HomeMy WebLinkAboutContracts & Agreements_38-1991_CCv0001.pdf I FEE a
2 POSYS R F.00-IR 0 E D N
REQUESTED BY AND
WHEN RECORDED FAIL TO:
91 NEC 12 PM 2: 09
co—
City Clerk' s Office
City of Redlands
l
P. 0. Box 3005 Iy CCIL) I I Y, CALF.
Redlands, CA 92373
5-
DTT !1,41-469320'
Spam Above This Line For Recorder's Use
between
BARTON DEVELOPMENT COMPANY. and
THE GLORIOUS REDLAND INVESTMENT PARTNERSHIP
and
CITY OF REDLANDS
91-469320
TABLE OF CONTENTS
Section Page
1 Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
2 Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3 Mutual Benefits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4 Interest of Developer. . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5 Binding Effect of Agreement. . . . . . . . . . . . . . . . . . . . . . 4
6 Project as a Private Undertaking. . . . . . . . . . . . . . . . . 4
7 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
8 Changes in Project. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
9 Hold Harmless. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
10 Vested Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
11 General Development of the Project. . . . . . . . . . . . . . . 6
12 Rules, Regulations and official Policies. . . . . . . . . 8
13 Amendment or Cancellation of Agreement. . . . . . . . . . . 9
14 Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
15 Periodic Review of Compliance With Agreement. . . . . 9
16 Events of Default. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
17 Institution of Legal Action. . . . . . . . . . . . . . . . . . . . . . 10
18 Waivers and Delays. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
19 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
20 Attorney' s Fees. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
21 Transfers and Assignments. . . . . . . . . . . . . . . . . . . . . . . . 11
22 Cooperation in the Event of Legal Challenge. . . . . . 11
23 Eminent Domain. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
24 Authority to Execute. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
25 Recordation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
26 Protection of Mortgage Holders. . . . . . . . . . . . . . . . . . . 12
27 Severability of Terms. . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
28 Subsequent Amendment to Authorizing Statute. . . . . . 13
29 Section Headings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
30 Incorporation of Recitals and Exhibits. . . . . . . . . . . 13
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35 Security for Developer' s Performance. . . . . . . . . . . . . 13
EXHIBIT
"A" LEGAL DESCRIPTION OF PROPERTY
"B" THE PROJECT
"C" PUBLIC INFRASTRUCTURE CONDITIONS
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DEVELOPMENT AGREEMENT
(Pursuant to Government Code
Sections 65864 - 65869.5)
THIS DEVELOPMENT AGREEMENT ("Agreement" ) is entered into on
September 3, 1991 , between BARTON DEVELOPMENT COMPANY, a California
corporation ( "Barton") and THE GLORIOUS REDLAND INVESTMENT
PARTNERSHIP, a California Limited Partnership ( "Glorious")
[collectively "Developer") , and the CITY OF REDLANDS, a municipal
corporation organized and existing under the laws of the State of
California ( "City") . Developer and City are sometimes collectively
referred to herein as the "parties. "
R E C I T A L S
This Agreement is predicated upon the following facts:
A. These Recitals refer to and utilize certain capitalized
terms which are defined in this Agreement. The parties intend to
refer to those definitions in conjunction with the use thereof in
these Recitals.
B. California Government Code ("Government Code") Sections
65864-65869. 5 (collectively the "Development Agreement Law")
authorize the City to enter into binding development agreements
with persons having a legal or equitable interest in real property
for the development of such property, all for the purpose of
strengthening the public planning process, encouraging private
participation and comprehensive planning and reducing the economic
costs of such development.
C. This Agreement is adopted pursuant to Government Code
Section 65865.
D. Developer has entered into an agreement to purchase, or
is the current fee owner, of approximately three hundred six (306)
acres of land as described on Exhibit "A" (the "Property" ) , which
is located in the City.
E. Developer proposes to develop a multi-phased master
planned business park project (the "Project" ) on the Property
requiring major investment in public facilities and substantial
front end investment in on-site and off-site improvements in order
to make the Project feasible.
F. The Property is located within the boundaries of the East
Valley Corridor Specific Plan ("Corridor Plan" ) which was adopted
as ordinance No. 2086 by the City Council of the City on September
5, 1989, pursuant to the provisions of Government Code Sections
65450, et seg.
G. The City ' s General Plan designation for the Property is
Urban Services District. The Property is located within a Special
Development land use designation under the Corridor Plan and is
contained entirely within a single Planned Development Envelope.
Developer and City desire to provide through this Development
Agreement development criteria and parameters of allowable
development applicable to the Property which will provide for
maximum, efficient utilization of the Property in accordance with
sound planning principles and the Corridor Plan as adopted by the
City.
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public hearing on this Agreement and made written recommendations
and findings on the Agreement to the City Council .
J. The City Council has found that this Agreement:
(a) Is consistent with the objectives, policies, general
land uses and programs specified in the City' s General Plan and the
Corridor Plan;
(b) Is compatible with the uses authorized in, and the
regulations prescribed for, the zoning district in which the
Property is located;
(c) Is in conformity with and will promote public
convenience, general welfare and good land use practice;
(d) Will not be detrimental to the public health, safety
and general welfare;
(e) Will not adversely affect the orderly development of
property or the preservation of property values; and
(f) Will promote and encourage the development of the
Project by providing a greater degree of requisite certainty.
K. On August 26, 1991 , the City Council of the City adopted
Ordinance No. 2170, approving this Agreement with Developer.
L. City has found and determined that the execution of this
Agreement is in the best interest of the public health, safety and
general welfare of City and its residents and that adopting this
Agreement constitutes a present exercise of its police power.
AGREEMENT
The parties agree as follows:
1 . Definitions.
1 . 1 "Agreement" is this Development Agreement.
1 . 2 "Agreement Date" is the date this Agreement is
approved by the City Council.
1 . 3 "Applicable Law of the Project" means the Corridor
Plan and Concept Plan, in so far as they pertain to the Property,
and all of those ordinances, resolutions, codes (except as provided
in Section 12 . 1 ) , rules, regulations and official policies of City
governing the development and use of the Property as of the
Agreement Date, including, without limitation, the permitted uses
of the Property, the density and intensity of use, the maximum
height and size of proposed buildings, the provisions for
reservation or dedication of land for public purposes, and the
design, improvement and construction standards and specifications
applicable to the development of the Property. Specifically, but
without limitation, the Applicable Law of the Project shall allow
Developer to develop the Project as a planned development with uses
allowed under the Corridor Plan and the Concept Plan and
specifically in accordance with the intensity, specifications and
phasing for the Project described in Exhibit "B. " To the extent
any of the foregoing are amended from time to time with the consent
of Developer, the Applicable Law of the Project shall include such
matters as so amended.
Af)93,19 1
Agreement Date. Subsequent amendments to the Corridor Plan shall
not, without the prior written consent of Developer, apply to the
Project or the Concept Plan.
1 . 7 "Effective Date" is that date which is the later to
occur of when: (a) the time for filing a referendum petition
relating to this Agreement expires if no such petition is filed
within such period; (b) the results of a referendum election are
declared by the City Council if a referendum petition is filed
within the applicable period; or (c) in the event of any legal
action relating to or affecting the validity or enforceability of
this Agreement or the Concept Plan, including without limitation
any action challenging the approval or validity of this Agreement
or the Concept Plan, or any referendum related to them, the date of
dismissal with prejudice of the action, or of final disposition of
the action by the court and exhaustion or termination of all
applicable periods for judicial review, whether by writ, appeal, or
otherwise.
1 .8 "Developer" is Barton Development Company, a
California corporation, and The Glorious Redland Investment
Partnership, a California limited partnership, and their successors
in interest to all or any part of the Property.
1 .9 "Project" is the proposed development of the
Property as a multi-phased master planned business park as
described in the Concept Plan and Exhibit "B. "
1 . 10 "Property" is the real property on which the Project
will be located as described on Exhibit "A" .
2 . Exhibits. The following documents are referred to in
this Agreement, attached hereto and incorporated herein by this
reference:
Exhibit Designation Description
A Legal Description of the Property
B The Project
C Public Infrastructure Conditions
3 . Mutual Benefits. This Agreement is entered into for the
purpose of carrying out the Project Plan for the Project in a
manner that will insure certain anticipated benefits to both City,
including, without limitation, residents of City, and Developer as
set forth in this section. City and Developer agree that certain
assurances on the part of each party as to the Project will be
necessary to achieve those desired benefits.
3 . 1 Benefits to City. The benefits to City (including,
without limitation, the residents of City) under this Agreement
include, but are not limited to: (a) improvements to roadways;
(b) an increase in property tax revenues and sales tax revenues to
be derived, by the City; (c) the creation of jobs within the City,
and (d) siting of another major medical services facility within
the City.
3 . 2 Benefits to Developer. Developer has expended and
will continue to expend substantial amounts of time and money on
the planning and infrastructure construction of the Project. In
addition, Developer will expend substantial amounts of time and
money in constructing public improvements and facilities and in
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is the fee owner of the Property; and (b) Developer has a legal
interest in the Property.
S . Binding Effect of Agreement. The burdens of this
Agreement bind and the benefits of this The
inure to the
successors in interest of the parties thereto.
6. Project as a Private Undertaking. It is specifically
understood and agreed by and between the parties hereto that the
development of the Project is a private development, that neither
party is acting as the agent of the other in any respect hereunder,
and that each party is an independent contracting entity with
respect to the terms, covenants and conditions contained in this
Agreement. No partnership, joint venture or other association of
any kind is formed by this Agreement. The only relationship
between City and Developer is that of a government entity
regulating the development of private property by the owner of such
property.
7 . Term. The term of this Agreement shall commence upon the
Effective Date and shall continue until all permits and approvals
required to complete the development of the Project have been
issued, provided that in no event shall such term exceed twenty
(20 ) years following the Effective Date of this Agreement.
8. Changes in Project. Developer shall not be entitled to
any change, modification, revision or alteration in the Project
relating to the permitted uses of the Property, the density or
intensity of use, the maximum height and size of proposed buildings
or the provision for reservation or dedication of land for public
purposes without review and approval by the City. Subject to the
foregoing provisions of this Section 8, City acknowledges that
Developer may seek new entitlements to use and amendments to
entitlements to use in connection with the development of the
Project. The approval of any such amendments or new entitlements
to use shall be in the sole discretion of the City in the manner
described in 11 . 4.
9 . Hold Harmless.
9. 1 By Devgloper. Developer agrees to and shall defend,
indemnify and hold harmless City, its elected officials, officers,
agents, employees, and representatives from: (a) liability for
damage or claims for damage for personal injury including death and
claims for property damage which may arise from the activities of
Developer or those of Developer' s contractors, subcontractors,
agents, employees or other persons acting on Developer' s behalf
which relate to the Project; and (b) any claims, costs and
liability arising as a result of any legal action brought against
City which challenges the validity of this Agreement, the Concept
Plan or any City proceedings relating to the approval of either of
such documents, or any of the terms and conditions herein. Nothing
in this section shall be construed to mean that Developer shall
hold City harmless and defend it from any claims of personal
injury, death or property damage arising from, or alleged to arise
from, the negligence, or any deliberately harmful act, willful or
gross negligence on the part of City, its elected representatives,
officers, agents and employees.
9 . 2 By City. City agrees to and shall hold harmless
Developer, its officers, agents, employees, partners and
representatives from liability for damage or claims for damage for
personal injury including death and claims for property damage
which may arise from the activities of rii-v nr i-ht'%=A -%f r4 +-lr' w
9 -46932()
agrees that, after execution of this Agreement, subsequent
discretionary reviews, actions and approvals are required for
Developer' s construction of the Project. Because the Project will
be constructed in phases, Developer and City agree, with reference
to City Municipal Code Section 18.220. 260, that it is not
practicable to hold the public hearing on this Agreement concurrent
with all related land use approvals required for the Project. With
respect to Government Code Section 65865 . 2, the development
regulations governing subsequent discretionary actions are the
Applicable Law of the Project. Upon submission by Developer of all
appropriate applications for such subsequent discretionary
approvals for the Project, City shall promptly commence and
diligently prosecute all procedures necessary to authorize such
approvals, including without limitation: (a) holding all required
public hearings and giving of required notice of such hearings; and
(b) granting of the approval applied for, provided that it is
consistent with the Project. As provided in Government Code
Section 65865.2, any subsequent discretionary actions by City or
any conditions, terms, restrictions and requirements for such
discretionary actions by City shall not prevent the development of
the Project for the uses and to the minimum density or intensity of
development set forth in Exhibit "B. " City, therefore, agrees to
the following:
10 . 1 No Conflicting Enactments. Neither the City Council
of City nor any other agency of City shall enact an ordinance,
policy, rule, regulation or other measure (collectively "City
Action") which relates to the rate, timing or sequencing of the
development or construction of all or any part of the Project or
which is otherwise in conflict with the Project as described in
this Agreement. In the event any City Action is so enacted, City
agrees that such City Action shall not apply to the Project to the
extent that the same is in conflict with any of the express
provisions of this Agreement, including without limitation the
minimum development intensity, specifications and phrasings
described in Exhibit B.
10. 2 Intent of Parties. In addition to and not in
limitation of the foregoing, it is the intent of Developer and City
that no moratorium or other limitation (whether relating to the
rate, timing or sequencing of the development or construction of
all or any part of the Project and whether or not enacted by
initiative or otherwise) affecting subdivision maps, building
permits, occupancy certificates or other entitlements to use
approved, issued or granted within City, or portions of City, shall
apply to the Project to the extent such moratorium or other
limitation is in conflict with this Agreement. Notwithstanding the
foregoing, should an ordinance, general plan or zoning amendment,
measure, moratorium, policy, rule, regulation or other limitation
enacted by citizens of City through the initiative process be
determined by a court of competent jurisdiction to invalidate or
prevail over all or any part of this Agreement, Developer shall
have no recourse against City pursuant to this Agreement, but shall
retain all other rights, claims and causes of action at law or in
equity which Developer may have independent of this Agreement. The
foregoing shall not be deemed to limit the Developer' s right to
appeal any determination of such ordinance, general plan or zoning
amendment, measure, policy, rule, regulation, moratorium or other
limitation which purports to invalidate or prevail over all or any
part of this Agreement. Subject to the provisions of Section 9. 1 ,
City agrees to cooperate with Developer in all reasonable manners
in order to keep this Agreement in full force and effect.
10 . 3 Subsequent Review. All subsequent review of
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maximums; provided that the setback will be increased one-half
( 1 /2) foot for every foot of building height above seventy-five
(75) feet to a maximum setback of fifty (50) feet.
11 . General Development of the Protect.
11 . 1 Prosect. while this Agreement is in effect,
Developer shall have a vested right to develop the Project in
accordance with the terms and conditions of this Agreement, and
City shall have the right to control the development of the Project
in accordance with the terms and conditions of this Agreement.
Except as otherwise specified in this Agreement, the Applicable Law
of the Project shall control the overall design, development and
construction of the Project. The permitted uses of the Property,
the density and intensity of use, the maximum height and size of
proposed buildings, the provision for reservation and dedication of
land for public purposes and other terms and conditions of
development applicable to the Property shall be those set forth in
the Applicable Law of the Project.
11 . 2 Phasing and Timing of Development. The parties
acknowledge that although Developer currently anticipates that the
Project will be phased and constructed in increments over an
approximately twenty (20) year time frame, at the present time
Developer cannot predict when or the order in which Project phases
will be developed. Such decisions depend upon numerous factors
which are not within the control of Developer, such as market
orientation and demand, interest rates, competition and other
similar factors. To the extent permitted by the this Agreement,
Developer shall 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 judgment so long as the
Project is constructed as an integrated master planned development
as contemplated by the Concept Plan. City agrees that Developer
shall be entitled to apply for tentative maps, vesting tentative
maps, building permits, occupancy certificates and other
entitlements to use at any time, in a timely manner, provided that
such application is made in accordance with State and local law.
11 . 3 Effect of Agreement on Land Use Regulations . The
rules, regulations and official policies governing permitted uses
of the Property, the density and intensity of use of the Property,
the maximum height and size of proposed buildings and the design,
improvement and construction standards and specifications
applicable to development of the Property are the Applicable Law of
the Project, except as provided in Section 12 . 1 . In connection
with any approval which the City is permitted or has the right to
make under this Agreement relating to the Project, the City shall
exercise its discretion to take action in a timely manner and which
complies and is consistent with the Project and the standards,
terms and conditions contained in this Agreement, and in a manner
which will not interfere with the development of the Project for
the uses and to the height, density and intensity specified in this
Agreement or with the rate of development selected by Developer.
The City shall accept for processing and timely review and act on
all applications for further land use entitlement approvals with
respect to the Project called for or required under this Agreement
in a timely manner. Such application shall be processed in the
normal manner for processing such matters.
11 . 4 Administrative Changes and Amendments. The parties
acknowledge that refinements and further development of the Project
may demonstrate that changes are appropriate with respect to the
details and performance of the parties under this Agreement. The
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time to time as necessary, with approval by City and Developer.
The determination of whether such changes or adjustments shall be
accomplished by administrative amendments or review by the Planning
Commission shall be made by the City Director of Community
Development, at his sole discretion. Any such administrative
changes or amendments shall not be deemed to be an amendment to
this Agreement under Government Code Section 65868, and unless
otherwise required by law, no such administrative amendments shall
require prior notice or hearing. Notwithstanding the foregoing,
the following matters shall not be considered administrative
changes or amendments, but shall be considered substantive
amendments which shall be reviewed by the Planning Commission and
approved by the City Council;
(a) Alteration of the permitted uses of the Property;
(b) Increase in the density or intensity of use or the
number of lots;
(c) Increase in the maximum height and size in permitted
buildings;
(d) Deletion of a requirement for the reservation or
dedication of land for public purposes; and
(e) Any amendment or change requiring a subsequent or
supplemental environmental review.
11 . 5 Mello-Roos Community Facilities District; other
Assessment District or Financing Mechanisms. Pursuant to Chapter
2. 5 (commencing with Section 53312) Part I, Division 2, Title 5 of
the Government Code of the State of California, commonly known as
the "Mello-Roos Community Facility Act of 1982, " Developer may, at
its sole election, petition the City Council of City to establish
a Community Facilities District including the Property for the
purpose of acquiring, constructing and financing through the sale
of bonds the acquisition and construction of certain public
facilities described in Exhibit "C" hereto, which facilities in
whole or in part are necessary to meet increased demands placed on
the City as a result of the development of Developer' s Property.
Alternatively, or in addition thereof, Developer may request that
the City initiate and complete proceedings under the Municipal
Improvement Act of 1911 , the Municipal Improvement Act of 1913, the
Improvement Bond Act of 1915, the Landscaping and Lighting Act of
1972, or any and all other available financing mechanisms to
provide public financing for the construction of public
improvements on the Property. If so requested by Developer, City
shall cooperate with Developer and use its best efforts in taking
all steps necessary to cause the community facilities district or
other entity to be formed and to issue bonds for such purposes.
Developer recognizes that City may, on its own initiative and
without obtaining the prior consent of Developer to do so, initiate
proceedings for the formation of any community facilities district
or other special tax district of the type described in this
Section. However, the City shall determine which of the public
improvements will be financed with the proceeds of the sale of the
bonds, the timing of the issuance and sale of the bonds and the
amount of the bonds which will be issued and sold based on
prevailing municipal financing practices and criteria; provided
that City will in good faith cooperate with Developer and other
property owners within the community facilities district and give
first priority to satisfying the timing requirements of Section G
of the Mitigation Monitoring Plan in such an order to allow the
development of the Project and other proposed projects in
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11 . 7 Assessments and Fees. City shall not, without the
prior written consent of Developer, impose any benefit assessment,
or impact fee applicable to the Property, or the development of the
Project, or any portion thereof, except assessments and fees
imposed upon, and having a benefit area consisting of land within
the City boundaries and of no less than an area bounded by the
Santa Ana River, Mountain View Avenue, Redlands Boulevard, and
Tennessee Avenue or of general application to developments then
located in the City. Fees and assessments payable to City shall be
at rates applicable on the date the fee is due and payable.
11 .8 Subsequent Actions. City shall timely process, in
a timely manner for processing such matters, any necessary
entitlements to use, including parcel maps, vesting tentative tract
maps, tentative tract maps, conditional use permits, or other
discretionary approvals or entitlements to use contemplated by the
Project, and any grading, construction or other permits filed by
Developer in accordance with the substantive development standards
set forth in the Applicable Law of the Project. The term of any
tentative map filed for the Property within the terms of this
Agreement shall automatically be extended for the term of this
Agreement.
11 .9 Approval Conditions. Developer, in order to
mitigate certain impacts development of the Project will have and
to provide City with other benefits, shall comply with the
conditions contained in Exhibit "C. " City agrees not to impose any
other conditions, fees, charges, assessments or other exactions
upon any of the subsequent approvals necessary for such
development, or otherwise, except as permitted in this subparagraph
and Paragraphs 11 . 5 and 11 . 7 of the Agreement.
City acknowledges and agrees that for purposes of any
subsequent approvals necessary for development of the Project, City
has already considered the orderly development of the Project and
abutting properties and has imposed all necessary dedication and
improvement requirements as conditions to the approval of this
Agreement as set forth in Exhibit "C" and that the Property is
adequate in size and shape for the intended multi-phased master
planned business park and that the necessary street and highway
system as augmented by such conditions is adequate to accommodate
the traffic to be generated by the Project. City further
acknowledges and agrees that, except with respect to those uses
which, under the Redlands Municipal Code, require a conditional use
permit ( "CUP Uses") the only additional conditions City may impose
on subsequent approvals will relate only to the matters
specifically included in Redlands Municipal Code Section 18. 12 .080
D. 3 subparagraphs a. through h. (on-site amenities and
requirements) and Sections 18. 12. 150 and 18. 12 . 160 (architectural
review) .
12 . Rules, Regulations and Official Policies.
12 . 1 New Rules. This Agreement shall not prevent City
from applying new rules, regulations and policies relating to
Uniform Codes including, but not limited to, the Uniform Building
Code, Uniform Electrical Code, Uniform Mechanical Code and Uniform
Fire Code, which become applicable throughout City.
12 . 2 New Laws. In the event that state (including any
state, regional agencies or district) or federal laws or
regulations, enacted after this Agreement is executed, prevent or
preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or
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prevent City in subsequent actions applicable to the Property from
applying new rules, regulations and policies which do not conflict
with those existing rules, regulations and policies set forth in
the Applicable Law of the Project, nor shall this Agreement prevent
City from denying or conditionally approving any subsequent
development project application on the basis of such existing or
new rules, regulations or policies; provided that Developer' s
vested right to develop the Project pursuant to Section 10 above is
not impaired by any such application or actions by City.
13. Amendment or Cancellation of Agreement. This Agreement
may be amended or canceled in whole or in part only by: (a) mutual
consent of the parties in the manner provided for in Government
Code Section 65868; or (b) by the City Council of the City in
accordance with the provisions of City Municipal Code Section
18 . 220 . 230.
14. Enforcement. Unless amended or canceled as provided in
Section 13, or modified or suspended pursuant to Government Code
Section 65869 .5, and except as otherwise provided in Government
Code Section 65865. 3(b) , this Agreement is enforceable by either
party hereto notwithstanding any change in any applicable general
or specific plan, zoning, subdivision or building regulation or
other applicable law or regulation adopted by City (or by the
voters of City) unless found by a court of competent and final
jurisdiction to prevail over this Agreement.
15. Periodic Review of Compliance With Agreement.
15 . 1 Periodic Review. City and Developer shall review
this Agreement at least once every twelve (12) months from the date
this Agreement is executed in accordance with the provisions of
City Municipal Code Section 18.220. 180. The cost of such periodic
review shall be borne by Developer pursuant to a City ordinance
providing for the same.
15 . 2 Good Faith Compliance. During each periodic review,
each party is required to demonstrate good faith compliance with
the terms of this Agreement. Each party agrees to furnish such
reasonable evidence of good faith compliance as the other party, in
the exercise of its reasonable discretion, may require.
16. Events of Default.
16. 1 Default by Developer. If City determines on the
basis of substantial evidence that Developer has not complied in
good faith with the terms and conditions of this Agreement, City
shall, by written notice to Developer, specify the manner in which
Developer has failed to so comply and state the steps Developer
must take to bring itself into compliance. If, within ninety (90)
days after the effective date of notice from City specifying the
manner in which Developer has failed to so comply, Developer does
not commence all steps reasonably necessary to bring itself into
compliance as required and thereafter diligently pursue such steps
to completion, then Developer shall be deemed to be in default
under the terms of this Agreement and City may cancel this
Agreement in accordance with the provisions of City Municipal Code
Section 18. 220 . 230.
16.2 Default by City. If Developer determines on the
basis of substantial evidence that City has not complied in good
faith with the terms and conditions of this Agreement, Developer
shall, by written notice to City, specify the manner in which City
has failed to so comply and state the steps City must take to bring
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16. 3 Specific Performance Remedy. Due to the nature and
scope of the Project, it will not be practical or possible to
restore the Property to its natural condition once implementation
of this Agreement has begun. After such implementation, Developer
may be foreclosed from other choices it may have had to utilize the
Property and provide for other benefits. Developer has invested
significant time and resources and performed extensive planning and
processing of the Project in agreeing to the terms of this
Agreement and will be investing even more substantial time and
resources in implementing the Project in reliance upon the terms of
this Agreement, and it is not possible to determine the sum of
money which would adequately compensate Developer for such efforts .
For the above reasons, City and Developer agree that damages would
not be an adequate remedy if City fails to carry out its
obligations under this Agreement. Therefore, specific performance
of this Agreement is the only remedy which would compensate
Developer if City fails to carry out its obligations under this
Agreement, and City hereby agrees that Developer shall be entitled
to specific performance in the event of a default by City
hereunder. Notwithstanding the foregoing, nothing in this
Agreement is intended to deprive Developer from recovering
appropriate damages in the event that the terms of this Agreement
are breached. City and Developer acknowledge that, if Developer
fails to carry out its obligations under this Agreement, City shall
have the right to refuse to issue any permits or other approvals
which Developer would not otherwise have been entitled to pursuant
to this Agreement. Therefore, City' s remedy of terminating this
Agreement shall be sufficient in most circumstances if Developer
fails to carry out its obligations hereunder. Notwithstanding the
foregoing, if City issues a permit or other approval pursuant to
this Agreement in reliance upon a specified condition being
satisfied by Developer in the future, and if Developer then fails
to satisfy such condition, City shall be entitled to specific
performance for the sole purpose of causing Developer to satisfy
such condition. The City' s' right of specific performance shall be
limited to those circumstances set forth above, and City shall have
no right to seek specific performance to cause Developer to
otherwise proceed with the development of the Project in any
manner.
17 . Institution of Legal Action. In addition to any other
rights or remedies, either party may institute legal action to
cure, correct or remedy any default, to enforce any covenants or
agreements herein, to enjoin any threatened or attempted violation
hereof, to recover damages for any default, or to obtain any other
remedies consistent with the purpose of this Agreement. Any such
legal action shall be brought in the Superior Court for San
Bernardino County, California.
18. Waivers and Delays.
18. 1 Waiver. Failure by a party to insist upon the
strict performance of any of the provisions of this Agreement by
the other party, and failure by a party to exercise its rights upon
a default by the other party hereto, shall not constitute a waiver
of such party' s right to demand strict compliance by such other
party in the future.
18. 2 Third Parties. Nonperformance shall not be excused
because of a failure of a third person except as provided in
Section 18.3 below.
18. 3 Force Maieure. Neither party shall be deemed to be
in default or failure or delay in performance of any of its
91-469320
19 . Notices. All notices required or provided for under this
Agreement shall be in writing and delivered in person and deposited
in the United States mail, postage prepaid and addressed as
follows:
TO CITY: City of Redlands
30 Cajon
P.O. Box 3005
Redlands, California 92373
Attn: City Manager and
Community Development Director
TO DEVELOPER: Barton Development Company
10535 Foothill Blvd. , Suite 350
Rancho Cucamonga, CA 91730
Attn: James E. Barton
Either party may change the address stated herein by giving notice,
in writing, to the other party and thereafter notices shall be
addressed and submitted to the new address.
20. Attorney' s Fegs. In the event any action is commenced to
enforce or interpret the terms or conditions of this Agreement, the
prevailing party shall, in addition to any costs or other relief,
be entitled to an award of its reasonable attorney' s fees.
21 . Transfers and Assignments.
21 . 1 Right to Assign. Developer shall have the right to
sell, assign or transfer this Agreement, and any and all of its
rights, duties and obligations hereunder, to any person or entity
at any time during the term of this Agreement, provided, however,
in no event shall the rights, duties and obligations conferred upon
Developer pursuant to this Agreement be at any time so transferred
or assigned except through a transfer of an interest of Developer
in the Property, or portion thereof, so transferred. In the event
of any such assignment, either the transferee or Developer shall be
liable for the performance of all obligations of Developer. The
Developer shall notify City in writing of the transfer of such
obligations within thirty (30) days of the effective date of the
transfer.
21 .2 Release Upon Transfer. Upon the sale, transfer or
assignment of Developer' s rights and interest under this Agreement
as permitted pursuant to Section 21 . 1 , Developer shall be released
from its obligations under this Agreement or other agreements
assumed by transferee with respect to the Property, or portion
thereof, so transferred provided that: (a) Developer is not then in
default under the Agreement; (b) Developer or transferee has
provided the City notice of such transfer; and (c) the transferee
executes and delivers to City a written agreement in which: W the
name and address of the transferee is set forth; and (ii) the
transferee expressly and unconditionally assumes all of the
obligations of Developer under this Agreement with respect to the
Property, or a portion thereof, so transferred.
Notwithstanding Section 5 and Section 21 . 1 of this
Agreement, in the event that Kaiser Foundation Hospitals, a
California non-profit public benefit corporation ( "Kaiser" ) ,
purchases a portion of the Property (the "Kaiser Parcel" ) and
Kaiser and the City execute and record a development agreement
pertaining to the Kaiser Parcel, then at the time when such
development agreement is recorded, this Agreement shall cease to
apply to the Kaiser Parcel and the owner of the Kaiser Parcel, as
provision of this Agreement, the parties hereby agree to cooperate
in defending such action. Except as provided in Section 9 . 1 , each
party shall pay its own expenses in connection with such defense.
In the event of any litigation challenging the effectiveness of
this Agreement, or any portion hereof, this Agreement shall remain
in full force and effect while such litigation, including any
appellate review, is pending.
23. Eminent Domain. No provision of his Agreement shall be
construed to limit or restrict the exercise by City of its power of
eminent domain.
24. Authority to Execute. The person or persons executing
this Agreement on behalf of Developer warrant and represent that
they have the authority to execute this Agreement on behalf of
their corporation, partnership or business entity and warrant and
represent that they have the authority to bind Developer to the
performance of its obligations hereunder.
25 . Recordation. This Agreement and any amendment or
cancellation hereto shall be recorded in the office of Official
Records of the County of San Bernardino, by the City Clerk within
the period required by Section 65868.5 of the Government Code.
26. Protection of Mortgage Holders. Developer and City agree
that this Agreement shall not prevent or limit Developer, in any
manner, at Developer' s sole discretion, from encumbering the
Property or any portion thereof or any improvement thereon by any
mortgage, deed of trust or other security device securing financing
with respect to the Property. City acknowledges that the lenders
providing such financing ( "Mortgagees") may require certain
Agreement interpretations and modifications and agrees upon
request, from time to time, to meet with Developer and
representatives of such Mortgagees to negotiate in good faith any
such request for interpretation or modification. City will not
unreasonably withhold its consent to any such requested
interpretation or modification provided such interpretation or
modification is consistent with the intent and purposes of this
Agreement. Any mortgagee of all or any portion of the Property
shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of
this Agreement shall defeat, render invalid, diminish or
impair the lien of any mortgage on all or any portion of the
Property made in good faith and for value, unless otherwise
required by law.
(b) Any Mortgagee of a mortgage or deed of trust
encumbering all or any portion of the Property which has
submitted a request in writing to the City in the manner
specified herein for giving notices shall be entitled to
receive written notification from City of any default by
Developer in the performance of Developer' s obligations under
this Agreement.
(c) If City timely receives a request from a Mortgagee
requesting a copy of any notice of default given to Developer
under the terms of this Agreement, City shall provide a copy
of that notice to the Mortgagee within ten ( 10) days of
sending the notice of default to Developer. The Mortgagee
shall have the right, but not the obligation, to cure the
default during the remaining cure period allowed such party
under this Agreement.
91-469320
performance; provided, however, that any sale, transfer or
assignment by any Mortgagee in possession shall be subject to
the provisions of Section 21 of this Agreement.
27. Severability of Terms. If any term, provision, covenant
or condition of this Agreement shall be determined invalid, void or
unenforceable, the remainder of this Agreement shall not be
affected thereby to the extent such remaining provisions are not
rendered impractical to enforce.
28. Subsequent Amendment to Authorizing Statute. This
Agreement has been entered into in reliance upon the provisions of
the Development Agreement Law in effect as of the Agreement Date.
Accordingly, to the extent the subsequent amendment to the
Government Code would affect the provisions of this Agreement, such
amendment shall not be applicable to the Agreement unless necessary
for this Agreement to be enforceable or unless this Agreement is
modified pursuant to the provisions set forth in the Agreement and
Government Code Section 65868 as in effect on the Agreement Date.
29. Section Headings. All section headings and subheadings
are inserted for convenience only and shall not affect any
construction or interpretation of this Agreement.
30. incorporation of Recitals and Exhibits. Recitals A
through L and attached Exhibits "A, " "B" and "C" are hereby
incorporated herein by this reference as though fully set forth.
31 . Rules of Construction and Miscellaneous Terms.
31 . 1 Gender. The singular includes the plural; the
masculine gender includes the feminine; "shall" is mandatory, "may"
is permissive.
31 .2 Time of Essence. Time is of the essence regarding
each provision of this Agreement in which time is an element.
31 . 3 Coopgration. Each party covenants to take such
reasonable actions and execute all documents that may be necessary
to achieve the purposes and objectives of this Agreement.
32 . Effect on Title. Developer and City agree that this
Agreement shall not create an encumbrance on any portion of the
Property which is sold to an ultimate user of all or any portion of
the Property.
33. Incorporation of Cgnditions from Environmental Review.
In accordance with City Municipal Code Section 18. 220. 070B, all
conditions and mitigation measures imposed on the Project by City
to eliminate or reduce to a level of insignificance any adverse
impacts resulting from the Project are hereby incorporated by this
reference into this Agreement. No building permit or other
development permit shall be issued for the Project unless such
conditions and mitigation measures have been complied with. For
purposes of this section, "compliance" shall be determined by
reference to the Mitigation Monitoring Plan adopted by City for the
Project on July 16, 1991 .
34. Liability Insurance. In addition to its obligations
under the provisions of Section 9. 1 hereof, Developer agrees that
any policy of liability insurance (which policy may include
coverage of bodily injury liability and property damage liability)
which developer maintains in force with respect to the Project
shall contain an additional insured endorsement naming City. ; +m
_,3 - __i I ..... -
91-46932f,
35. Sgcurity for Developer's Performance. In order to assure
City that Developer will perform its obligations hereunder with
respect to offsite improvements constructed by Developer within the
public right of way, Developer agrees that, prior to the
commencement by Developer of construction of each item of such
offsite improvements, Developer will obtain and furnish to City a
set aside letter covering such item of offsite improvements issued
by Developer' s lender, or any other person or entity reasonably
acceptable to City ( "the Security Device") . The Security Device
shall be: (a) in such amount as the parties hereto may then agree,
which amount shall in no event exceed 125% of the estimated cost of
such offsite improvements; (b) in form and content reasonably
acceptable to City; and (c) delivered to City prior to commencement
of construction of each item of such offsite improvements. Upon
completion of construction and acceptance by City of each item of
such offsite improvements, City will release to Developer the
Security Device. The provisions of this Section shall not apply to
offsite improvements constructed pursuant to the provisions of
Section 11 . 5 hereof.
The parties have executed this Development Agreement on the
day and year first written above.
BARTON DEVELOPMENT COMPANY,
a California corporation
B N'w &+ bks
Y
James E. Barton
Its; Presid nt
("Barton")
THE GLORIOUS REMAND INVESTMENT
PARTNERSHIP, a California
Limited Partnership
By:
C ng Hdf Hou,
Its: General Partner
( "Glorious")
"Developer"
CITY OF REDLANDS,
a municipal corporation
j
y; a. xA AA
Aif
M yo
b
Signed and Certified that a copy
of this document has been delivered
to the Mayor of the City
By:
City Clerk
Approved as to its form:
u!h't.
STATE OF CALIFORNIA )
ss.
COUNTY OF 60w Auaf r Y7 )
On this 15101 day of 1991 , before me, C r
? i .D a , a Notary Publ .c in and for said County and State,
personally appeared JAMES E. BARTON, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the
President of BARTON DEVELOPMENT COMPANY, a California corporation,
the corporation that executed the within instrument and
acknowledged to me that said corporation executed it.
t! to A,
JEANME ROBE
NOTARY BOND FILED IN
NOTARY LI LIF A Not y Public inland for said
4D $0 ARD? CES
County and State
MY rrak Expo April .
STATE OF CALIFORNIA )
ss.
COUNTY OF � i t atir )
On this 110 day of ,5 4-rm — 1991 , before me, jjj a elite'
a a's Ofl , a Notary Public in and for said County and State,
personally appeared CHENG HUI HOU, personally known to me (or
proved to me on the basis of satisfactory evidence) to be the
General Partner of THE GLORIOUS REDLAND INVESTMENT PARTNERSHIP, A
CALIFORNIA LIMITED PARTNERSHIP, the partnership that executed the
within instrument and acknowledged to me that said partnership
executed it.
WITNESS my hand and official seal.
+
JEANETTE JEANROBERTSON ZAZYI .
NOTARYFILED IN � Notar Public in and for sal
IA�asivo aunty and State
My Commisston Expires April 2, 1993
STATE OF CALIFORNIA )
ss.
COUNTY OF SAN BERNARDINO )
On this day of t)L/e d �' , 1991 , before me,
�` n '2 a Notary Publ 'p in and for said County
and State, personally appeared l- e-" . _y 4 �� personally
known to me (or proved to me on the basis of satisfactory evidence)
to be the person who executed this instrument as Mayor of the City
of Redlands and acknowledged to me that the City of Redlands
executed it.
WITNESS my hand and official seal.
u Notary Public in and.-1 'r—`said
OFFICZ" County and State
SEZ
aI NOTARY PUBLIC: C ALQFCI NIA
SAN SERNARDINC)COUNTY
y .lam..
EXHIBIT "A"
"Developer' s Property"
[attach legal description]
(EXHIBIT "A" ) (Page 1 of 1)
1/R/B362/04R/Reimburs.Agm
P4
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x
O Pa
C. LtJ!gONIA AVENUE WEST OF B STREET
TO aOUTHERLY TERMINUS OF STREET
E
1) Between B Street and Bryn Mawr,
dedicate to provide for a 52
foot half street northerly of
street centerline. g
2) Between B Street and Bryn Mawr,
construct standard curb and
gutter 40 feet northerly of
street centerline. g
3) Between Bryn Mawr Street and
Victoria Avenue, dedicate to
provide for a 104 foot street. %
4) Between Bryn Mawr Street and
Victoria Avenue, construct
standard curb and gutter of 40
feet each side of centerline. %
5) Between Victoria Avenue and
Research Street, dedicate to
provide for a 66 foot street. R
6) Between Victoria Avenue and
Research Street, construct
standard curb and gutter 26 feet
each side of street centerline. %
7) Between Research Street and east
side of Southern California
Edison easement, dedicate to
provide for a 33 foot half
street. g
8) Between Research Street and east
side of Southern California
Edison easement, construct
standard curb and gutter 26 1/2
feet northerly of street
centerline. X-
9) Between east side of Southern
California Edison easement and
west boundary of parcel 10 of
the Concept Plan, dedicate to
provide for a 33 foot half
91-46932", 43
w
x H
N cn EE—+
10) Between east side of Southern
California Edison easement and
west boundary of parcel 10 of
the Concept Plan, construct
standard curb and gutter 26 1/2
feet northerly of street
centerline. X
11) Construct standard street
section between curb and street
centerline. X x
12) Use traffic index of 9.0. X X
13) Install master storm drain as
required by the Public Works
Department. X X X
D. LUGONIA AVENUE EAST OF B STREET
TO CALIFORNIA
1) Dedicate to provide for a 52
foot half street northerly of
street centerline. X
2) Construct standard curb and
gutter 40 feet northerly of
street centerline. X
3) Construct standard street
section between curb and street
centerline. X
4) Use traffic index of 9.0. X
5) Install master storm drain as
required by the Public Works
Department. X X
E. VICTORIA AVENUE FROM EAST SIDE
OE SOUTHERN CALIFORNIA EDISON
EASEMENT TO ITS INTERSECTION
WITH LUGONIA AVENUE
1) Dedicate to provide for a 104
foot street between Bryn Mawr
Avenue and West side of Southern
California Edison easement. X
2) Construct standard curb and
gutter 40 feet each side of
A,
Z-
4) ,
4) , Use traffic index of 9.0. X-
5) Install master storm drains as
required by the Public Works
Department. X X
F. VICTORIA AVENUE EAST OF MOUNTAIN
VIEW TO EAST SIDE OF SOUTHERN
CALIFORNI'A _EDISON EASEMENT
1) Dedicate to provide for a 104
foot street between West side of
Southern California Edison
easement and Mountain View. X X
2) Construct standard curb and
gutter 40 feet each side of
street centerline. X X
3) Construct standard street
section between new curbs. X X
4) Use traffic index of 9.0. X X
5) Install master storm drain as
required by the Public Works
Department. X X X
G. SAN BERNARDINO AVENUE
1) Dedicate 18.75 feet to provide
for 60 foot half street
southerly of street centerline
including a sidewalk easement. X
2) Construct standard curb and
gutter 52 feet each side of
street centerline. X
3) Construct standard street
section between new curb and
street centerline. X
4) Use traffic index of 9. 0. X
5) Install water mains as required
by the Public Works Department. X
6) Install sewer mains as required
by the Public Works Department. X
7) Install master storm drain as
a, c�
9 ' '61320
H. CALIFORNIA STREET - ALMOND
AVENUE TO SAN BERNARDINO &VENUE
1) Dedicate 23 .75 feet to provide
for 65 foot half street westerly
of street centerline. X
2) Construct standard curb and
gutter 59 feet westerly of
street centerline including a
raised median island. X
3) Construct standard street
section between new curb and
street centerline. X
4) Provide one lane of traffic
northbound and one lane of
traffic southbound. x
5) Obtain right-of-way as necessary
to provide two lanes of traffic
northbound and two lanes of
traffic southbound. R
6) Construct standard street
section to provide two lanes of
traffic northbound and two lanes
of traffic southbound. X
7) If Barton has not performed 5)
and 6) above as of the date
Kaiser commences Phase 2, then
Kaiser shall perform 5) and 6)
as a condition to Kaiser -
Phase 2 . X
I. CALIFORNIA STREET - ALMOND
AVENUE TO LUGONIA AVENUE
1) Dedicate 23.75 feet to provide
for 65 foot half street westerly
of street centerline. X
2) Construct standard curb and
gutter 59 feet westerly of
street centerline including a
raised median island and 10 feet
easterly of street centerline. X
3) Construct standard street
91-469320
P4
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0
4) Provide one lane of traffic
northbound and one lane of
traffic southbound. X
5) obtain right-of-way as necessary
to provide two lanes of traffic
northbound and two lanes of
traffic southbound. X
6) Construct standard street
section to provide two lanes of
traffic northbound and two lanes
of traffic southbound. X
J. CALIFORNIA STREET - LUGONIA
AYENIIE TO EASTBOUND I-10 RAMPS
1) Restripe to provide one lane of
traffic northbound and one lane
of traffic southbound. X
2) Widen street to provide two
lanes of traffic northbound and
two lanes of traffic southbound. X
K. CALIFORNIA STREET -
MISCELLANEOUS
1) Use traffic index of 9.0 X X
2) Install water main as required
by the Public Works Department. X X
3) Install sewer mains as required
by the Public Works Department. X X X
4) Restrict all driveways to right-
turns only. X X X X _
L. STREETS A, .B, C, D AND ALMOND
AVENUE
1) Dedicate to provide for 88 foot
street X
2) Construct standard curb and
gutter 32 feet each side of
street centerline. X X
3) Construct standard street
section between new curbs. X X
20
91-469t3
01
6) Install sewer mains as required
by the Public Works Department. X X
7) Install master storm drain as
required by the Public Works
Department. X X X
M. STREET E
1) Dedicate to provide for 66 foot
street. X
2) Construct standard curb and
gutter 26 feet each side of
street centerline. X
3) Construct standard street
section between new curbs. X
4) Use traffic index of 8.0. X
5) Install water mains as required
by the Public Works Department. X
6) Install sewer mains as required
by the Public Works Department. X
N. GENERAL CONSTRUCTION
REOU_IREMENTS
1) Construct standard sidewalk
along street frontage including
handicapped ramps at curb
returns. X X X X X
2) Install sodium vapor ornamental
street lights per spacing for
Public Works Engineering
Administration standard
specifications. X X X X X
3) Install street name sign posts
as required. X X X X X
4) Install non-potable water
systems for landscape irrigation
use as required by the Public
Works Department. Specific
requirements will be determined
at the time of future
development. X X X X I X
94
U)
5) Install separate domestic and
irrigation services to each lot
as required by the Public Works
Department. If any lot is
further subdivided, additional
domestic and irrigation services
shall be installed to each new
lot created. x x x x x
6) Install Fire Hydrants as
required by the City of Redlands
Fire Department. x X I X X X
7) Install sewer laterals to the
property line of each lot as
required by the Public Works
Department. x x - X x
8) All active irrigation lines in
the street right-of-way shall be
replaced with either steel or 0-
900 PVC Pipe. X X I X
O. GENERAL CONSTRUCTION FEE
REQUIREMENTS
1) Pay for street name signs and
pay for stop signs as required. X , x x x x
2) Pay the Watermain Frontage
charge on a dollar per foot of
frontage basis on Lugonia Avenue
as a condition to the Final
Approval. x x x
3) Pay the Sewermain Frontage
Charge on a dollar per foot of
frontage basis as a condition of
Final Approval for Mountain
Avenue, Lugonia Avenue, San
Bernardino Avenue. x x x
W
e-{ N Cfl H
0 C4 44
W W Wz,
P. GEHERA.L BLULDING CONSTRUCTION
FEE REQUIREMENT
1) Pay the Water Source Acquisition
Charge on a dollar per 100 cu.
ft. estimated monthly
consumption basis as a condition
of approval of an application
for a water connection prior to
meter installation. The fees
will be reviewed at the time of
Building Permit issuance and
fees will be based on specific
uses proposed. % % % % %
2) Pay the Water Capital
Improvement Charge on a dollar
per 100 cu. ft. estimated
monthly consumption basis as a
condition of approval of
application for a meter
connection prior to meter
installation. The fees will be
reviewed at the time of Building
Permit issuance and fees will be
based on specific uses proposed. % % % % %
3) Pay the Sewer Capital
Improvement Charge on a 100 gpd
estimated flow basis as a
condition of issuance of the
Building Permit. The fees will
be reviewed at the time of
building permit issuance based
on specific uses proposed. % % % % %
Q. INSTALLATION OF TRAFFIC SIGNALS
AS PROVIDED IN SECTION G.3. OF
THE PROJECT MITIGATION
MONITORING PROGRAM
1) Install traffic signals at
California Street and San
Bernardino Avenue. % %
2) Install traffic signals at
California Street/Almond Avenue. X1 I X - 1---
3) Install traffic signals at
California Street/Luaonia
Of
91-469,3o,,,
R, PL4 04
4) Install traffic signals at
California Street/Westbound I-10
ramps. x x x
5) Install traffic signals at
California Street/Eastbound I-10
ramps. x x
6) Install traffic signals at
Mountain View Avenue/Lugonia
Avenue. x
7) Install traffic signals at
Lugonia Avenue/Research Park
Drive (West Parcel 4) . x
8) Install traffic signals at
Lugonia Avenue/Bryn Mawr. x
9) Install traffic signals at
Lugonia Avenue/South Parcel 4
Road. x
10) Install traffic signals at San
Bernardino Avenue/Mountain View
Avenue. x x x
R. COMMY -WITH THE PROVISIONS OF
SECTION G.4 OF PROJECT
MITIGATION MONITORING PROGRAM x x x x
Map of Project is attached hereto as Page 11.
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91-4032-,!
D. The DA provides that engineering benefit zone studies
(collectively, the "EBZ Study") will be done by City at Developer' s
cost to determine which of the Improvements benefit property in
addition to Developer' s Property (the "Benefitting Properties") .
City agrees to reimburse Developer for the pro rata share of the
costs of those Improvements that also benefit other properties (the
"Reimbursable Facilities" ) . The amount of the reimbursement will
be determined by the EBZ Study and will be made from funds
collected by City from the owners or developers of the Benefitting
Properties.
E. Developer is willing to advance the costs of designing,
constructing, installing and inspecting the Facilities subject to
reimbursement from the Benefitting Properties.
TERMS
A. Design and Construction of Improvements. Pursuant to the
provisions of the DA, including the timing set forth therein,
Developer shall be responsible for designing, constructing,
installing and providing for the inspection of the Improvements.
The plans and specifications for the work shall be approved by City
prior to construction, and the design, construction and
installation of the Improvements shall be to the satisfaction of
City in its sole and reasonably exercised discretion.
B. Source and Method of Reimbursement• Maximum
Reimbursement.
1. City shall reimburse Developer for the costs,
(EXHIBIT "C-111)
11R/B362J04RIRei rs.Agm 2
z 4
including an amount attributable to interest, computed at the then
existing Bank of America' s Reference Rate upon the outstanding
costs incurred, associated with the design, construction,
installation and inspection of the Facilities, in an amount
determined by the EBZ Study. (a) from then-available development
impact fees collected pursuant to the Code from subsequent
developers of Benefitting Properties; (b) from the proceeds of any
community facilities district or assessment district formed, in
part, to pay the same; or (c) from other fees that City may impose
upon any developers of the Benefitting Properties (the
"Reimbursement Funds") . City shall exercise its police power to
the maximum lawful extent to collect fees for the pro rata share of
the costs for the Reimbursable Improvements as determined by the
EBZ Study, including enactment of new ordinances if necessary.
Reimbursement shall be from the Reimbursement Funds and from no
other source.
2 . The total amount of the reimbursement obligation
over the life of this Agreement shall be as determined in the EBZ
Study.
3 . City shall disburse reimbursements due to Developer
under this Agreement semi-annually from the Reimbursement Funds
collected from developers of Benefitting Properties as provided in
this Agreement less an administrative fee of t. The first
reimbursement shall occur no sooner than 6 months following City' s
formal acceptance of the Improvements.
C. Term of Reimbursement obligation. City's obligation,
(EXHIBIT "C-1"}
1/R/6362/04R/Reimburs.Agm 3
x
under this Agreement, to reimburse Developer for the Facilities
shall continue for a period of thirty { fl} years from the date of
the DA, unless the obligation is sooner satisfied by payment in
full of all reimbursable amounts due and owing to Developer under
this Agreement. After such thirty-year period or payment in full,
whichever occurs first, the reimbursement process shall cease.
D. Bids and Contracts. Developer shall be solely
responsible for securing appropriate bids and awarding the contract
for construction and installation of the Improvements in compliance
with: all applicable federal and state laws. Developer shall
defend, indemnify and: hold City, its elected officials, officers,
agents and employees free and harmless from any and all claims,
actions or liability whatsoever, including attorney's fees and
court costs, arising out of or in connection with Developer' s
construction of the Improvements.
E. Inspection. City shall have the right at all timer to
inspect the construction of the Improvements to measure compliance
with City plans and specifications.
F. Indemnification; Insurance.
1.. Developer shall defend:, indemnify and hold City, its
elected officials, officers, employees and agents free and harmless
from any and all liability from Loss, damage, or injury to or death
of persons or property in any manner arising out of or incident. to
Developer's performance of this Agreement, including without
limitation all consequential damages, attorney's fees and court
costs, resulting from the negligence of Developer or Developer' s
(EXHIBIT "C-1")
11R18361048/Rei rs.A9n 4
4 ,
agents . This indemnity shall extend to any claims arising because
Developer has failed to properly secure any necessary easements,
land rights, contracts, or approvals, but shall not extend to any
claims arising out of the negligence of City.
2 . Developer shall require all persons doing work on
the Improvements, including their contractors and subcontractors,
to obtain and maintain insurance of the types and in the amounts
described below in a form and with carriers satisfactory to City.
a. Commercial General Liability Insurance.
Occurrence version commercial general liability insurance or
equivalent form with a limit of not less than $1, 000, 000.00 each
occurrence shall be maintained. If such insurance contains a
general aggregate limit, it shall apply separately to this
Agreement or be no less than two times the occurrence limit. Such
insurance shall:
i. Name City, its elected officials,
officers, employees and agents as insureds with respect to
performance of this Agreement. The coverage shall contain no
special limitations on the scope of its protection afforded to the
above-listed insureds.
ii. Be primary with respect to any insurance
or self insurance programs covering City, its elected officials,
officers, employees and agents .
iii. Contain standard separation of insureds
provisions.
(EXHIBIT "C-111)
11RIB362/04R1Reimburs.Agm 5
r
T"_!()a
b. Business Automobile Liability Insurance.
Business automobile liability insurance or equivalent form with a
limit of not less than $500, 000.00 each accident shall be
maintained. Such insurance shall include coverage for owned, hired
and non-owned automobiles.
C. Workers' Compensation Insurance. Workers'
compensation insurance with statutory limits and employers'
liability insurance with limits of not less than $1, 000, 000.00 each
accident shall be maintained.
d. Other Insurance Requirements. Developer shall :
i. Prior to taking any actions under this
Agreement, furnish City with properly executed certificates of
insurance which shall clearly evidence all insurance required in
this Section and provide that such insurance shall not be canceled,
allowed to expire or be materially reduced in coverage except on
forty-five (45) days' prior written notice to City.
ii . Provide to City certified copies of
endorsements, and policies if requested by City, and properly
executed certificates of insurance evidencing the insurance
required herein.
iii. Replace or require the replacement of
certificates, policies and endorsements for any insurance required
herein expiring prior to completion and acceptance of the
Improvements.
iv. Require to be maintained all insurance
required herein from the time of execution of this Agreement until
(EXHIBIT "C-1")
1IR/B362/04R/Reimburs.Agm 6
the acceptance of the Improvements.
V. Require the placement of all insurance
required herein with insurers licensed to do business in
California.
C. Commencement of Contruction and Inspection. Developer
and its contractors and subcontractors shall not commence
construction of the Improvements until Developer has received
written authorization from City to proceed. All work performed on
the Improvements shall be done in substantial compliance with City-
approved plans, specifications and contract documents and in a good
and workmanlike manner. All work performed by Developer, its
contractors and subcontractors to construct the Improvements shall
be subject to inspection by City, and Developer shall require its
employees, contractors and agents to comply with all instructions
given by City during construction of the Improvements. All fees
and costs to construct the Improvements shall be borne solely by
Developer, subject to reimbursement as provided herein. Inspection
by City or its employees or agents shall not relieve Developers of
their liability, if any, for design defects or improper or
inadequate workmanship.
H. Compliance with Applicable Laws. Developer shall require
that all work performed on the Improvements is performed in a
manner which complies with all applicable federal, state, county
and local government laws, regulations and rules, including all
rules and regulations of City, as these rules and regulations may
be modified or changed from time to time.
(EXHIBIT "C-1")
1/RIB362104R/Reimburs.A9m 7
I. Prevailing Wages. Developer is aware of the requirements
of California Labor Code Sections 1770 et sea. , which would require
the payment of prevailing wage rates and the performance of other
requirements if it were determined that Developer' s contracts with
its contractor(s) to construct the Improvements were a public works
contract as defined in Sections 1720 and 1720 .2 of the California
Labor Code. The parties hereto agree, however, that: {i) to the
maximum extent permitted by law, Developer' s contracts with its
subcontractors shall not be deemed "public works contracts" as
defined in the California Labor Code; and (ii) none of the parties
hereto shall take a position inconsistent with the foregoing
treatment of Developer's contracts. Developer agrees to hold City
and its elected officials, officers, employees and agents harmless
from any claim or liability including, without limitation,
attorneys' fees and court costs, arising from any failure or
alleged failure to comply with these provisions of the California
Labor Code.
J. Contractor Licenses. All work performed on the
Improvements shall be done only by contractors licensed in the
State of California and qualified to perform the type of work
required.
K. Acceptance of Work. Upon completion of the Improvements
to the satisfaction of City, the Improvements shall be presented to
the Redlands City Council for dedication and acceptance, and for
authorization to file a Notice of Completion. The City Council may
accept the Improvements if it determines that the Improvements were
(EXHIBIT "C-1")
11RJ6362/04RIReimburs.Agro 8
91-4603?4-011-
constructed in accordance with the approved plans, specifications
and contract documents, that they operate satisfactorily, and that
all other requirements of this Agreement have been satisfied. Upon
acceptance of the improvements, Developer shall assign to City all
of Developer' s rights and remedies, including warranties, as set
forth in the approved contract documents, and thereafter City shall
have the same recourse under said contract documents that City
would have had if City itself had engaged Developer' s contractor to
construct the Improvements.
L. Liability for Work Prior to Formal Acceptance. Until the
City Council has formally accepted the Improvements, Developer
shall be solely responsible for all damage to the work caused by or
arising out of Developer' s or its contractor' s or subcontractor' s
negligence and for all damages or injuries to any person or
property at the work site caused by or arising out of Developer' s
or its contractor' s or subcontractor' s negligence, except damage or
injury due to the negligence of City, its agents or employees.
M. Guarantee. Developer shall require its contractor(s) to
provide one or more bonds, in form and content acceptable to City,
to guarantee all work and materials for the Improvements to be free
from all defects due to faulty materials or workmanship for a
period of one (I) year after the date of formal acceptance of the
work by City.
N. Record Drawings. Prior to acceptance of the Improvements
by the City Council, Developer shall provide City with three (3)
copies of record drawings with certification by a licensed engineer
(EXHIBIT "C-1")
1/RJ8362l04R/Reimburs.Agm 9
Zj
in the State of California as to accuracy and completeness.
Developer' s contractor (s) shall be solely responsible and liable
for insuring the completeness and accuracy of the record drawings.
O. Ownership of the Improvements. From and after acceptance
of the Improvements by formal action of the City Council, ownership
of the Improvements shall be vested exclusively in City.
F. Approval of Improvement Costs. Upon completion and final
acceptance of the Improvements by formal action of the City
Council, Developer shall, within thirty (34) days, provide City
with an itemized bill showing all reasonable costs, including an
amount attributable to interest at the Bank of America's Reference
Rate, incurred by Developer to design, construct and install the
Improvements. Such reasonable costs shall be limited to costs of
acquiring necessary land and easements not currently owned by
Developer, permit fees, and costs directly and necessarily related
to the design, construction and installation of the Improvements.
Developer agrees to provide City with bills evidencing costs
incurred. Developer also agrees to provide City with any
additional information as to any items shown on the cost bill as
requested by City to substantiate the costs. Following completion
of its analysis, City shall advise Developer, in writing, of any
fees or costs shown on the cost bill which City will disallow and
the reasons why these items are being disallowed by City. Only
those costs approved by City, in its reasonably exercised
discretion, will be allowed for reimbursement in accordance with
this Agreement.
(EXHIBIT "C-111)
1tR1g362J04R/Reifftburs.Agm 10
2
Q. Notice. Any notices required or desired to be sent
pursuant to this Agreement shall be addressed as follows:
City Developer
City Manager [Barton Development Company and
City of Redlands The Glorious Redland Investment
30 Cajon Street Partnership
P.O. Box 3005 c/o Barton Development Company
Redlands, CA 92373 10535 Foothill Boulevard, Suite 350
Rancho Cucamonga, California 91730
OR
Kaiser Foundation Hospitals
393 East Walnut Street
Pasadena, California 91188
Attn: Property Acquisition Dept. ]
R. Amendment. This Reimbursement Agreement may be amended
by the parties hereto. Such amendment or amendments shall not
require an amendment to the DA.
S . Attorney' s Fees . In the event any action is commenced to
enforce or interpret any term or condition of this Agreement, in
addition to costs and any other relief, the prevailing party shall
be entitled to reasonable attorney' s fees.
T. Entire Agreement. This Agreement contains the entire
agreement of the parties hereto with respect to the matters
contained herein.
U. Assignment . This Agreement shall not be assigned without
the written consent of the parties hereto, and any assignment
without such written consent shall be void and ineffective.
V. Time of Essence. Time is of the essence of this
Agreement.
(EXHIBIT 11C-1")
1/R/B362/04R/Reimburs_Agm 1
City of Redlands [Barton Development Company,
a California corporation
By: Mayor
By:
James E. Barton
ATTEST: Its: President
The Glorious Redland Investment
Partnership, a California
City Clerk limited partnership
By:
Cheng Hui Hou
Its: General Partner
OR
Kaiser Foundation Hospitals
a California non-profit public
benefit corporation
By:
Hugh A. Jones
Its: Senior Nice President
And:
Sandra H. Cox
Its : Assistant Secretary
and Regional Counsel]
(EXHIBIT "C-111)
1JR/B362104R(Reimburs.Agm 12
46
A. NOTES TQ EXHIBIT "C"
1 . For certain public improvements or facilities (described in
this exhibit or in the Project' s Mitigation Monitoring
Program, which is hereby incorporated herein by this
reference) a reimbursement agreement shall be executed by the
City and the Developer when: (a) a Benefit Zone Study
prepared pursuant to Section G of the Project' s Mitigation
Monitoring Program shows that property in addition to the
Property is benefitted by the improvements or facilities; or
(b) Developer is entitled to reimbursement pursuant to City
ordinances, resolutions and policies, e.g. , reimbursement for
certain water, sewer and storm facilities. Such Agreements
(which will be substantially identical to Exhibit "C-1 "
attached hereto and incorporated herein by this reference)
will provide for Developer' s reimbursement from impact fees
imposed by City on other benefitted properties as they are
developed and will be for a term of thirty ( 30) years.
2 . Developer is responsible for those infrastructure items where
there is an "X" in the columns designated with Developer' s
name and no "X" in the Regional Infrastructure column. The
costs of such items will be paid by Developer and shall be
subject to a reimbursement agreement with the City as provided
in Section G of the Project' s Mitigation Monitoring Program.
Where there are 2 or more "X' s" on any line item, the costs of
the improvements or facilities will be allocated among each
Developer on such reasonable basis as they may agree.
3 . Where there is an "XY' in Developer' s column and in the
"Regional Infrastructure" column, the item is anticipated to
be constructed through a community facilities district,
assessment district, or other public financing mechanism in
which Developer will participate. If no such district or
mechanism is formed, Developer will be responsible only for
Developer's "fair share" of the cost of such items.
4 . The cost of any improvements identified in the City's Master
Street Improvement Plan constructed by Developer, or any
assessments or CFD taxes to be paid therefor by Developer,
will offset applicable City fees, dollar for dollar, pursuant
to the City' s Traffic Impact Fee Ordinance.
5 . The master plan storm drain is designated as a regional
infrastructure improvement and its cost will be offset against
the City's drainage acreage fees in the same manner as
provided in paragraph 4 above.
Notes to Exhibit "C" (Page 1 of 5)
701R1B09731002JNTESTO.EXC
6. Medians in California Street between San Bernardino Avenue and
I-10 will not be required unless the full improvements are
constructed.
7 . The condition to obtain right-of-way as necessary to provide
traffic improvements adjacent to property that is not owned by
either Barton, Kaiser or Glorious Redland Investment
Partnership will require the City to condemn the property if
necessary. The costs of such condemnation proceedings will be
allocated among Barton, Kaiser, or Glorious Redland on an
equitable basis,
8. of the interior streets, Kaiser is only responsible for half
width improvements of "B" Street, Almond, and "D" Street from
Almond to "B" Street.
9 . The general construction requirements apply to the property
frontage only. Whoever develops first will be responsible for
the cost of street lights on their interior street frontage.
Because it benefits the property across the street,
reimbursement agreement will be executed for this expense.
10 . Developer will construct two (2) water lines in all the
streets, one for domestic water and one for irrigation water.
Potable water will be used for both domestic service and fire
protection because there is insufficient capacity for fire
protection from the non-potable system.
11 . Kaiser' s responsibility for water and sewer mains in Lugonia
will be from "B" Street to California Avenue. The Water
Source Acquisition charge, Water Capital Improvement charge,
and Sewer Capital Improvement charge are all payable at the
time the building permit is issued. The owner may furnish
water use records to determine the amount of the fee.
B. ADDITIONAL CONDITIONS
1 . Developer shall pay to City Two Hundred Thousand Dollars
($200,000.00) to be used for the Redlands Senior Citizens
Nutritional Center, or if such Center is not established for
any other purpose which the City may then determine. This
payment is due and payable on or before January 31 , 1992,
unless a referendum petition is filed with the City regarding
the ordinance approving this Agreement or the Concept Plan in
either of which case this payment will not become due and
payable unless and until this Agreement becomes fully
operative and effective and no longer subject to legal
challenge.
Notes to Exhibit "C" (Page 2 of 5)
7011 1 BC973}t1021NTESTO.EXG
2 . Developer agrees that the Community Facilities District to be
formed pursuant to Section 11 . 5 of this Agreement shall
include among the public facilities to be funded in addition
to those referred to in Exhibit "C" a fire station and
associated equipment including one fire truck for a total cost
not to exceed Two Million Dollars ($2, 000, 000.00) and
additional facilities or services (including but not limited
to funding for regional open space and trails development not
located on the Barton Center Redlands property) to be
determined by City for a cost not to exceed Six Hundred
Thousand Dollars ($600, 000. 00) .
3 . There are presently existing on the Barton Center Redlands
property two (2) existing water wells (the "Existing Wells" )
one of which is located on the Property (the "Barton Well")
which wells are currently used to provide irrigation water for
agricultural purposes. Developer will convey to the City the
Barton Well as well as sufficient property (the "Well Site")
surrounding the same to permit the installation, maintenance
and operation of the pumping facilities necessary to provide
Developer with water for the uses hereinafter specified. The
City shall pay Developer, concurrently with the conveyance to
it of the Barton Well and the Well Site, the fair market value
of the same.
The fair market value of the Barton Well and the Well Site
shall be determined by agreement between City and Developer
or, in the absence of such agreement, by arbitration using
Judicial Arbitration and Mediation Services, Inc. The fair
market value of the Barton Well shall be based on the
replacement cost of the same and will take into account the
following criteria: age, casing diameter, depth, capacity,
construction (materials and drilling method) , condition of
pumping equipment and eighty (80) year straight line
depreciation. The fair market value of the Well Site shall be
based on the highest and best use of the property upon which
the same will be located.
Except as provided hereinabove with respect to the conveyance
to the City of the Barton Well and the Well Site, Developer
shall retain all water and water rights now existing with
respect to the Property.
The City shall provide Developer with water for the following
uses: (a) for agricultural uses now or hereafter existing on
the Property; (b) for filling and maintaining the appropriate
level of a lake or lakes which Developer intends to construct
on a portion of the Property; and (c) for irrigation of all
landscaping hereafter placed on the Property. The obligation
of the City to provide Developer with water as provided herein
is not contingent upon the ability of the City to obtain the
Notes to Exhibit "C" (Page 3 of 5)
ICkR�BO973�004XTESTO.EXC
At
.,
same from the Existing Wells, it being understood that, in the
event the City is unable to obtain water from the Existing
Wells in sufficient quantities to discharge its obligations
hereunder, the City shall obtain such water from such
alternative source or sources as may then be available to it
and deliver the same to the Property for use by Developer as
provided herein. City' s obligation to provide water from
alternative sources at the rates specified herein shall be
limited to the capacity of the Existing Wells. Any water
delivered to Developer exceeding the capacity of the Existing
Wells shall be at the City' s then existing rates and pursuant
to then existing limits in generally applicable water service
rules and regulations for domestic and non-potable water, as
applicable.
The City shall, to the extent possible, utilize the Existing
Wells to provide the water to be supplied by it as provided
herein and, in connection therewith, shall design and
construct on the well site or sites all pumping facilities
necessary to provide the capacity and pressure to do so.
Water provided hereunder by the City for agricultural uses and
for the lake or lakes to be constructed on the Property shall
be provided at an annual rate which does not exceed the actual
annual cost incurred by the City in the operation and
maintenance of the Existing Wells or only to the second well
if one well is abandoned (the "Production Cost") . The
Production Cost shall be determined annually on a fiscal year
basis (i .e. July 1 - June 30) and City shall, upon request of
Developer, provide Developer with its calculations
establishing the same.
Water provided hereunder by the City for irrigation of
landscaping shall be provided at an annual rate which does not
exceed Production Cost plus one thirtieth ( 1 /30th) of the
City's Capital Recovery Cost (which term as used herein shall
mean the actual cost incurred by the City in constructing
pumping facilities installed on the well site or sites to the
extent that such facilities are necessary to provide the water
required by the Developer, it being understood that, to the
extent such facilities are sized to permit City to provide
water to places other than the Property, the cost of such
oversizing shall be borne by the City and not the Developer) .
The City's Water Source Acquisition Charges and Water Capital
Improvement Charges shall not apply to the water provided
hereunder.
The annual rate for the water provided hereunder to Developer
shall be the same for Developer and the other users on the
Notes to Exhibit "C" (Page 4 of 5)
I O1RlBO9131002JMTESTO.EXC
91
Barton Center Redlands property and shall not be greater than
the rate charged by the City for its potable water.
Except for service of water for agricultural uses on the
Property, nothing herein shall be construed to require City to
provide Developer with water in quantities or of quality
different than that generally available to City users under
then existing City water service rules and regulations.
4 . Corner monumentation and landscaping will be provided by
Developer prior to the completion of Phase I of the Project in
order to unify the Project and show it is ready for
development.
Notes to Exhibit "C" (Page 5 of 5)
70�R k 8Q973kOO2kNTESTQ.EXC
e ti
Z ���
REIMBURSEMENT AGREEMENT FOR CONSTRUCTION
OF PUBLIC IMPROVEMENTS
This agreement ( "Agreement") is made this day of
, 1991 by and between the City of Redlands, a
municipal corporation (the "City") , and [Barton Development
Company, a California corporation, and The Glorious Redland
Partnership, a California limited partnership OR Kaiser Foundation
Hospitals, a California non-profit public benefit corporation]
(hereinafter referred to as "Developer") .
RECITALS
A. Developer owns approximately acres of real property
located within the City (the "Developer' s Property") , more
particularly described on Exhibit "A" attached hereto and
incorporated herein by reference.
B. City has adopted the Redlands Municipal Code (the "Code")
establishing various development impact fees to offset the cost of
development of City infrastructure.
C. As a condition to the approval of a development agreement
between Developer and the City (the "DA") , City has required
Developers to design, construct and install certain public
facilities to serve Developer' s Property and other properties (the
"Improvements") . The Improvements are identified in Exhibit "C" of
DA, including the Mitigation Monitoring Program incorporated
therein.
(EXHIBIT "C-1")
1JRIB362104R(Reimburs.A9m 1