeeseeeeeeeeeeoeeeeseeseeeeeeeeeseeseeeeeeeeeeee 9
Subsequent Amendments or Termination ..................... 10
3. General Development of the Project ..............................
3.2.
3.3.
3.4.
3.5.
3.6.
3.7.
3.8.
10
Project .................................................. 10
Project Phasing .......................................... 11
Parcelization of Property ................................ 11
Building Permits and Other Approvals ..................... 12
Other Governmental Permits ............................... 13
Fees
Revi '~ ................................................... 13
and Processing of Approvals ....................... 15
Effect of Agreement ...................................... 16
Specific Criteria Applicable To Development of
the Project ...................... ~ ..............................
16
4.1.
4.2.
4.3.
4.4.
4.5.
Applicable Ordinances and Approvals ...................... 17
Governing Approvals ...................................... 17
Design Review of Project ................................. 17
Easements: Abandonments: Dedications ................... 18
Assessment Districts and Public Financing
Methods .................................................. 19
Periodic Review of Compliance ...................................
22
6.1.
6.2.
6.3.
6.4.
6.5.
6.6.
~vents of Default ........................................ 23
Remedies
Waiver; ................................................. 24
Effect o~era.dies Cumulative .............................. 25
Termination .................................... 26
Effect of Court Action ................................... 27
Estoppel Certificate ..................................... 28
~vents of Default; Remedies; Termination ........................ 23
Ordinance No. 379
Page 7
7. Transfers and Assignments ....................................... 28
7.1.
7.2.
7.3.
Right to Assign .......................................... 28
Release Upon Transfer .................................... 29
Covenants Run With the Land .............................. 29
8. Amendment and Termination ....................................... 30
Amendment or Cancellation ................................ 30
Recordation of Amendment ................................. 31
9. Notices ......................................................... 31
10. Miscellaneous ................................................... 32
10.1.
10.2.
10.3.
10.4.
10.5.
10.6.
10.7.
10.8.
10.9.
10.10
10.11
10.12
10.13
10.14
Negation of Partnership .................................. 32
Approvals ................................................ 33
Not A Public Dedication .................................. 33
Severabillty ............................................. 34
Exhibits ................................................. 34
Entire A~reement ......................................... 34
Construction of A~reement ................................ 35
Mitigation of Damages .................................... 35
Further Assurances: Covenant to Sign Documents .......... 35
Covenant of Good Faith and Fair Dealing .................. 35
Governing Law ............................................ 36
References; Terminology .................................. 36
Ti'~leeeseeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeeaeeeeeeee 36
Attorneys' Fees .......................................... 36
SIGNATURES .......................................................... 37
EXHIBIT A - DESCRIPTION OF PROPERTY
EXHIBIT B - PLANNED DEV~.OPMENT 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
Ordinance No. 379
Page 8
RECORDING REQUESTED BY:
CITY OF RANCliO 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 7th day of January, 1989, by and between the Ci=y of Rancho
Cuc~onga, a municipal corporation of the State of California ("City"], and
Caryn Development Company, a California corporation ("Developer").
RECITAL S:
This Agreement is entered into on the basis of the following facts,
understandings and intentions of the parties:
A. These Recitals refer =o 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 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 maj or 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
Ord{nance No. 379
Page 9
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
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 A~reement, 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 A~reement. 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
A~reement, 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.
G. Developer and City desire to parameters within which the
obligations of Developer for public and other improvements will 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
Ordinance No. 379
Page 10
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 A~reement. Developer is'the owner of the Property described in
Exhibit "A" and is entitled to file the application for and enter into this
A~reement.
J. On October 26, 1988, after due review of and report on
Developer's application for this A~reement 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 A~reement 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 November 16, 1988, the City Council held a duly
noticed public hearing on this A~reament, found this A~reament consistent with
the City's General Plan and introduced the Enacting Ordinance in order to enact
this Agreement as its legislative act. Thereafter, on December 7, 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
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.
Ordinance No. 379
Page 11
"Enacting Ordinance" means Ordinance No. 379 enacted by the City
Council on November 16, 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
approvals constitute the Existing County Approvals:
(a) Tentative Tract .M~_p No, 13564_A_~p_r_ov__a_l, 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 November 17, 1988.
(b) Tentative Tract .M~_E_~o. 1356~__AEE[_ov_~. 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 DeveleE~.nt 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 November 17, 1988, A copy of the Planned
Development Text/Plan ("Development Plan") is attached hereto as Exhibit "B".
(See Contract No. 88-199 for 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
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
Ordinance No. 379
Page 12
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 A~reement.
"Property" means the Real Property described in Exhibit "A"
hereto. Developer intends to develop the Proj oct on the Property.
2.2 below.
"Term" means the Term of this Agreement determined under Section
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 A~reement shall be borne by
Developer.
2.2. Term. The term of this Agreement shall commence on the
Effective Date a~'~hall, 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
of the Project shall have been recorded in the Official Records of the County,
or (b) January 1, 1997.
2.3. [~luent 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 Pro~S~.
3.1. fr__oi~S~. 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
Ordinance No. 379
Page 13
accordance with the provisions of this Agreement. Except as otherwise
specified in this Agreement, the Existin~ ~B~rovals and the Existink Ordinances
shall control the overall design, ~;io~en~'i~'constructi~'~'t~' ~g3~7
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.
3.2. E[~ect Pha~. 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 Pr~[~X. Developer shall have the right, from
time to time or at any time, to reconflgure 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 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. B__u~_d_i~__Permits and Other ~[_ov_~. 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
Ordinance No. 379
Page 14
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 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. [~. 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.
(a) Buildin~__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
overshed 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" (see Contract No. 88-196 for Exhibit "C") with
Ordinance No. 379
Page 15
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 shalf"~g"be used for park land acquisition
and/or park development within the benefit area described as; the area bounded
by 24th Street, 1-15 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
reinforced concrete box east to the east property llne 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 Bernardlno.
(e) Other Fees. With regard to the Property, Developer shall
not be required to pay the City's beautiflcation 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 .Processin~__~__~rovals. 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 Cityts 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
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.
Ordinance No. 379
Page 16
3.8. Effect of __A~[eement. 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 A~reement modifies any Existing Approval, then such modification
shall constitute an Approval thereunder as specified by Section 65865.2 of the
California Government Code.
4. ~ecific Criteria_~apllcable to Develepment of the Prei~3.
4.1. ~licable Ordinances and ~rovals. The Existing Ordinances
are the Ordinan~es'~i~ ~'~ii ~;~'~'d~;i;~ent 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, ~tandards 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 act forth herein or with the
rate of development selected by Developer hereunder.
4.2. Governi~__~r__ov_~a~. 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 ~i~h['~i~i~s'~rei~ 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 City
Development Code, the "Etiwanda Highlands Architectural and Design Guidelines
Exhibit "D" (see Contract No. 88-199 for 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
Ordinance No. 379
Page 17
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" (see Contract No. 88-199 for 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 Engineer. Upon final construction completion and City
inspection, Developer shall offer, and the City shall 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 FinancinS_Methods.
(a) Mello-Roos and L~S__.and Landsc~S_ Districts. If
requested by Developer, the City agrees to initiate and use its best efforts 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
Ordinance No. 37 9
Page 18
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 studies and
feasibility reports, and such other costs as are necessary or appropriate for
the supervision and administration of the issuance and sale of assesament
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 rev~j~,'i~dustrial 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
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
Financial Consultants
Bond Counsel
Stone & Youngberg
Fieldman & Rolopp
Brown & Diven
Ordinance No. 379
Page 19
5. Periodic Review of Ce~~~. 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 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.
6.2. Remedies.
(a) ~_eX_~erss 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
Ordinance No. 379
Page 20
have no right to damages upon the occurrence of an Event of Default of this
A~reement by City.
(b) City's Remedies. City shall have no right to any damages or
other relief upon t~e'o~u~[;~; ~f an Event of Default by Developer except
that city may suspend its obligations and tez~ninate this A~reement. Provided,
this shall not 1]Jnit City's remedies under any other agreement with Developer
or which would otherwise be available to it in the absence of this A~reenent.
(c) Actions of Other __~_e_n_c_i_e_s. If, as a result of the laws,
regulations, or actions of federal, state or other agencies hayins supremacy
over City, compliance with this Agreement by City is prevented or precluded,
the provisions of this A~reement 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 A6reement;
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 bindins 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 Rvent 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 A~reement 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 contained in this A~reement. 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 ts 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
Ordinance No. 379
Page 21
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, 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 and 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
(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. ~Ea~! 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
Ordinance No. 379
Page 22
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 A~_~nments.
7.1. _K!_'~.ht to AsideS. Developer shell have the right to sell, assign
or transfer in whole, or in part, this A~reement, and all of its rights, duties
and obligations hereunder, to any person at any time during the Term of this
AgreementJ provided, however, in no event shall the rights, duties and
obligations conferred upon Developer pursuant to this Agreement be at any time
so sold, transferred or assigned except interest of Developer in the Property,
or portion thereof, transferred.
7.2. Release.~n Transfer. Upon the sale, transfer or assignment of
Developer's rights and interests under this A~reement under Section 9.1 above,
Developer shall be released from its obligations under this A~reement 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 A~reement, (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 A~reement 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 -~ffect 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
A~reement shall be binding upon the parties and their respective heirs,
successors (by merger, consolidation, or otherwise) and 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 A6reement shall be
enforceable as equitable servitudes and constitute covenants running with the
land pursuant to applicable law, including, but not llmit.ed 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
Ordinance No. 379
Page 23
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
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 cancellatlon 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 parryes mailing address. The respective mailing
addresses of the parties are, until changed as hereinafter provided. the
following:
City:
Developer:
City of Rancho Cucamonga
9320 Base Line Road
Post Office Box 807
Rancho Cucamonga, CA 91730
Attention: Ms. Beverly Authelet
Caryn Development Company
Post Office Box 216
South Laguna, CA 92677-0216
Attention: Mr. Joseph N. DiIorio
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
Ordinance No. 379
Page 24
this Agreement shall be deemed given, received, made
date personal delivery is effected or, if mailed,
attempted delivery date shown on the return receipt.
or communicated on the
on the delivery date or
10. Miscellaneous.
10.1 Negation of Partnership. The parties speclfically acknowledge
that the Projec['i~"~ ~i~'te ~~p~nt, =hat neither party is acting as the
a~ent 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
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 ~provals. 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
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.
Ordinanue No. 379
Page 25
10.4. Severabi~X. 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 ~eement. 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
Exhibits hereto, and such memoranda.
10.7. Construction of _A~eement. 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.
subsectlon 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. _Mi__t~ion of D_a~_~. 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 S_i~ 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 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.
Ordinance No. 379
Page 26
10.11. Governin~ Law. This Agreement, and the rights and obligations
of the parties, [~iF'Se"~overned by and interpreted in accordance with the
laws of the State of California.
10.12. References; Terminolo~X. Unless otherwise specified, whenever
in this Agreement, reference is made ~o 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 '~ithout 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 hereln 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 an~'~ndltion hereof.
10.14. Attorne/s' Fees. If legal action is brought by either party
against the other for bre~c'K'~['this Agreement, or to compel performance under
this Agreement, the prevailing party shall be entitled to an award of
reasonable attorneyst 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
municipal corporation of the
State of California
CARYN DEVELOPMENT COMPANY, a
California corporation
By:
Dennis L. Stout
Its Mayor
By:
Joseph N. DiIorio
Its President
By:
Beverly A. Authelet
Its City Clerk
"Developer"
Approved as to Form:
By:
Its City Attorney
"City"
Ordinance No. 379
Page 27
EXHIBIT "A"
LEGAL DESCRIPTION
Parcel No. 1:
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 Bernardlno Base and Meridian, according to
the Official Plat of said land.
Excepting therefrom the north 1/2 of the east 1/2 of the northwest 1/4 of said
Section 22.
Also excepting therefrom that certain strip of land 80 feet in width, as
described in that certain grant deed executed by Samuel J. Wasem, 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. Wasem, as Trustee to
Southern Surplus Realty Co., A California Corporation, recorded April 27, 1973
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. Davey, an unmarried man,
to Fay Claridge Main, an unmarried woman, recorded May 31, 1950 in Book 2583.
Page 129, Official Records.
Parcel No. 2:
The north 1/2 of the east 1/2 of the northwest 1/4 of Section 22, Township 1
north, Range 6 west, San Bernardino Base and Meridian, according to the
Official Plat of said land.
Excepting therefrom that certain strip of land 330 feet in width lying across
the property herein described, as described in that certain grant deed executed
by Samuel J. Wasom, as trustee to Southern Surplus Realty Co., A California
Corporation, recorded April 27,1973 in Book 8171, Page 84, Official Records.
Also excepting an undivided 1/3 interest in all minerals, oil, gas and
hydrocarbon gas as reserved in the deed from Alfred D. Davey, an unmarried man,
to Fay Claridge Main, an unmarried woman, recorded May 31, 1950 in Book 2583,
Page 129, Official Records.