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HomeMy WebLinkAboutOrdinances_2122_CCv0001.pdf Recording requested by arra when recorded return to: City Clerk' s Office City of Redlands, P. 0. Brix 3005 Redlands, CA 92373 ORDINANCE NO. 2122 N ORDINANCE OF THE CITYCOUNCIL OF THE CITYOF REDLANDS APPROVING A DEVELOPMENT AGREEMENT WITH THE CITYCOUNCIL OF THE CITY OF REDLANDS DOES ORDAIN FOLLOWS: SECTION ONE: FINDINGS. The City Council hereby finds: M Oil July , 1990after publication, posting an ailirg of notices here ars required aw, the Planning mi s on of the City of Redlands conducted a public hearing On a PrOPOSOd Developrent Agreementfor approximately acres of land located on the; north side of Redlands Boulevard, between California Streetarra New Jersey Street, owner binCatlin/Berger Development, Inc. (t "Property Owner" ) , arra recommended to the Citi Council approval an adoption thereof; QiOn July 17 , 1990,, ub . .o .on, posting an mailinS of notices thereof as required by law, e City Council oar duc ed a public hearing on the proposed Develop- ment Agreement, and received testirony and information from any and all parties (iii) The proposed Development Agreement: is corsistent with theCity ' s General Plea wand all. applicable specific airs ti The proposed DevelopmentAgreement ontai ,s titters required by California Coverrvent Cade Section 65865.2 and the City' s procedures and requirements for the consideration of development agreements; The approval of and the City' s entering into the proposed Development Agreement .i in furtherance of the purposes of theaorn a Covernment Coda in that such Agreement will promote the orderly development of such prop- erty, private part cipa o in comprehensive lann in arra reduxce the economic costs of development; n The proposed Development Agreerentsupported b adequate considera o om the Property Owner in that the Property Owner; among other things has agreed o pay certain fair share impact fes to offset e impact of the Property Owner' s project on the City, which consideration is in excess of what the Property" Owner would cb he o K_ Iry be required to provide to the City in connection with the entitlements SECTION TWO. APPROVAL. The Development Agreement, a copy of which is attached hereto as Attachment "'A, " is approved and the Mayor and City Clerk are authorized to execute and deliver the Development Agreement on behalf of the City. SECTION THREE. RECORDING. Pursuant to California Government Code Section 65868.5, the City Clerk shall record with the County Recorder of the County of San Bernardino a copy of the Development Agreement describing the land subject thereto within ten (10) days after the Agreement is executed Cin behalf of the City and Property Owner. SECTION FOUR. EFFECTIVE DATE. This ordinance shall be in force and take effect as provided by law. SECTION FIVE. The City Clerk shall certify to the adoption of this ordinance and cause it, or a summary of it, to be published once in the Redlands Daily Facts, a newspaper of general circulation printed and published in this City. ATTEST: Mayor.,,,"o o,.,Xedlands Clerk I , Lorrie Poyzer , City Clerk , City of Redlands, hereby certify that the foregoing ordinance was duly adopted by the City Council at a special meeting thereof held on the 15tb day of August, 1990, by the following vote: AYES: Councilmembers Beswick, Cunningham, Larson; Mayor DeMirjyn INOES: None ABSENT: Councilutember Milson ABSTAIN- None CI ty Clerk 90* RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: CITY CLERK' S OFFICE RECORDED IN City of Redlands OFFICIAL RECOW)11 Redlands, CA92373' P11 S YS 3 ��� � �,a, SAN BERNARDINO CO., CALIF. DTA . . DEVELOPMENT AGREEMENT ENTERED INTO BETWEEN THE CITY OF REDLANDS L GATLIN/BERGER DEVELOPMENTS, INC. EFFECTIVE .§tptamber 1990 DEVELOPMENT AGREEMENT TABLE OF CONTENTS' ---------------------------------------------------------------- ---------------------------------------------------------------- RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . OPERATIVE PROVISIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1.:. Term . . . . . ... . . . . . . . . . . . . . . . ... . . .-.. . . ....:. . . ....... . . .... ... . Restrictions on Development and Use . . . . . . . . . . . . . 3 . Development and Use . . . . . . . . . . . . . . . . . . . . . . 4 4. Development Fees . . . . . . . . . . . . . . . . . . . . . . . .-. . . .._. .-. 5. Public Improvements . . . . . . . . . . .;. . . . . . . . . . . . . . . . Third Party Permits and provals and Utilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7 7 . Development Schedule . . . . . . . . . . ... . . . . . . . . . . . . . 7 8. DEVELOPER Coo Mance and Release 9 . Default by DEVELOPER- . . . . . . . . . . . . . . . . . . 10 . Default by CITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ... . . 11 . Permitted DftiAyls . . .:. . . .... . ♦ . . . . . .. . . . . .. . . ... . . . ...... . . 12. indemnification . . . . . . . . . . . . . . . . .. . . . . . . . . . . . . . . . 1 13 . Su2erseding State or Federal Law . . . . . . . . . . . . . 11 14 . Successors and Assigns . . . . . . . . . . . . . . . ... . . . . . . . 1 15. Eguitabl.e Servitude . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 16 . Negation of Agencyt Joint `denture or Partners . . . . . . . . . . . . . . . . . . . . . . . . . 12 17 . Notices and Other Communications . . . . . . . . .=. . . . . . . 1 TABLE OF CONTENTS, cont'<d. ---------------------------------------------------------------- ---------------------------------------------------------------- a 8 Estoppel Certificates . . . . . . . . . . . . . . . . . . . . . . . . . 14< 19 . A22licable Law . . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . 14 20. Venue :.... . . .... . . ... . . ♦ . . -. . . W. a . . . . . . ..... . . . • . . ..... .....:♦..,. ..:t. 1 21 . Attorneys ' Fees . . . . . . . . 14 22 Para ra h Headin2s . . . . . . . . . . . . . . ,. . . . . . . . . . . . . . . . 14 23. Construction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 24 . Survival . . . . . . . . . . . . . . . . . . . . . 1 ' 25 . Calendar Periods . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 26 . Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 . Further Assurances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 28 Covenant of Good Faith . . . . . . . . . . . . . . . . . . . . . . . . . 15 29 . Counter arts . . . . . . . . . . . . . . . . 4 . . . . . ., . . . . . . . . .,. 18 0 . Incorporation of Recitals . . . . . . . . . . . . . . . . . . . . . . . 1 1 . Exhibits . . . . . . . .. . . . . . . . . . . . . . . . . . . . . . . . . . . .-. . . 1 32. Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 33 ...: Recordation . . . . .. . . . . . . . . . . . .... . . . i.. . . .. . . . . . . . ..:. . . +. SIGNATURES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 & 18 NOTARIALACKNOWLEDGMENTS . . . . . . . .. . . . .:_. . . . . . . . . . . . .-. . . . . 18 & 1 EXHIBIT "A" - Development Fees DEVELOPMENT AGREEMENT This Development Agreement ("Agreement") is entered into effective & 1990 , between the CITY OF DLANDS, .ptember— 14 , a municipal corporation, ("CITY") and GATLIN/BERGER DEVELOPMENT;, INC . , a Louisiana corporation ("DEVELOPER" ) . Recitals A. Section 65864 through Section 65869 .5 of the Cali- fornia Government Code ("Government Code" ) and Section 18 .220 .010 through Section 18 .220 . 310 of the Municipal Code of the CITY ("Muni- cipal Code") authorize the CITY to enter into binding development agreements for the development of real property in its municipal limits , with persons who have legal or equitable interests in such real property. B. The DEVELOPER has a contractual right to purchase approximately 26 . 78 acres of real property in the municipal lim- its of the CITY, which is more particularly described as Parcels I and 2 of Parcel Map No. 6611 , in the City of Redlands, County of San Bernardino, as per plat recorded in Book 81 of Parcel Maps, pages 79 and 80 , Records of the County of San Bernardino (the "Property") . C. The DEVELOPER intends to purchase a fee interest in and develop the Property as a quality open air shopping center which will contain stores, shops and restaurants, including a Wal-Mart department store ("Shopping Center") . The DEVELOPER has applied to the Planning Commission of the CITY ("Planning Commis- sion") , for a conditional use permit, as provided in Chapter 18 . 192 of the Municipal Code and for a variance, as provided in Chapter 18 . 196 of the Municipal Code, and on May 15 , 1990 , the Planning Commission approved Conditional Use Permit No. 542 ( "Con- ditional Use Permit No. 542") and Variance No. 460 ("Variance No. 460") and imposed conditions on the DEVELOPER, including condi- tions which are intended to mitigate the environmental impact of the Shopping Center. On July 10 , 1990 , the Planning Commission approved Amended Conditional Use Permit No. 542 (Revised) , and Minor Subdivision No. 199 and imposed additional conditions on the DEVELOPER with respect to the DEVELOPER' s Shopping Center project. The conditions of approval include a condition assuring compliance with mitigation measures as recommended by the En- vironmental Review Committee on May 7 , 1990 , and approved by the Planning Commission on May 15 , 1990 , pursuant to a mitigated negative declaration. D. The DEVELOPER has appl.ied< to the CITY for approval of this Agreement and the Planning Commission and the City Coun- cil have conducted public hearings with respect to this Agree- ment, as provided in Section 65867 of the Government Code and in Section 18 .220 . 080 and Section 18 .220 . 110 of the Municipal Code, and have found that the provisions of this Agreement are consis- tent with the CITY' s General Plan ("General Plan") and the East valley Corridor Specific Plan ("Specific Plan") . On August 15 1990, the City Council adopted ordinance No. 2122 which en- acted this Agreement ("Enacting Ordinance") and the Enacting Ordi- nance became effective on Pt 14, 1990 ("Effective Date") . E. By adopting the Enacting ordinance, the City Coun- cil has determined that the lack of certainty in the approval of the DEVELOPER' s Shopping Center project could result in a waste of resources and discourage investment and commitment to compre- hensive planning which would maximize efficient utilization of re- sources at the least economic cost to the public and has deter- mined that certain assurances should be given to the DEVELOPER so 2 that the DEVELOPER may proceed with its Shopping Center project in accordance with certain existing policies , rules and regula- tions and subject to the terms and conditions of this Agreement. This Agreement has undergone extensive review by the CITY, the Planning Commission and the City Council and has been found to be 'Lair, just and reasonable and in the best interest of the citi- zens of the CITY and the public health, safety and welfare. IN CONSIDERATION of the mutual covenants and conditions which are provided in this Agreement, the parties agree as fol- lows : Operative Provisions I . Term. Unless earlier terminated as provided in this Agreement, this Agreement will commence on the Effective Date as provided in "Recital D. " and will continue until the 4th anniversary of the Effective Date. 2. Restrictions on _Develo2ment and Use. The develop- ment and use of the Property including, without limitation, the density or intensity of use, the maximum height and size of pro- posed buildings and provisions for reservation or dedication of land for public purposes, will be governed by the following: (a) The "Urban Services Land Use Designation" of the Land Use Element of the General Plan, as it exists on the Effective Date of this Agreement. (b) Division 3 , Chapter 7 (General Commercial District) of the Specific Plan, as they exist on the Effective Date of this Agreement. (c) Conditional Use Permit No. 542. 3 (d) variance No. 460 . (e) Conditional Use Permit No. 542 (Revised)_. (f) Minter Subdivision No. 199 . (g) Except with respect to Development Fees, as provided in paragraph 4 . , and public improvements , as provided in paragraph 5 . , the CITEY' s ordinances, resolutions rules, regula- tions e nal -tions and policies with respect to subdivision, resubdivision, adjustment of lot lines and: construction standards and specifica- tions ecif .cations including, without limitation, building codes, plumbing cedes, mechanical codes , electricalcodesand fire cordes, as they exist from time to time, provided that such ordinances, resolu- tions, soltions, rules, regulations and policies are applied on a city-wide basis. Except with respect to Development Fees and public im- provements, m-p ovements, the intent of this subparagraph . (g) is to give the CITE" discretion with respect to the approval of those aspects of the development or operation of the ;hopping Center which it has not yet been asked to review as of the Effective Date: of this Agreement. All of the foregoing will sometimes hereafter be referred to collectively as the "Development `Cr.iteri. " . 3 . Development and Use. (a) The DEVELOPER will have the vested right to develop the Property .in accordance with the Development Criteria and this Agreement. (bOn the request of the DEVELOPER from time to time, the CITE' will accept applications for, diligently process and issue, in accordance with the ,Development Criteria, all re- maining land use approvals and permits, building permits, cer- tificates of occupancy and other permits which are necessary for 4 the development or operation of the Shopping Center, (i) on pay- ment of the CITY' s usual and customary fees and charges, to cover its actual costs of processing any such applications and issuing any such approvals, permits and certificates ("Processing Fees and Charges") at the time that such Processing fees and Charges are normally payable as provided in the Municipal Code, and 'ii on payment of the Development .Fees which are referred to in para- graph 4 .,, 1/2 on the date that the CITY issues a certificate of occupancy for the 'Wal-dart department store ,in the Shopping Cen- ter ("Gal-Mart Store" ) , and 1/2 on the second anniversary of the Ist day of the 1st quarter after the quarter in which the Wal- Mart Store opens for business. 4 . Dev lopment Fees. The total development fees which will apply to the development of the Shopping Center in- cluding, without limitation, any subdivision, resubdivision, ad- justment of lot lines , grading, construction, installation or in- ception of utility services, completion or occupancy of the Shop- ping Center ("Development Fees") , will be as provided in the sche- dule attached hereto as EXHIBIT "A" and, except for the Develop- ment .Fees and the Processing Fees and Charges which are referred to in subparagraph, . (b) , the CITE' will not impose or exact any additional fees, with respect to the Property or the Shopping Center;. 5. Public I rov eats The CITY will construct all public improvements which it requires with respect to the Shop- ping Center, All of the improvements will be constructed to the CITY's standards and the determination of whether a specific im- provement meets CITE' standards will be within the CITY's sole dis- cretion. The CITY and the DEVELOPER agree that such public im- provements provem nts will include, at a minimum, the following: 5 ----------- With res2ect to California Street: Construct a 63 foot half street easterly of street centerline, to include: W Construct standard curb and gutter 57 feet easterly of street centerline. (ii) Construct standard street section between new curb and street centerline. (iii) Construct standard sidewalk. (iv) Install standard street lights . (v) Construct adequate drainage fa- cilities. With res2ect to Redlands Boulevard: Construct a 60 foot half street northerly of street centerline, to include: (i) Repair existing curb, gutter and street pavement as necessary. (ii) Construct standard sidewalk (in accordance with East Valley Corridor Specific Plan) . (iii) Install standard street lights . (iv) Construct adequate drainage fa- cilities . With respect to New Jersey Street: Construct a 33 foot half street westerly of street centerline, to include: (i) Construct standard curb and gutter 24 feet westerly of street centerline. (ii) Construct standard street section between new curb and street centerline. (iii) Construct standard sidewalk. (iv) Install standard street lights. With resRect to intersection of Redlands Boulevard and California Street: (i) Construct interim traffic signal. 6 The CITY will use its best efforts to construct such public improvements on or before the date that the Wal-Mart Store opens for business . The DEVELOPER acknowledges and agrees that prior to undertaking construction of the above-described traffic sig- nal, the CITY may be required to obtain certain permits or ap- provals from the City of Loma Linda, The CITY will use its best efforts to obtain such permits and approvals and obtain the neces- sary materials to construct such traffic signal. While the CITY makes no commitment that such traffic signal will be constructed by any date certain, the CITY will use its best efforts to con- struct such traffic signal on or before the date that the Wal- Mart Store opens for business . The CITY will also exercise good faith in deter- mining the placement of median access cuts in any median in Cali- 4: fornix Street and Redlands Boulevard in relationship to driveways from those streets into the Shopping Center. 6 . Third Part Permits and A2,2royals and Utilities. The CITY will use its most reasonable efforts to assist the DE- VELOPER in obtaining all other permits and approvals which are required by governmental entities other than the CITY, which have jurisdiction over the development or operation of the Shopping Center, and all utility connections and services including, with- out limitation, electrical, gas, telephone, cable television, which are required for the development or operation of the Shop- ping Center. 7. DevelopmeEtSchedule. The DEVELOPER will use its best efforts to develop the Shopping Center as provided in the Development Plan, according to the following schedule: 7 (a) No later than the 1st anniversary of the Ef- fective Date of this Agreement, the DEVELOPER will begin con- struction of the Wal-Mart Store. (b) No later than the 2nd anniversary of the Ef- fective Date of this Agreement, the DEVELOPER will complete con- struction of the Wal-Mart Store. (c) Nor later than the 4th anniversary of the Ef- fective Date of this Agreement, the DEVELOPER will complete con- struction of at least 23 ,500 square feet of additional unfinished (building shell only) retail shop space in the Shopping Center. 8 . DEVELOPER Compliance and Release. (a) The Director of Community Development of the CITY ("Director") will review this Agreement on the Ist, 2nd, 3rd and 4th anniversaries of the Effective Date of this Agreement as provided in Section 65865 .1 of the Government Code and Section 18. 220. 180 of the Municipal Code, to ascertain the DEVELOPER' s good faith compliance with the provisions of this Agreement. (b) If the Director finds good faith compliance With the provisions of this Agreement, then he will issue a cer- tificate of compliance as provided in Section 18.220. 190 of the Municipal Code and cause such certificate of compliance to be re- corded in the official Records of San Bernardino County. The certificate of compliance which the Director records in the Offi- cial Records of San Bernardino County will be recorded after he has found good faith compliance with the provisions of this Agree- ment on the 4th anniversary of the Effective Date of this Agree- ment. 9 . Default by )EVELOPER. If the Director does not find good faith compliance with the provisions of this Agreement on the 1st, 2nd, 3rd or 4th anniversaries of the Effective Date of this Agreement, then he will have all of the remedies which are provided in Section 18 .220 .230 of the Municipal Code and will proceed as provided in Section 65865 . 1 of the Government Code and Section 18 .220 .200 through Section 18 .220 . 240 of the Municipal Code. 10 . Default ,b CITY. If the CITY fails to perform any of its obligations as provided in this Agreement and fails to cure its nonperformance within 30 days after notice of nonper- formance is given by the DEVELOPER, then the CITY will be in de- fault and the DEVELOPER will have all of the remedies which are available to it at law or in equity; provided, however that if the CITY's failure to perform cannot reasonably be cured within such 30 day period, then the CITY will not be in default of this Agreement if it commences to cure its nonperformance within such 30 day period and thereafter diligently and in good faith prose- cutes such cure to completion. Without limiting the effect of the foregoing, the parties acknowledge and agree that the subject matter of this Agreement is unique and that money damages may be inadequate to compensate the DEVELOPER and therefore, at the election of the DEVELOPER, this Agreement may be specifically en- forced. 11 . Permitted Delays. The CITY and the DEVELOPER will be excused from performance of their respective obligations as provided in this Agreement during any period of delay which is caused by casualty; acts of God; civil commotion; war; insurrec- tion or riots. The affected party will promptly notify the other party of any permitted delay as soon as is possible after it has ascertained such delay and the term of this Agreement will be extended by the period of any such delay. 9 1 . Indemnification. )a) The DEVELOPER will defend, indemnify and hold the CITY and its elected officials , officers and employees free and harmless from any loss, cast or liability (including, without limitation, liability arising from injury or damage to persons or property, including wrongful death and worker ' s compensation claims) which results from (i) any obligation which arise from the development of the Shopping Center including, without limita- tion, i ita-tiara obligations for the payment of money for material and labor, (ii) any failure on the part of the DEVELOPER to take any action which it is .required to tape as provided in this Agreement, )iii) any action taken by the DEVELOPER which it is prohibited from taking as provided in this Agreement and (iv) any claim which re- sults ,from any wilful or negligent act or omission of the DEVEL- OPER. E LOPER. (b) The CITY will defend,, indemnify and held the DEVELOPER and its shareholders , directors, officers and employees free and harmless from any and all lass, cost or liability (in- cluding, ire-cluding, witho t limitation, liability arising from injury or damage to persons or property, including wrongful death and work- ergs ork-er' s compensation claims) which results from , (i) any failure on the part or the CITY to take any action which it is required to take as provided in this Agreement, (ii) any action taken by the CITY which it is prohibited from taking as provided in this Agree- ment and (iii) any claim which results from any wilful or negli- gent act or omission of the CITY. (c) Included in the scope of the foregoing indem- nifications will be: all damages: and claims for damages which are suffered or alleged to have been suffered by reason of the mat- ters which are the subject of the applicable indemnification and all of the associated legal fees and: court costs. without limit- 10 ing the effect of the foregoing, the indemnifying party will have the right to defend against any claim with respect to which it is indemnifying the other party, using legal counsel of its choice, (d) Without; limiting the effect of the DE ELOPER' s indemnification, as provided in subparagraph 12 . (a) , until the DE- VELOPER has been released from its obligations as provided in sub- paragraph 8 . (b) of this Agreement, it shall take out and maintain the following insurance coverages (i) Commercial general liability insurance with single limits of liability of not less than $1 ,000,000 .00 . (ii) Worker' s compensation insurance which complies with California law, for all persons which are employed by the DEVELOPER at the .Property. The carriers of such insurance will be re- sponsible companies which are admitted to do business in Cali- fornia. The CITE and its elected officials,, officers and em- ployees will be named as additional insureds in connection with any such insurance coverage and: each carrier of such insurance will agree to give: the CITY at least 30 days advance written no- tice of any cancellation or reduction in; coverage of any such in- surance. At the CITY ' s request from time to time , the DEVELOPER will cause the carriers of such insurance to provide evidence of the existence of such insurance coverage. 13 Superseding State or federal Law. If any state or federal law of regulation which is enacted or adopted after the Effective Date of this Agreement or any other action of any gov- ernmental entity which is not under the CITy'' s control, prevents or precludes compliance with any provision of this Agreement, then such provision of this Agreement will be modified or sus- 11 pended only to the extent and for the time it is necessary to achieve compliance with such law, regulation or other governmental action and the remaining provisions of this Agreement will con- tinue in full force and effect and the parties will negotiate in good faith for such amendments to this Agreement as may be neces- sary to achieve its intent, notwithstanding the existence of such state or federal law or regulation or other governmental action. On the repeal of any such law, regulation or other governmental action or on the occurrence of any other circumstance which re- moves the effect of the same on this Agreement, the provisions of this Agreement will be automatically restored to their full ori- ginal effect and any amendment to this Agreement which the par- ties have entered into as a result of any such law, regulation or other governmental action, will terminate. 14 . Successors and Assigns . All of the provisions of this Agreement will inure to the benefit of and will bind the parties and their respective successors and assigns and all other persons or entities which acquire all or any part of the Prop- erty. Without limiting the effect of the foregoing, the DEVEL- OPER will have the right to assign its rights or delegate its ob- ligations as provided in this Agreement, in whole or in part, to any person or entity which owns or operates the Shopping Center or any part of then e. 15. Equitable Servitudes. All of the provisions of this Agreement will be enforceable as equitable servitudes and will constitute covenants running with the land as provided in the applicable law. 16 . � aation of Agency, Joint Venture or Partnershij2. The parties acknowledge that in entering into this Agreement, they are acting as independent entities and not as agents of the other in any respect. The parties hereby renounce the existence 12 of any form of joint venture or partnership among or between them and agree that nothing in this Agreement will be construed as making them joint venturers or partners . 17 . Notices and Other Communications . All notices or other communications which are required or permitted to be given to the parties will be in writing and will be given either by per- sonal service or by mailing the same by certified or registered mail, postage prepaid, return receipt requested, or overnight mail delivery service , addressed as follows: CITY CITY OF DLANDS 30 Cajon Street Redlands, CA 92373 Attn: City Manager With a Copy To: CITY OF REDLANDS 2 Redlands Plaza P .O. Box 3005 Redlands, CA 92373 Attn: Community Development Director DEVELOPER GATLIN/BERGER DEVELOPMENTS , INC. 5650 El Camino Real Carlsbad, CA 92008 Attn: Franklin C. Gatlin,, III With a Copy To: Darryl Berger Investment Corporation 100 Conti Street New Orleans , LA 70130 Attn: Darryl D. Berger If any such notice or other communication is given by personal delivery, then it will be deemed given as of the date of delivery. if any such notice or other communication is given by mail , then it will be deemed given as of the date of receipt, rejection or return undelivered. Addresses to which no- tices or other communications may be delivered, may be changed from time to time by a notice which is given as provided in this paragraph 17 . 13 18 . Esto pelf Certificates . At the request of either party, the other party will, within 10 days, certify in writing that, to the best of its knowledge, (a) this Agreement is in full force and effect and is a binding obligation of the certifying party, (b) this Agreement has not been amended or modified, ex- cept as is expressly provided in such estoppel certificate and (c) no default in the performance of the requesting party' s ob- ligations as provided in this Agreement exists , except as is ex- pressly provided in such estoppel certificate. 19 . A2211cable Law. This Agreement will be construed and enforced as provided in California- law. 20 . Venue. Any legal action with respect to this Agreement will be brought in either San Bernardino County Su- perior Court or in the United States District Court for the Cen- tral District of California. 21 . Attorney"s�Fees . if legal action is taken to en- force or interpret any provision of this Agreement, then the pre- vailing party in such action will be entitled to recover from the losing party all attorneys' fees, court costs and necessary dis- bursements in connection with such action. 22 . ParaSfra2h_ EtAAjng.s�. The paragraph headings of this Agreement are for convenience only and are not a part of and are not intended to govern, limit or aid in the interpretation of any provision of this Agreement. 23 . Construction. in all casest the language in this Agreement will be construed simply, according to its fair meaning and not strictly for or against either party, it being agreed that the parties or their agents have participated in the prepar- ation of this Agreement. 14 24. Survival . Each and every covenant in this Agree- ment will survive the execution and delivery of this Agreement for the benefit of the parties . 25 . Calendar Periods . All references in this Agree- ment to "years" , "quarters" , "months" and "days" will be deemed to be to references to calendar years , quarters, months and days. 26 . Severability. Every provision of this Agreement is and will be construed to be a separate and independent coven- ant. Without limiting the effect of paragraph 13 . , if any provi- sion of this Agreement or the application of the same is, to any extent, found to be invalid or unenforceable, then the remainder of this Agreement or the application of such provision to circum- stances other than those to which it is invalid or unenforceable, will not be affected by the same and each provision of this Agree- ment will be valid and will be enforced to the extent permitted by the law and the parties will negotiate in good faith for such amendments to this Agreement as may be necessary to achieve its intent, notwithstanding such invalidity or unenforceability. 27. Further Assurances. Whenever and as often as it is requested to do so by the other party, each party will exe- cute, acknowledge and deliver or cause to be executed, acknow- ledged or delivered, any and all such further documents as may be necessary, expedient or proper in order to achieve the intent of this Agreement. 28 . 'Covenant of Good Faith. In exercising their rights and in performing their obligations as provided in this Agreement, the parties will cooperate with one another in good faith, so the intent of this Agreement can be attained. 15 9 . Counterparts . This Agreement may be executed in counterparts, each of which will be deemed to be an original for all purposes and all such counterparts will constitute one and the same agreement. 30 . Incorporation of Recitals. The "Recitals" in: this Agreement are material and are incorporated by reference as though fully set forth hereat. Each recital of fact concerning the par- ties will be conclusive between: them and such facts will be in- contestable in the event of any dispute between them with respect to such facts Neither party will introduce any evidence in a court or administrative proceeding which; would in any way serve to dispute any such recited.. fact.. 31-. Exhibits. Any Exhibit to this .Agreement is incor- porated by reference as though fully set forth hereat.. 32Amendment. (a) No amendment or waiver of any term of this Agreement will be binding on the CITY unless; and until it has been approved and has become effective as provided in Section 65868 of the Government Code and in Section 18 .220 .290 of the Municipal Code, or :.on the DEVELOPER unless and until it has been: executed by the DEVELOPER. (b) The parties acknowledge that the passage of time may demonstrate that changes are necessary or appropriate with respect to the details of each party' s performance as pro- vided in this Agreement. Because the parties wish to retain flexibility with respect to the details of their performance, if and when the parties determine that chances are necessary or ap- propriate, they will unless otherwise required by law, effectuate such changes or adjustments through operating memoranda.. After 16 execution, each such operating memorandum will be attached to this Agreement as an addendum and will become part of this Agree- ment. No such operating memorandum will be deemed to be an amend- ment of this Agreement as provided in Section 65868 of the Govern- ment Code or in Section 18 .220 .-.290 of the Municipal Code. 3 «- Recordation. No later than 1-0 days after the Ef- fective Late of this Agreement, the CITY will, at its cost, re- cord this Agreement in the Official Records of the San Bernardino County Recorder, as provided in Section X658 8 .5 . of the Govern- ment overn.m nt Code and in Section 18.220 .290 of the Municipal: Code.; CITY CITY t N S' . . x M'A Y ATTEST ww� By City lerk t APPROVED AS TO FORM AND SUBSTANCE: BEST, .BEST & KR,IE EF Daniel. J. Mc h, Esq DEVELOPER ATIIN/ ER ER. DEVELOPMENTS, INC. , a Louisiana corporation By: is 17 APPROVED AS TO FORM AND SUBSTANCE GRESHAM, VARNER, SAVAGE, NOLAN & TI LDEN By: Mark A. Ostoich, Esq._ STATE OF CALIFORNIA s . COUNTY OF SAN BERNARDINC3 On August 11 , 1990 , before tie, the undersigned, a Notary Public for the State of California, duly commissioned and sworn, personally appeared Charles G. D Mir n personally known to me or proved to me on the basis of satisfac- tory evidence to be the Mayor of the CITY OF REDLANDS, a munici- pal muni ipal corporation, and acknowledged to me that said municipalcor- poration executed the within instrument WITNESS my hand and official seal . Notary Pts l.ic in and for d State and County NOTARIAL SEAL VAL 8 S#NCFEZ nwtculr F�tc- t�+�cs SINN O COUNTY C:rx Juror 12,1991 0 , Opel 18 STATE DF' A ' FORM COUNTY Off' X I+-A-I*"M//*/I A lILI , 1990 , before me, the under- signed, a; Notar a is or -t- State of California, duly com- missioned and sworn;, personally appeared personally Known to me or proved to ane on the basis of satisfac- tory evidence to be the person who executed the within instrument as the ,t rt'.l� , of the corporation that executed the with- in instrument and acknowledged to me that such corporation exe- cuted the within instrument pursuant to its Bylaws or a resolu- tion of its Board of Directors . FITNESS my hand and ofCIAl seal, j/'Zj'V/ No7t - Public in an forSt and County NOTARIAL SEAL OFFICIALSEAL %- WrARY N A,1C-CALIFO NIA Mt E OCT 4. 1991 19 10/ as ------------- DEVELOPMENT FEES EXHIBIT "A" DEVELOPMENT PEES STORM DRAIN (Per Ordinance No. 2037, Resolution No. 4458 3/6:/89) Site Area Street Area STREET CONSTRUCTION (Per Ordinance No. 2038 , Resolution No. 4393 - 9/6/88) TRAFFIC SIGNAL (Per Ordinance No. 2039, Resolution No. 4394 9/6/88) POLICE STATION (Per Ordinance No 2048 , Resolution No. 4429 - 2/21/89) FIRE STATION (Per Ordinance No. 2048, Resolution No. 4429 2/21/89) Building Area (New), Building Area (No. 3) LIBRARY (Per Ordinance No. 2048 , Resolution No. 4429 - 2/21/89) CITE` HALL (Per Ordinance No., 2048 , Resolution No. 4470 -- 4/21/89) CITY YARD (Per Ordinance No. 2048 , Resolution No. 4470 - 4/21/89) GRATER SERVICE AREA (Per Ordinance No. 2079 - 5/23/89) WATER CAPITAL IMPROVEMENT (Per Ordinance No. 2879 - 5/23/89)' SEWER CAPITAL IMPROVEMENT (Per Ordinance No 2079 - 5/23/89)' FRONTAGE CHARGES y- GRA'T'ER & SEWER (leer Ordinance No. 2079 - 5/23/89) TOTAL DEVELOPMENT FEES : 1 ,092,196 .09 EXHIBIT "A". nage 1 of 1