HomeMy WebLinkAboutOrdinances_2437_CCv0001.pdf ORDINANCE NO. 2437
Al" ORDINANCE OF THE CITY OF REDLANDS APPROVING A DEVELOPMENT
AGREEMENT WITH MOUNTAINVIEW POWER COMPANY, LLC
THE CITY COUNCIL OF THE CITY OF DLANDS does ordain as follows:
_Section I, The Development Agreement dated April 18,2000, with Mountainview Power
Company,LLC(the"Development Agreement")has been reviewed by the City Council of the City
of Redlands and this City Council, after considering the verbal and written testimony provided at
a duly noticed public hearing on the Development Agreement, determines:
1. The Development Agreement is consistent with Section 4.80 of the Redlands General
Plan which contains policies governing the development of industrial land uses within
the City.
2. The generation of electricity by Mountainview Power Company, LLC is compatible
with the uses authorized in, and the regulations prescribed for in the M-2, General
Industrial District under the applicable specific plan governing the Mountainview
Power, LLC project. 4
3. The Development Agreement will promote the public convenience and general welfare
of the citizens of Redlands and promotes good land use practice.
_Section 2. The City Council hereby adopts the findings made by the City's Planning
Commission in making its recommendation to this City Council to approve the Development
Agreement.
Section 3. The Development Agreement is hereby approved in the form attached hereto as
Exhibit "A" and the text of the Development Agreement is incorporated herein by this reference.
5-ection 4. The Mayor shall sign, this ordinance and the City Clerk shall certify to the
adoption of this ordinance and shall cause it, or a summary of it, to be published once in the
Redlands Daily Facts, a newspaper of general circulation within the City, and thereafter, this
ordinance shall take effect in accordance with law.
Mayor of the City of Redlands
Attest,
J
CityOerk
[AdPwOrdQ437 Mo6ntainview.wpd
1, Lorrie Poyzer, City Clerk of the City of Redlands, hereby certify that the foregoing ordinance
was duly adopted by the City Council at a regular meeting thereof held on the 17th day October,
2000, by the following vote:
AYES: Councilmembers George, Freedman, Peppler, Haws;
Mayor Gilbreath
NOES: None
ABSENT: None
ABSTAINED: None
Ciay e�rk
Recording requested y and Exhibit "
When recorded return to-
City
oCity Clergy's Office
City of Redlands
Past Office Box 3005l 1
Redlands, Califomia 92373 11P
DEVELOPMENT EMEND BETWEEN
E CITY OF REDLANDS,, CALIFORNIA
AND
Recorded in Official Records, County of
w
Sari Bernardino, Larry Talker; Recorder
Recording requested by and Doc No .
When recorded return to:: am 10/24/00
Ci
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TABLE OF CONTENTS
_ ]PaLe
1° DEFINITIONS
3L
,�Y�D���3�&����'~"'-~�_'°^,_____-.__--.___-,.__-°_~,-___,~___
1.3 Definitions ........ 4
Exhibits ''_---~~-~^°-='=-'=" -"--~ 4�
1 GENERAL PROVISIONS. --~~~`~~, -`°-'-^--^°--^^~ '*
21 Agreement ....-.-... ^f
12 Ownership of Property.~~~~ .......1-----"'- 4
2.3 ...... ........ 4
^��� -~~--,_-...... ....... _-= 4�
�2.5 - ......___....` ......... _ ........ 5
2.6 ...... . ........_'--................. .-~.........~-._--_=^.~-~ 5
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17 Notices. ,~~_____,~_�_,_~_=,,^=_� _,_~_~__.-.~~_~-_...---.
3. OF THE PROPERTY '-^~^"^-~~``~---~-~~^-~ 6
3'1 'Rights to Develop..,__^~-......... .....---....... - - ._.._- -~.-.-^"-_-~~~..~~ «6
3.2 Effect of Agreement on Lan d Use Regul ations.. - -~_. .....~ ...... 6
33 ... ......~ -~-~° ........ --_--__~-_......---...~ 7
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3`4 Duration of Development Approvals
�.=�_____=.'-__--_^-.---.~.~~-^^~~-~``~~^~~
.3.5 Subsequent DevelopmentApprovals Implementing the -.'-.-.7
16 Changes and Amendments to'Existing Development Approvals --_~~~-~ ........... 7
17 ~~~_-~~^,-_e`".~_..--_-^-.-'_~,~~`~ 8
3.8� ..... ...... 9
.19 Regulation by Other ___,,,_, ............ 10�
4, CONFLICTS OF LAW .... ~.~^~~_=.. �-,_~'-.~~_.`-'-- .... 11
4�1 Conflict with State or Federal Laws or Action of Other Governmental
Jurisdiction.,. .---^^^'°-'^-^'-~^^'~`-`^'~-�^~-`= ^°
4.2 Notice. -.~_~�--~~�`~~-~-�`---^^=��=~
4.31 Modification Conference ......... .^.-`^,_.,_-~ .........
4A gCity 12
5 Cooperation in Securing Permits or Approvals -=,^-"^---^--e.,---- 12
4�6 Challenge Regarding New Law' .............-_r-......_ 12'
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5. LM11TATION ON NEW GENERAL TAXES AND SPECIAL TAXES, ,..a.. .............:. 12
.1 General..._.......::..... .. :..... .......,._..,.,...........................___ ....:,;....,. :.....,,. ;...: 12
5.2 Business License Tapes and Fees............. ........ :.......... .........
Special Tax.for Emergency Paramedic Service ....,-.......—. ...:..... ...::... .... 13
RESTRICTION ON SPECIAL DISTRICTS. . ....._........ ........ .. ...... ...::...... . :......
13
ANNUAL REVIEW.,....:........a. , ,...,,:.s...._... ..., 1
T1 Procedure,......... .... 3)
1�
7. Information to lie Provided OWNER.- ....... ..... . :: ........ ........ ..... ...:.......
13
T3Failure to Perform Periodic Review :........ . .......... ....,:...........:,..,.... ;.u..... _ ...... 1
ESTOPPEL CERTIFICATES. :.. ........... ...:..... ....... ....:.:...... . :.... .:::................... ,.... 1
. DEFAULT AND REMEDIES.........:...... .......................-........ .. .... ..;..,..,.... ........ ....... 1 ,
.1 General Provisions......... ............. ....... ....:... ..............> . . .,,:, ............. ,.,.:a ..,. 1
,`? Cumulative Remedies.... ........ ..........................:. ..... ..,,..... ..,.,.........,, 1
9.3 Attorneys' Fees and Costs...... ...... ..... ... ...... ..:......... ...... .. :..... 1
10, MORTGAGEE PROTECTION .......;:; .....:.......... :... .... ....... ......... ... ...... ........... . ..... 1
11. MISCELLANEOUS PROVISIONS....................:............,....... ...,., ...:- ......w:.,....., ::..... 1
11.1 Recordation of Agreement............ ...... .............. ...... .:...... .:.......... : ........ ..... 1
11.2, Entire Agreement.. ......_....... ........ ............. ........ ........ ..: .... ..: ........ ...... 1
11.3 Severability....... ,.. __.........____.........,,.........._,.. ...,......., .. ........,. ... .......... 1
11.A Interpretation and Governing Law ............ ........ ................. .< ......... ., ..,... ..,... 16
11,5 Section Headings....... ..: ....... :.......:: . ............ ....... ... :..... .:. ........ ...... . r::..., lei
IL6 Rules of Construction ..... .. ... ............. ..... ......
1
11.7 Consent_,,......... ... ........ ..,....:;.r ,....::. .,,.......... .....,. .,....,..... ..,..._..... .... 1
16
IL8 Time of Essence-...... ...:...... .;...... ..,..... ......,...... ........... ............ ,..:...a....., ....
11.9 Waiver_....... ..
11,10 No Third—Party Beneficiaries .,. ..,..,,.......... .. ..... ::.... ... ...... ,;. ..,,.. .. 17
11.11 Force t a cure....... .......:. ......: ......... ................. :....... ..:..... ...................... :..... 17
11.12 Mutual Covenants .........
17
IL 13 Successors in Interest,..:... ................ ................. :.. ......:........-...., ;.... I7
11.14 Counter ............... ... ....... ........: .......: ........ :...... .::...... ........ ..:........ ...... 17
IL15 Project as a Private Undertaking ............ ............ ...... ...... ..... 1
11.16 Further Actions and Instruments ....,::,;.... ...::........:... .....::.. .... :.. ......_..,...... ....., 17
11.17 Covenant of Good Faith and Fair Dealing..... :: .......:..... ..:.: ............ ........... 17
ll.l& Integrated Pnject--------------___—_......... ......... —_---- 10
11]9 Authority
to Executc— .......--------------....... .............. 18
}].20 Indemnification..... ......--------- ........----- ........................ 18
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DEVELOPMENT AGREEMENT
This Development Agreement(hereinafter"Agreement") is entered into effective on the
date it is recorded with the San Bernardino County Recorder(hereinafter the"Effective Date")
by and between the CITY OF REDLANDS (hereinafter"CITY'), and the MOLNTAINVIEW
POWER COMPANY, LLC (hereinafter"OWNER:').
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with
persons having legal or equitable interests in real property for the development of such property,
pursuant to Section 65864 et seq. of the Government Code; and,
WHEREAS, CITY has adopted rules and regulations for consideration of development
agreements, pursuant to Section 65865 of the Government Code; and,
WHEREAS, OWNER has a legal or equitable interest in certain real property and plans
to acquire a legal or equitable interest in certain additional real property(the"Property" as
hereinafter defined) located in the unincorporated area of the County of San Bernardino and
within the sphere of influence of the CITY; and,
WHEREAS, OWNER has requested CITY to enter into a development agreement and
proceedings have been taken in accordance with Section 65864 et se . of the Government Code
and the rules and regulations of CITY, and,
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City
Councils of CITY by the obligations specified herein and limit the future exercise of certain
governmental and proprietary powers of CITY; and,
WHEREAS,it is the policy of the CITY to support the retention and expansion of
businesses in the CITY in order to increase employment, maintain a stable tax base, attract new
businesses, and promote a diversified, stable, and healthy local economy, and,
WI-IEREAS, the assurances provided by this Agreement are necessary in order to provide
the certainty which will allow OWNER to make the long-term commitments involved in
expanding its facilities and operations in the CITY; and,
WTIEREAS, the ter-ins and conditions of this Agreement have undergone extensive
review by CITY, its Planning Commission and City Council and have been found to be fair,just
and reasonable; and,
WHEREAS, all of the procedures of the California Environmental Quality Act(Public
Resources Code Section 2 1000 et 1S.)have been met with respect to this Agreement, and,
WHEREAS, this Agreement is consistent with the CITY'General Plan, and,
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WHEREAS, all actions taken and approvals given by CITY have been duly taken or
approved in accordance with all applicable legal requirements for notice, public hearings,
findings, votes, and other procedural matters, and,
WHEREAS, development of the Property in accordance with this Agreement will
provide substantial benefits to CITY and will further important policies and goals of CITY; and,
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the
orderly development of the Property, ensure progressive installation of necessary improvements,
provide for public services appropriate to the development of the Property, and generally serve
the purposes for which development agreements under Sections 65864, et sig. of the
Government Code are intended; and,
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order
to assure development of the Property in accordance with this Agreement; and,
WHEREAS, the Planning Commission of the CITY has considered this Agreement after
a duly-noticed public hearing and has made written findings and recommended its adoption to
the City Council; and,
- WHEREAS, the City Council has reviewed and hereby approves the provisions of this
Agreement, adopts the findings of the Planning Commission and further finds that this
Agreement is in conformance with the CITY General Plan and that its implementation is in the
best interests of CITY and the health, safety and welfare of its residents,
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
COVENANTS
I DEFINITIONS AND EXHI13ITS.
LI Definitions. The following terms when used in this Agreement shall be defined as
follows:
1.1.1 "Agreement"me this Development Agreement.
1.1,2 "CITY' means the City of Redlands, a municipal corporation
organized and existing under the laws of the State of California.
1 1.13 "Development", "development,'; and"develop" mean the
improvement of the Property for the purposes of completing the structures, improvements and
facilities comprising the Project including, but not limited to: grading',the construction of
infrastructure and public facilities related to the Project whether located within or outside the
Property; the construction, demolition, reconstruction and redevelopment of buildings and
structures; and the installation of landscaping,
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LIA "Development Agreement Regulations" means the regulations adopted
by the CITY pursuant to Section 65865 of the Government Code establishing procedures and
requirements for the consideration of development agreements which are contained in Chapter
18,220 of the Redlands Municipal Code.
1,1.5 "Development Approvals" means all pen-nits and other entitlements
for use subject to approval or issuance by CITY in connection with development of the Property
including, but not limited to.,
(a) Tentative and final subdivision and parcel maps'.
(b) Conditional use permits, site plans and variances-,
(c) Grading and building permits.
(d) Occupancy permits.
1.1.6 "Development Exaction" means any requirement of CITY in
connection with or pursuant to any Land Use Regulation or Development Approval for the
dedication of land,the construction of public improvements or public facilities, or the payment
of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the
environment or other public interests.
1.1.7 "Development Plan7 means the Existing Land Use Regulations
applicable to development of the Property.
1.1,8 "Effective Date" means the date this Agreement is recorded with the
San Bernardino County Recorder,
1.1.9 "Existing Land Use Regulations" eans all Land Use Regulations in
effect on the Effective Date. All Existing Land Use Regulations applicable to development of
the Property are listed on Exhibit"C" and incorporated herein by reference. CITY shall provide
OWNER with two certified copies of all Existing Land Use Regulations within five(5) calendar
days after the Effective Date,
1.1.10 "Land Use Regulations" means all ordinances, resolutions, codes,
rules, regulations and official policies of CITY governing the development and use of land,
including, without limitation: the permitted use of land; the density or intensity of use,
subdivision requirements; the maximum height and size of proposed buildings, Development
Exactions, regulations regarding the rate, time or sequence of development, and the design,
improvement and construction standards and specifications applicable to the development of the
Property, "Land Use Regulations" includes any CITY ordinance or regulation adopted by
initiative or referendum.
1.1.11 "OWNER" means the Mountainview Power Company, LLC, a
Delaware limited liability company, and its successors in interest to all or any part of the
Property.
LL12 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a
deed oft st or any other secured lender, and their successors and assigns,
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1.1.13 "Project" means the development of the Property as provided by the
Development Plan as such Development Plan may be further defined, enhanced or modified
pursuant to the provisions of this Agreement.
1-1.14 "Property" means the real property described on Exhibit"X' and
shown on Exhibit"B" to this Agreement. Exhibit"A" and Exhibit"B" shall be amended, if
necessary, to describe the real property in which OWNER has a legal or equitable interest at the
time of final adoption of the ordinance approving this Agreement.
1.1.15 "State Energy Commission" means the State Energy Resources
Conservation and Development Commission established and existing under the Warren-Alquist
State Energy Resources Conservation and Development Act, Public Resources Code Section
25000 et seq.
1.1.16 "Subsequent Development Approvals" means all Development
Approvals required subsequent to the Effective Date in connection with development of the
Property.
1.1.17 "Subsequent Land Use Regulations" means any Land Use Regulations
adopted and effective after the Effective Date of this Agreement,
1.2 Exhibits. The following documents are attached to, and by this reference made a
part of,this Agreement:
Exhibit"A" —Legal Description of the Property,
Exhibit"B"—Map showing Property and its location.
Exhibit"C"—Existing Land Use Regulations.
I GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this
Agreement. Development of the Property is hereby authorized and shall be carried out in
accordance with the terms of this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the owner of
a legal or equitable interest in the Property.
23 Term, The term,of this Agreement shall commence on the Effective Date and
shall continue for a period of thirty (30) years thereafter unless this to is modified, extended or
terminated pursuant to the provisions of this Agreement
2.4 Assignment. OWNER shall have the right to sell, assign or transfer the Property
in whole or in part(provided that no such partial transfer shall violate the Subdivision Map Act,
Government Code Section 66410 et to any person, partnership,joint venture, firm or
corporation at any time during the to of this Agreement.. Any such sale, assignment or transfer
may include the assignment of those rights, duties and obligations arising under or from this
Agreement which are applicable to the Property or part thereof being assigned, transferred or
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sold. No sale, transfer, or assignment of any right or interest under this Agreement shall be made
unless made together with the sale, transfer, or assignment of all or a part of the Property. The
express written assumption of any or all of the obligations of OWNER under this Agreement bv
such assignee, transferee or purchaser shall relieve OWNER of its legal duty to perform such
obligations under this Agreement. Any purchaser, assignee or transferee of OWNER shall have
all of the rights, duties and obligations of OWNER under this Agreement insofar as such rights,
duties and obligations are applicable to the Property or part thereof purchased, assigned or
transferred.
2.5 Amendment or Cancellation of Agreement. Ibis Agreement may be amended or
cancelled in whole or in part only by written consent of all parties in the manner provided for in
Government Code Section 65868. This provision shall not limit any remedy of CITY or
OWNER as provided by this Agreement.
2.6 Ternimation, This Agreement shall be deemed terminated and of no further effect
upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance approving this Agreement or otherwise invalidating this Agreement,
(c) The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement.
(d) Failure to complete annexation proceedings annexing the Property to the
CITY within one year of the Effective Date. The parties may extend this time period for
completion of annexation proceedings by written agreement. If annexation proceedings are not
completed within such time period, including any extension thereof, this Agreement shall not
become operative and shall become null and void.
Termination of this Agreement shall not affect or constitute termination of any other
Development Approvals approved for the Property.
17 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the
communication of notice, request, demand, approval,statement, report, acceptance, consent,
W aiver, appointment or other communication required or permitted hereunder.
(b) All notices shall be in writing and shall be considered given either,
(i)when delivered in person to the recipient named below;or(ii)on the date of delivery shown
on the return receipt, after deposit in the United States mail in a sealed env-elope as either
registered or certified mail with return receipt requested, and postage and postal charges prepaid,
and addressed to the recipient named below; or(iii) on the date of delivery after transmission by
facsimile to the recipient named below. All notices shall be addressed as follows-
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If to CITY, City of Redlands
35 Cajon Street
P.O.Box 3005
Redlands, 'California 92373
Fa . (919) 798-751
Attention: City Manager
With a copy to: City ofRedlands
35 Cajon Street
P.O. Box 3005
Redlands, California 92373
Fax: (909)798-7595
Attention City Attorney
f to O 1'' ountainview Power Company,LLC
25770 San.Bernardino Avenue
San Bernardino, California 924118
Attention: Scott A. Noll
Fax: (909)478-7910
With a copy to: Pillsbury Madison& Sutro LLP
650 Town tenter Drive, 7th Floor
Costa Mesa, California 92626
Attention: Robert L, Klotz,Esq.
Fax: (714) 436-280
(c) Either party may, by notice given at any time,require subsequent notices
to be given to another person or entity,whether a party or an officer or representative of a party,
or to a different address, or both. Notices given before actual receipt of notice of change shall
not be invalidated by the change.
3 a
DEVELOPMENT OF THE PROPERTY.
3.1 Ri, hts to Develop. OWNER shall have a vested right to develop the Property in
accordance with, and to the maximum extent provided in, the Development Plan. Specifically,,
OWNER shall have a vested right to develop the Property to the maximum extent allowed under
the M-2 (G=eneral Industrial) "gone provided that the development standards and performance
standards of the M-2 Zone are satisfied. The Project shall remain subject to all Subsequent
Development Approvals required to complete the Project as provided by the Development Plan.
Except as otherwise provided in this Agreement, the permitted uses of the Property, the density
and intensity of use, the maximum height and size of proposed buildings, provisions for
reservation and dedication of land for public purposes and construction standards and
specifications applicable to development of the Property shall be those set forth in the
Development Plan.
_2. Effect of.Agreement on Land Lyse Ret lations. Except as otherwise provided
under the terms of this Agreement,the Land Use Regulations applicable to development of the
Property shall be the Existing Land Use Regulations, and no Subsequent Land Use Regulation
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shall be applicable to the Project. If there is any conflict between any Existing Land Use
Regulation and any other provision of this Agreement, such other provision of this Agreement
shall be controlling,
3.3 Timing of DevelopElent. The parties acknowledge that OWNER cannot at this
time predict when or the rate at which the Project will be developed. Such decisions depend
upon numerous factors which are not within the control off R, such as business demand,
interest rates, competition and other similar factors. Since the California Supreme Court held in
Pardee Construction Co- v. City of Camarillo (1 984)37 Cal.3d 465, that the failure of the parties
therein to provide for the timing of development resulted in a later adopted initiative restricting
the timing of development to prevail over such parties' agreement, it is the parties' intent to cure
that deficiency by acknowledging and providing that OWNER shall have the right to develop the
Property in such increments and in such order and at such rate and at such times as OWNER
deems appropriate within the exercise of its subjective business judgment. In the event any
Subsequent Land Use Regulation is enacted which relates to the rate, timing or sequencing of
development of property within the CITY, CITY agrees that such Subsequent Land Use
Regulation shall not apply to the Project. Inaddition to and not in limitation of the foregoing,
CITY agrees that no moratorium or other limitation affecting subdivision maps, building permits
or other entitlements for use within the CITY or any part of the CITY shall apply to the Project.
1 3A Duration of Development Approvals: Notwithstanding any provision of the
Existing Land Use Regulations, all Development Approvals shall remain valid and effective for
all purposes during the term of this Agreement unless OWNER consents inwriting to earlier
termination.
3, Subsequent Development Approvals Implementing the Development Plan.
Completion of development in accordance with the Development Plan may require the approval
and issuance by the CITY of Subsequent Development Approvals including without limitation
grading permits, building permits, and occupancy permits. CITY acknowledges and agrees that
all such Subsequent Development Approvals required to implement and complete development
in accordance with the Development Plan shall be approved consistent with the vested rights
granted to OWNER by this Agreement. In acting on such Subsequent Development Approvals,
CITY shall act promptly, reasonably and in accordance with the Development Plan. No later
than,thirty (30)days after receipt of an application for any Subsequent Development Approval,
CITY shall notify OWNER in writing whether the application is complete., specifying any
information required to make the application complete. Whenever an application for a
Subsequent Development Approval does not require an environmental impact report under the
California Environmental Quality Act, Public Resources Code Section 2 10(10 et s ("CEA''),
CITY shall approve and issue any such Subsequent Development Approval within one hundred
five(105)days after CITY accepts an application therefor as complete, provided such
application complies with the Development Plan. When an application for a Subsequent
Development Approval requires an environmental impact report under CE A., CITY shall
approve and issue any such Subsequent Development Approval within one(l year after CITY
accepts an application therefor as complete, provided such application complies with the
DevelopmentPlan.
16 Chancres and Amendments to Existing Development Approyals. The parties
acknowledge that refinement and further development of the Project may require Subsequent
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Development Approvals which change the Development Plan. In the event OWNER finds that
change in the Development Flan is necessary or appropriate, OWNER shall apply for a
Subsequent Development Approval to effectuate such change and CITY shall promptly process'
d act on such application in accordance with the Existing band Use Regulations, except as
otherwise provided by this Agreement. If approved, any such change in the Development Mari
shall be incorporated herein as an addendum to Exhibit "C", and may be further changed from
time to time as provided in this Section. Unless otherwise required by law, a change to the
Development Plan shall be deemed "minor" and not requite an amendment to this Agreement
provided such change does net.
(a) Alter the permitted uses of the Property as a whole; or,
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings, or,
(d) Delete a requirement for the reservation or dedication of land for public
purposes within the Property as a.whole.
3.7 Reservations of Authority. Notwithstanding any other provision of this
Agreement, the following Subsequent Land Use Regulations shall apply to the development of
the Property.
(a) Generally applicable processing tees and charges unposed by CITY to
cover the actual costs to CITE"of processing applications for Development Approvals or
for monitoring compliance with any Development Approvals granted or issued. Such
processing fees and charges shall not exceed the reasonable estimated costs of providing
such services.
(b) Regulations which are not in conflict with the Development Plan. Any
Land Use Regulation which increases the costs of development(except for development
Fees imposed as provided:by this Agreement) and any Land Use Regulation, whether
adopted by initiative or otherwise, limiting the rate or timing or sequencing of
development of the Property shall be deemed to conflict with the Development flan and
shall therefore not be applicable to the development of the Property;
(c) Regulations which are in conflict with the Development Plan provided
OWNER has given written consent to the application of such regulations to development
of the Property.
(d) Development fees imposed on City approval of a"development project"
as defined by Government Code Section 66000 et seq., and necessary to cover 100%of
such development's pro rata share of the cost of any public infrastructure or facility
required as a result of City approval of such "development project."
3,8 Development Exactions,
3.1 ,1 General. All Development Exactions currently applicable to the
Project are included in Section 3.8.2. CITE`shall not impose any Development Exaction on
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development in accordance with the Development Plan except as set forth in Section 3. .2 or as
authorized under subsection (d)of Section 3.7 above. OWNER may challenge any Development
Exaction by appropriate judicial action within ninety days of imposition by the CITY.
18,2 Aapl cation. In order to provide greater certainty for both CITY and
OWNER with respect to the application of Development Exactions to e Prope v
ti the rt� , CITY and
OWNER have agreed, as follows:
(a) No Development Exaction shall be levied or collected by CITY
from OWNER until and unless OWNER requests and receives the respective service for sewer
capital improvements under Section 3.44,010, et sig, of the Municipal Code, sewer frontage
under Section 13.44.120, et sem. of the Municipal Code, water capital improvements under
Section 3.48.010, et sSq. of the Municipal Code, water frontage under Section 13.12.010, et Leg.
of the Municipal Code,water source acquisition under Section 13.40.010, et sem, of the
Municipal Code, or water meters under Title 13 of the Municipal Code. In the event such
service is requested and received, OWNER shall pay the fees in effect at the time service is
received.
(b) Any Development Exaction imposed or collected by the CITY
with respect to solid waste capital improvements under Section 3,70.010, et sS. of the Municipal
Code shall be limited to $52.00/PPD of the estimated waste stream during long-term operations.
Solid waste service shall be provided by the CITY; provided, however, Cl ER.may provide
for solid waste disposal through an independent construction contractor during any construction
which may occur on the Property, if such independent construction contractor provides its own
trucks and does not subcontract to a provider of solid waste handling services.
(c) Any Development Exaction for street construction imposed or
collected by CITY for street construction under Section 3.54.040, et sem. of the Municipal Code
shall be limited to $75.36 per average daily trip estimated to be generated by long-term
operations on the Property in excess of the current level of 22 average daily trips.
(d) Any Development Exaction imposed or collected by CITY for
traffic signalization fees under Section 3.58.070, et sem. of the Municipal Code shall be limited to
$6,93 per average daily trip estimated to be generated by long-term operations on the Property in
excess of the current level of 22 average daily trips,
(e) Any Development Exaction imposed or collected by CITY for
storm drain facilities under Section 3.56,010, et se of the Municipal Code shall not exceed the
sum of(i) $3,060.00 per acre of new undeveloped land upon which new permanent facilities may
be constructed, and (ii) 15 cents per square foot of new paved/impervious area within the area of
the Property occupied by existing facilities.
(f) Any Development Exaction for public facilities imposed or
collected by the CITY under Section 3.60.010, et se . of the Municipal Code shall be limited as
follows:
(i) Public facilities fees for Fire Station No. 3 shall be limited
to I cent per square foot of new incremental building area that is used for human occupation or is
occupied by electronic controls,
40026906v7 -9-
(ii) Public facilities fees for fire stations other than Fire Station
No. 3 shall be limited to 9 cents per square foot of new incremental building area that is used for
human occupation or is occupied by electronic controls.
(iii) Public facilities fees for police, library, civic center, and
CITY yard shall be applied on an acreage basis based on the acreage of new land which has not
been previously developed and on which new permanent facilities are constructed. The current
public facilities fees are as follows: police— $616 per acre, library—$711 per acre; civic
center— $129 per acre; and CITY yard —$2,431 per acre,
(iv) Any Development Exaction imposed or collected by the
CITY for open space and parks under Section 3.3 .010, et se A. of the Municipal Code shall be
limited to 14 cents per square foot of new incremental building area that is used for human
occupation or is occupied by electronic controls.
(g) The limitations on the amount and rate of development fees set
forth in subsections (a)through (f)above shall apply until January 1, 2004. After January 1,
2004, CITY may impose and collect any increase in such development fees and any new
development fee enacted as a Subsequent Development Regulation pursuant to subsection (d)of
Section 3.7 above. The manner of calculation of any such increased development fee or new
development fee(i.e. any such fee shall be calculated based on the increment of new
development)shall be as set forth in subsections (a) through(f) above. The preceding sentence
shall not prevent the CITY from amending or enacting any development fee to use a different
formula or basis for calculation provided that any amendment or enactment shall be applied only
to the increment of new development.
3.9 Regulation by Other Public Agencies.
19A General, It is acknowledged by the parties that other public agencies
not within the control of CITY possess authority to regulate aspects of the development of the
Property separately from or jointly with CITY and this Agreement does not limit the authority of
such other public agencies, CITY shall support any application by OWNTER to any other public
agency for any permit or approval which is required for the Project. Within fifteen (15)days of
any request, CITY shall provide to 4 E or to such other public agencies information
possessed by CITY and necessary for processing such applications.
3.91 State Energy Commission. The err-Al dist Act, Public Resources
Code Section 25000 et n., and its implementing regulations, 20 C.C.R. Section 1001 et Leq-,
provide that the MateEnergyCommission shall have the exclusive power to certify all sites and
related facilities, including any modification of an existing facility, resulting in a 50-megawatt or
more increase in the electric generating capacity of an existing thermal powerplant. Public
Resources Code Sections 25500 and 25123. The issuance of a certificate by the State Energy
Commission preempts local government jurisdiction and replaces any permit, certificate,or
similar document required by any local agency, Public Resources Code Section 25500.
OWNER may decide to develop the Property by filing a notice of intention and application for
certification of the site and related facilities within the exclusive jurisdiction of the State Energy
Commission. If OWNER seeks such certification from the State Energy Commission, the
following provisions shall apply:
40026806v7 -10-
(a) CITE'"shall file a timely written response with the State
Energy Commission to any notice or request for information transmitted by the Mate Energy
Commission to the CITY, Prior to filing any such response, CITY shall meet and confer with
OWNER, and OWNER shall be entitled to provide both written and oral comments on the draft
response of the CITY. Any such written response by the CITY and any oral testimony by the
CITY before the State Energy Commission,shall be consistent with the vested rights granted to
OWNER by this Agreement.
(b) Development of the Property in accordance with State
Energy Commission certification of the site and related facilities shall not be subject to any
Subsequent Development Approval from the CITY including, without limitation, site plan
approval under Section 18 116.020 of the Redlands Municipal Code, site plan approval under
Sections 18.12.170 et se of the Redlands Municipal Code, architectural review approval under
Sections 18.12.1 0 et of the Redlands Municipal Code, socioeconomic review approval
under Section 18,12.200 of the Redlands Municipal Code, building permit approval under
Sections 18.188.010 et§Leq. or any other provision of the Redlands Municipal Code, and zoning
clearances and certificates of occupancy under Sections 18.188,090 et sec , of the Redlands
Municipal Code:
(c) Any request for reimbursement submitted by the CITY to
the State Energy Commission pursuant to 20 C.C.R. Section 1715, or any similar or successor
provision of law, shall be subject to the,limitations on Development Exactions set forth in this
Agreement including,without limitation, the provisions of Section 3.8.2. Until January 1,2004,
CITY shall not request reimbursement for any Development Exaction except for the
Development Exactions set forth in Section 3.8.2. CITY shall meet and confer with OWNER
prior to submitting any such request for reimbursement.
4` CONFLICTS OF LAW.
4.1 Conflict with State or Federal Laws or Action of Other Cove ental
Jurisdiction. In the event that State or Federal laws or regulations, enacted after the Effective
Date of this Agreement, or the action by any governmental jurisdiction other than the City,
prevent or preclude compliance with one or more of the provisions of this Agreement, such
provisions of this Agreement shall be modified or suspended as may be necessary to comply
with such State or Federal laws or regulations or non-City governmental action; provided,
however, that this Agreement shall remain in full force and effect to the extent it is not:
inconsistent with such laws,regulations or non.-City governmental action and to the extent such
laws, regulations or non-City governmental action do not render such remaining provisions
impractical to enforce.
4,2 Notice. Any party which determines that it cannot perform any act authorized or
rewired by the Agreement due to a conflict described in Section 4.I shall,within fifteen 5
days of making such determination,provide all other parties with written notice stating the
conflict with the provisions of this Agreement';
4.3 Modification Conference. The parties shall, within thirty(30)days after notice i
provided in Section 4.2, hereof, meet and confer in food faith in a reasonable attempt to modify
this Agreement to comply with such law,regulation or non-City governmental action.
400 ®11
4,4 City Council Hear. Within thirty (30) days after the modification conference,
regardless of whether the parties reach an agreement on the effect of such law or regulation upon
this Agreement, the matter shall be scheduled for hearing before the City Council. Notice of
such hearing shall be given pursuant to Sections 65090 and 65091 of the Government Code. The
City Council, at such hearing, shall consider the exact modification or suspension which shall be
necessitated by such law, regulation or non-City governmental action., OWNER shall have the
right to offer oral and written testimony at the hearing. No modification or suspension of this
Agreement shall be effective unless approved by the affirmative vote of not less than a majority
of the authorized voting members of the City Council and by O
4,5 Cooperation in Securing Permits or Approvals. CITY shall use its best efforts to
assist OWNER in the timely securing of any permits or approvals which may be required as a
,result of such modifications to, or suspensions of, all or any part of this Agreement.
46 Challenge Regarding New Law or Regulation. OWNER or CITY shall have the
right to challenge by appropriate judicial proceedings any such new law,regulation or non-City
governmental action preventing compliance with the terms of this Agreement. In the event that
such challenge is successful, this Agreement shall remain unmodified and in full force and effect.
5LIN41TATION ON NEW GENERAL TAXES AND SPECIAL TAXES.
5.1 General, During the term of this Agreement, CITY shall not levy or collect any
new general tax or special tax on the Property or any business conducted on the Property. New
general taxes and new special taxes, as used in this Section, shall include any general tax or
special tax which had not been adopted and become effective prior to the Effective Date of this
Agreement. OWNER shall be entitled to an exemption from any such new general tax or new
special tax or shall be entitled to a credit equal to the full amount otherwise payable as such new
general tax or new special tax. The limitations of this Section shall not prevent the CITY from
levying or collecting any lawfully adopted increase in any general tax or special tax applicable to
the Property or businesses conducted on the Property(assuming the Property were within the
jurisdiction of the CITY)on the Effective Date provided such increase is generally applicable
throughout the CITY and does not discriminate against the Property or any business conducted
on the Property.
5.2 Business License Taxes and Fees. With respect to business license taxes and fees
levied and collected pursuant to Section 5.04.0 10, et sSq. of the Municipal, Code, CITY and
OWNER agree that the business conducted on the Property does not conform to any of the
existing rate classifications for businesses. Accordingly. CITY and OWNER agree that the
provisions of this subsection shall govern and limit the payment of any business license tax or
fee by the CITY during the to of this Agreement under any CITY enactment of the CITY with
respect to business license taxes or fees, whether pursuant to the existing provisions of Section
5,040.010, et . of the Municipal Code or any similar or successor enactment. OMNERshall
pay business license taxes and fees based on an annual rate of$30.00 for the first$100,000.00 in
gross receipts, plus $2.50 for each additional $10,0 0.00 or portion of$10,000.00 in gross
receipts', provided, however, no payment shall be required of OWNER in any year inexcess of
Twenty-Five Thousand Dollars ($25,000.00), The provisions of this subsection shall prevail
over the provisions of any existing or future enactment of the CITY and any other provision of
this Agreement,
400268060 -12-
5.3 With respect to the special tax for
emergency paramedic service levied and collected by the CITY pursuant to Ordinance No. 1900,
CITY and OWNER agree that the annual special tax with respect to the Property or businesses
operated on the Property shall not exceed the sum of$600.00 during the to of this Agreement.
The provisions of this subsection shall prevail over the provisions of any existing or future
enactment of the CITY and any other provision of this Agreement,
6. RESTRICTION ON SPECIAL DISTRICTS.
During the term of this Agreement, no assessment district or special tax district including
all or any part of the Property, will be created by the CITY or any agency or instrumentality of
the CITY, nor shall all or any part of the Property be annexed to any existing assessment district
or special tax district, unless OWNER agrees in writing to such creation or annexation and the
to and conditions of any assessments or special taxes to be levied thereunder.
7. ANNUAL REVIEW.
TI Procedure, CITY shall, every twelve (12)months during the to of this
Agreement, review the extent of good faith compliance by Cts NER with the terms of this
Agreement in accordance with Government Code Section 65865.1 and the Development
Agreement Regulations and as further provided in this Section. OVVNER shall have the duty to
demonstrate its good faith substantial compliance with the terms of this Agreement at such
annual review. OWNER shall furnish such evidence of good faith compliance as the CITY in
the exercise of its reasonable discretion may require. Either party may address any requirements
of this Agreement during the review. However, ten(1 0)days' written notice of any requirement
to be addressed shall be made by the requesting party, If at the time of review an issue not
previously identified in writing is required to be addressed, the review at the request of either
party shall be continued to afford sufficient time for analysis and preparation. CITY shall not
terminate or modify this Agreement except upon substantial evidence showing a failure of
OVVNER to perform a material duty or obligation under this Agreement whichhas not been
cured by OWNER as provided under Section 9.1 of this Agreement. In the event this
Agreement is terminated pursuant to this Section or any other provision of law, all rights of
OWNER under this Agreement shall terminate; provided, however, all rights of OWNER under
any other Development Approval, the Existing Land Use Regulations and any development
permit or approval issued or granted by any other governmental agency shall not be affected or
diminished in any way by such termination of this Agreement.
7.2 Information to Be Provided OV,`NER. CITY shall deposit in the mail to OWNER
a copy of all staff reports, exhibits and other evidence concerning Agreement performance a
minimum of ten(10)calendar days prior to any such review or action upon this Agreement by
the Director of Community Development, Planning Commission or the City Council,
73 Failure to Perforin Periodic Review, The failure of the CITY to review at least
annually OWNER's compliance with the terms and conditions of this Agreement shall not
constitute or be asserted by either party as a breach by the other party of this Agreement.
400268060 -13-
, ESTOPPEL CERTIFICATES.
Either patty may at any time, and from time to time, deliver written notice to the gather
party requesting that the ether party certify in writing that to the knowledge of the certifying
per:
(a) This Agreement is in full farce and effect and is a binding obligation of
the parties,-
(b) This Agreement has not been amended or modified and, if so amended,
identifying the amendments.
c No default in the performance of the requesting party's obligations under
this Agreement exists or, if in default,the nature and extent of any default.
A. party receiving-a request hereunder shall execute and return the certificate within
fifteen` 1 days following receipt thereof: The City Manager shall have the right to execute any
certificate requested by OWNER on behalf of CITY,
. DEFAULT AND REMEDIES.
.1 General Provisions. Subject to extensions of time by mutual consent in writing,
or as otherwise provided herein,, failure or delay by either party to perform any term or provision
of this Agreement constitutes a default under this Agreement. In the event of default under this
Agreement or any of its terms or conditions, the party alleging such default shat] give the alleged
defaulting party not less than..thirty {3 days notice in writing, specifying in detail the nature of
the alleged default and,when appropriate,the manner in which that default may be satisfactorily
cured. During any such thirty 30)day cure period, the party charged shall not be considered in
default for purposes oftermination or the institution of legal proceedings.
After proper notice and expiration of said thirty 3 day cure period without cure, or if
such cure cannot be completed within such thirty 30)day period,without commencement of
cure within such period and diligent effort to effect cure thereafter,the other party to this
Agreement, at its option, may institute legal proceedings to enforce this Agreement or give
notice of'terrnination of this Agreement.
Failure or delay in giving notice of default pursuant to this Section 9.1 shall not constitute
a waiver of any default, nor shall it change the time of default. Except as otherwise expressly
provided in this Agreement, any failure or delay by either party in asserting any of its rights o
remedies as to any default shall not operate as a waiver of any default or of any such rights or
remedies or deprive either such party of its right to institute and maintain any actions or
proceedings which it may deem necessary to protect, assert or enforce any such rights or
remedies.
9.2 Cumulative Remedies. Each of the parties hereto may pursue any remedy at law
or equity available for the breach of any provision of this Agreement, Any party may initiate any
,judicial action or proceeding to cure, correct or remedy any default,to enforce any covenant or
agreement herein, or to enjoin any threatened or attempted violation ofthis Agreement, including
without limitation actions or proceedings requesting declaratory relief, specific performance and
4o2sv -14-
relief in the nature of mandamus. All remedies shall be cumulative and not exclusive of one
another, and the exercise of any one or more of the remedies shall not constitute a waiver or
election with respect to any other available remedy. The parties acknowledge and agree that
specific performance and other non-monetary relief are appropriate remedies for the enforcement
of this Agreement and shall be available to all parties.
93 Attorneys' Fees and Costs. In any action or proceeding brought by any party to
interpret or enforce any provision of this Agreement, or otherwise arising under this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees (including reasonable in-house
counsel fees of CITY or OWNER at private rates prevailing in San Bernardino County) and all
costs, expenses and disbursements in connection with such action or proceeding, including the
cost of reasonable investigation, preparation and professional expert consultation and arbitration
fees and costs, which sums may be included in any judgment or decree entered in such action in
favor of the prevailing party.
10. MORTGAGEE PROTECTION,
The parties hereto agree that this Agreement shall not prevent or limit Cts "R, in any
manner, at OWNER'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 may require certain Agreement interpretations and modifications and agrees upon
request, from time to time.to meet with OWNER and representatives of such lenders to
negotiate in good faith any such request for interpretation or modification. CITYwill trot
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 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 the Property made in good
faith and for value.
(b) The Mortgagee of any mortgage or deed of trust encumbering the
Property, or any part thereof, which Mortgagee, 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 OWNER in the performance of OWNER'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 OWNER under the terms of this Agreement, CITY shall provide a
copy of that notice to the Mortgagee concurrently with the sending of notice of default to
OWNER, The Mortgagee shall have the right, but not the obligation, to cure, or to commence to
cure, the default during the cure period allowed OWNER under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part
thereof, pursuant to foreclosure of the mortgage or deed of trust or deed in lieu of such
foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have
an obligation or duty under this Agreement to perform any of OWNER's obligations or other
400268060 -1
affirmative covenants of OWNER hereunder, or to guarantee such performance, provided,
however, that to the extent that any covenant to be performed by OWNER is a condition
precedent to the performance of a covenant by CITY, the performance thereof shall continue to
be a condition precedent to CITY's performance hereunder,
IL MISCELLANEOUS PROVISIONS.
11,1 Recordation of ASELement. This Agreement and any amendment or cancellation
thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the
period required by Section 65868.5 of the Government Code,
11.2 Entire Ag ement. This Agreement sets forth and contains the entire
understanding and agreement of the parties, and there are no oral or written representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein. No testimony or evidence of any such representations,
understandings or covenants shall be admissible in any proceeding of any kind or nature to
interpret or determine the terms or conditions of this Agreement.
11.3 Severability. 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 and shall remain in full force and effect unless amended by mutual written
consent of the parties.
11.4 Interpretation and Goverrun S Law, This Agreement and any dispute arising
hereunder shall be governed and interpreted in accordance with the laws of the State of
California. This Agreement shall be construed as a whole according to its fair language and
common meaning to achieve the objectives and purposes of the parties hereto, and the rule of
construction to the effect that ambiguities are to be resolved against the drafting party shall not
be employed in interpreting this Agreement, all parties having been represented by counsel in the
negotiation and preparation hereof
11,5 Section Headings. All section headings and subheadings are inserted for
convenience only and shall not affect any construction or interpretation of this Agreement.
11.6 Rules of Construction. As used herein, the singular of any word includes the
plural and the masculine gender includes the feminine.
11,7 Consent, Where a consent or approval of a party is required or necessary under
this Agreement, such consent or approval shall not be unreasonably withheld.
11.8 Time of Essence. Time is of the essence in the performance of the provisions of
this Agreement as to which time is an element,
11.9 Waiver. No waiver of any provision of this Agreement shall be effective unless
in writing and signed by a representative of the party against whom enforcement of a waiver is
sought. No waiver of any right or remedy in respect of any occurrence or event shall be deemed
a waiver of any right or remedy in respect of any other occurrence or event,
400268060 -16-
11.10 No Third-Party Beneficiaries. This Agreement is made and entered into for the
sole protection and benefit of the parties and their successors and assigns. No other person shall
have any right of action based upon any provision of this Agreement.
11.1 ;, Force ljure, Neither party shall be deemed to be in default where failure or
delay in performance of any of its obligations under this Agreement is caused by floods,
earthquakes, other Acts of God,fires, wars,riots or similar hostilities, strikes and other labor
difficulties beyond the party's control, (including the party's employment force), government
regulations, court actions (such as restraining orders or injunctions), or other causes beyond the
party's control. If any such events shall occur, the time for performance by either party of any of
its obligations hereunder shall be extended by the parties for the period of time that such events
prevented such performance.
11.12 Mutual Covenants. The covenants contained herein are mutual covenants and
also constitute conditions to the concurrent or subsequent performance by the party benefited
thereby of the covenants to be performed hereunder by such benefited party..
11.1 Successors in Interest. The burdens of this Agreement shall be binding upon, and
the benefits of this Agreement shall inure to, all successors in interest and assigns of the parties
to this Agreement.
11.14 Counterparts, This Agreement maybe executed by the parties in counterparts,
which counterparts shall be construed together and have the same effect as if all of the parties
had executed the same instrument.
11.15 Project asaPrivate Undertakin . Itis 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 MY and OWNER is that of a government entity
regulating the development of private property and the owner of such property.
11.16 Further Actions and Instruments. Each of the parties shall cooperate with and
provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction oft e conditions of this
Agreement. Upon the request of either party at any time, the other party shall promptly execute,
with acknowledgment or affidavit if reasonably required, and file or record such required
instruments and writings and take any actions as may be reasonably necessary under the terms of
this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to
evidence or consummate the transactions contemplated by this Agreement,
11.1' Covenant of Good Faith and Fair Dealing. Neither party shall do anything which
shall have the effect of harming or injuring the right of the other party to receive the benefits of
this Agreement. Each party shall refrain from doing anything whichwould render its
performance under this Agreement impossible or impracticable. Each party shall do everything
which this Agreement contemplates that such party shall do to accomplish the objectives and
purposes of this Agreement.
400268060 -17-
11.18 late 'aced Project. CITY acknowledges, by executing this Agreement for the
Project as a whole, that the Project is and shall be considered a single, integrated development
project and that each component of the Project is dependent upon the completion and occupancy
of each other component, and that the viability of each component of the Project is and shall be
dependent of the completion and occupancy of each other component and the full performance of
this Agreement.
11.19 Authority to Execute.
11.19.1 CITY. By the execution hereof, CITY confirms and acknowledges
that CITY, acting through its City Council and the City Planning Commission, have complied in
full with the requirements of Section 65864 et seq. of the Government Code and the
Development Agreement Regulations for public hearing and the giving of notice of intention to
consider adoption of this Agreement, and that this Agreement has been approved by ordinance as
required by Section 65867.5 of the Government Code, CITY warrants and represents that the
CITY has given all notices, held all hearings and complied with all other legal requirements and
procedures required to make this a valid Agreement.
11.19.2 OWNER, Persons executing this Agreement on behalf of OWNER
warrant and represent that they have the authority to execute this Agreement and represent that
they have the authority to bind OWNER to the performance of its obligations hereunder.
11.20 Indemnification, If any claim, action, or proceeding is filed against the City or its
agents, officers or employees to attack:,' set aside, void, or annul, the approval by the City of this
Agreement, Owner shall defend (with attorneys selected and directed by Owner), indemnify and
Mild harmless City and its agents, officers and employees. City shall promptly notify Owner of
any such claim, action or proceeding, and shall cooperate fully in the defense. If City fails to
promptly notify Owner of such claim, action or proceeding, or if City fails to cooperate fully in
the defense, Owner shall not thereafter be responsible to defend, indemnify or hold'harmless
City. Nothing contained in this Section prohibits City from participating in the defense of any
such claim, action or proceeding provided the City bears its own attorneys' fees and costs and
defends in good faith. Owner shall not be required to pay or perform any settlement of any such
claim, action or proceeding unless the settlement is approved by Owner.
400268060 -18-
IN WITNESS WISEOF, the panties hereto have executed this Agreement on the day
and year set forth below.
CITY:
CITY OF REDLANDS,
a municipal corporation
Dated: October 17,_ 2000 B :
Mayor
ATTEST
-
By..
CITY LE
CI I"'OF TELA_ S
APPROVED AS TO
FORM.-
/A__
City Attorney
OWNER:
MOUNTAINVIEW POWER COMPANY,
LLC, a Delaware limited liability company
Dated- By; THERMO ECOTEK CORPORATION,
a Delaware corporation,
Its Sole Member
B : -144 t4
Name: Ftp C, � .
Its: p
ALL-PURPOSE AC:I�.t'`wOWL GINI NT
STATE OF CALIFORNIA
COUNTY OF SAN BERNARDINO } SS
CITE OF PEDLA DS
By the authority granted under Chapter 4, Article 3, Section 1181, of the California Civil Code,
and Chapter 2, Division 3, Section 40814, of the California Government Code, on October 17,
€0, before me, Beatrice Sanchez; Deputy City Clem, on behalf ofL rrie Poyzer, City Clerk of`
the City of Redlands,, California, personally appeared Pat Gilbreath and Lorne Poyzer
personally known to me - or � ,t proved to me on the basis of satisfactory evidence to
e the persons whose names) are subscribed to the within instrument and acknowledged to me that
they executed the same in their authorized capacities and that by their signatures on the instrument
the persons, or the entity upon behalf of which the persons acted, executed the instrument.
WITNESS my hand and official seal.
R
*,.,.. ..,
LIE E PO l E , CITY CLERK
del. .c ti:
* 8$ ZZ
By;
%,, ^`""•... .. *'' Beatrice Sanchez, Deputy City Cler.-
4 �t}Ftp P 4 (909)798-7531
CAPACITY CLAIMED BY SIGNER(S)
Individual(s) signing for oneselflthernselve
Corporate Officer(s)
Title(s)
Company
Partner( )
Partnership
Attorney-In-Fact,
Principal(s)
Trustee(s)
Trust
Other
Title(s): Mayor and. City Clerk
Entity Represented; City of Redlands, California
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT DESCRIBED IBED BEL W-
Titl or Type of Document- Development Agreement with Mountainview Power LLC'
Irate of Document: October 17, 2000
Signer(s) Cather Than Named,Above: Floyd M. Gent, Vice President
STATE OF CALIFORNIA � -OPTIONAL SECTION-
ss CAPACITY CLAIMED BY SICatiER
COON O .rl ' d=1;�h i 6 a lary` lthou la statute does not require the Notary to till in the
data below..doing so may prove invaluable to persons
on , , rt�
relying on the document.
�� lbefore me,
a Notary Public in and for the 0 INDIVIDUAL
State of California,'personally appeared
JYi CORPORATE 0 MCER(S)
personally known to me-OR—
proved to me on the basis of satisfactory evidence to be Title(s)
the person(l whose name(j)is/am subscribed to the within
instrument-and acknowledged to me that he/#1WWexecuted
the Nvahin instrument in hisAXAM authorized capacity )and Title(s)
that,by hisiUVOW signature.(*)on the within instrument,the
person or entity upon behalf of which heAwow acted executed
the within instrument 0 PARTNER(S L TED
WITNESS mew hand and official seal. 0 GENERAL
13AT r RI`EY-II I-FACT
Cl TRUSTEE(S)
13 GU/CONSERVATOR
OTHER:
Notary Public In aAd For
Said County and
Ell i H8 IIA eft rlITAW,, SIGNER IS REPRESENTING.
� 0 .,,rm 1 12226122 DIANE OF PERSON(S)OR EN (IES)
VU
Zan vnald�
It"Dm .
t
i
4002 806
September 11, 2000 EXHIBIT A
Prge 1 of 6
MOUNTAIN VIEW POWER COMPANY, LLC
DEVELOPMENT AGREEMENT WITH THE CITY OF RED LANDS
PARCEL A- MOUNTAIN VIEW POWER COMPANY PROPERTY
Parcel 2 of Parcel Map No. 15049 on file in Book 183 of Parcel Maps, Pages 68 and 69 thereof,
Records of San Bernardino County, Ca., described as follows:
BEGINNING at the Southeast comer of said Parcel 2;
Thence along the Easterly, Northerly, Westerly and Southerly lines of Parcel 2 the following
twenty-five (25) courses:
1) N.00-09'30V., a distance of 251.69 feet,
2) Thence S.89"50'30"W., a distance of 8.00 feet,
3) Thence N.00009'30"W., a distance of 28-70 feet;
4) Thence 4.89"50'30"W., a distance of 20.50 feet;
5) Thence N.00100'17"W,, a distance of 361.00 feet;
6) Thence N.00115'16V., a distance of 345.73 feet;
7) Thence N.89c45'05"E., a distance of 331.52 feet;
8) Thence N.0013021 8V., a distance of 746.83 feet-,
9) Thence 5.69055'17"W., a distance of 413.26 feet-,
10)Thence N.88°83°11 , a distance of 24.16 feet,
11)Thence S.00'001'24"E., a distance of 414.31 feet;
12)Thence S.89055'32"W., a distance of 214.14 feet;
13)Thence Northwesterly along a curve concave Northeasterly, having a radius of 31,50 feet,
through an angle of 90"00'00", an arc length of 49,48 feet;
14)Thence N.00004'28W., a distance of 135.76 feet,-
15)Thence S.8905522"W., a distance of 144.94 feet;
16)Thence S.00000'07"1J ,, a distance of 190.49 feet;
17)Thence N-89050'34"E., a distance of 24.29 feet;
18)Thence Southeasterly along a curve concave Southwesterly, having a radius of 80.00 feet,
through an angle of 90008'52", an arc length of 125.87 feet-,
19)Thence S.00"00'34"E., a distance of 357,02 feet;
20)Thence N.89"33'43V., a distance of 35.30 feet;
21)Thence S.00"26'17"W., a distance of 68.84 feet-, C-7
22)Thence S.85"14'37"E., a distance of 41,20 feet,
Mountain View Power Company
Development agreement with the City of Redlands
Mountain View Power Company Property EXHIBIT
Fuge 2 of 2 bags
2 )Thence a.00°05"1 'E., a distance of 257.94 feet,
24)Thence Southeasterly along a curve concave Northeasterly, having a radius of 469.50 feet;
through an angle of 55°02°44", an arc length of 459.25 feet;
25)Thence N. 9° 7'15" ., a distance of 184.72 feet, to the POINT OF BEGINNING.
The above described parcel of land contains 16.24 acres„ more or less.
ID SAND S�
Prepared undthe supervision of.
4, DANIEL J.
KIPPER
Daniel J. hipper, VLSL4628 late
hCT Consultants, Inc. No.4M9 NT
, i '
K'Vien�M 3 Thermal Ecotek\Legal Deskl083 1 DevAgreement oi.tloc
September, 112000 EXHIBIT
Revised January 27, 2000 Page 3 of 6
MOUNTAIN VIEW POWER COMPANY, LLC
DEVELOPMENT AGREEMENT WITH THE CIT` OF REDLANDS
PARCEL B -SOUTHERN CALIFORNIA EDISON SURPLUS PROPERTY
That portion of Parcel 1 of Parcel Map No. 15049 on file in Book 183 of Parcel Maps, Pees 68`
and 69 thereof, Records of Bari Bernardino County, Ca.,, described as follovws>
COMMENCING at the Southeast corner of Parcel 2 of said Parcel Map No.. 15649;
Thence along the Easterly line of said Parcel 2 the following eight (8) courses:
1) N.00009*30"W., a distance of 251.69 feet;
2) Thence S.89050'30"W., a distance of 8.00 feet,
3) Thence N.00109'30"W., a distance of 28.70 feet;
4) Thence S.89056'36°'W., a distance of 20.50 feet;
5) Thence N.00c'00'17"W., a distance of 361.00 feet;
6) Thence N.90015'16"W., a distance of 345.73 feet;
7) Thence N.89045'05"E., a distance of 331.52 feet,
8) Thence N.00002'18"W., a distance of 553.43 feet, to the POINT OF BEGINNING;
Thence continuing along the Easterly, Northerly, and Westerly lines of said Parcel 2 the following
seventeen 1'7) courses.-
1)
ourses;1) N.00-0218'W , a distance of 193.40 feet,
2) Thence S_69155'17 ., a distance of 413.26 feet;
3) Thence N.880531°I*W., a distance of 24.16 feet;
4) Thence S.66°01'24" ., a distance of 414.31 feet;
5) Thence S.89055'32'W., a distance of 214.14 feet;
6) Thence Northwesterly along a curve concave Northeasterly, having a radius of 31.50 feet,
through an angle of 90000'00", an arc length of 49.48 feet (the initial radial line bears
S.18010'58,'E.)
) Thence N.00"04'28"W., a distance of 135.76 feet,
8) Thence S.89065'22"L" ., a distance of 144.94 feet;
9) Thence S,00"00'07W., a distance of 190.49 feet;
16)Thence N.89051'34"E., a distance of 24.29 feet,
11)Thence Southeasterly along a curve concave Southwesterly, having a radius of 86.66 feet,
through an angle of 91V08'52", an arc length of 125.67 feet,-
12)
eet;1 )Thence S.00"00'34"E., a distance of 357,,02 feet,
g
13)Thence X1.89133'43"W., a distance of 35.39 feet, _..w.
Mountain View Power Company
Development Agreement with the City of Redlands EXHIBIT
Southern California Edison Surplus Property Page `t of
Page 2 of
14)Thence 5.001261 7'1 ., a distance of 68.84 feet;
16)Thence S.85014'37"E., a distance of 41.20 feet;
16)Thence S.000061 YE., a distance of 257.94 feet,
17)Thence Southeasterly along a curve concave Northeasterly, having a radius of 469.50 feet,
through�s�� y�yrgy���angle of56'02'44", aro aro length of 469.26 feet(the initial radial line bears
S...68`04'00"W.:)
Thence along the Southerly, 'Westerly*, Northerly and Easterly Imes of.said Parcel 'I the following
seven 7) courses;
1) S 891157'15"W, a distance of 773.82 feet;
'then 1.00,1 '0 " +1., a distance of 1888.87 feet;
3) Thence Northeasterly along a non-tangent curve concave Northwesterly, having a radius of
3740.13 feet, through an angle of 16°40'16'°, an arc length of 1022.86 feet (the initial radial
line bears S.18010'88"E.);
4) Thence N.66008'52"Ea, a distance of 109.28 feet;
6) Thence<S.66°21'00"E., a distance of 219.32 feet-,
6) Thence N.76012`0 "E,, a distance of 396.64 feet;
) Thence S.00002'00"E., a distance of 1008.42 feet,
Thence N.89047'10"W.,-a distance of 616.30 feet, to the POINT OF BEGINNING,
EXCEPTING THEREFROM the San Bernardino Malley Traction Company Right of Way
described in Deed Boob 388, Page 237, Records of San Bernardino County, California, as shown by
said Parcel Map No. 16049.
The above described parcel of land contains 38.12 acres, more or lees-.
Pre ared under t e supervision df
DANIFe.1 01
. I ' M .
Daniel J. Kipp LS 4628 Dat 7C �
IGT Consultants, Inc. N
c:
7 _.�_
September, 112000 EXHIBIT A
Revised January 27, 2000 Pace
MOUNTAIN VIEW POWER COMPANY, LLC
DEVELOPMENT AGREEMENT WITH THE CITY OF REDLANDS
MOUNTAIN VIEW POWER COMPANY PROPERTY
TOGETHER WITH SOUTHERN CALIFORNIA EDISON SURPLUS PROPMERTY
Parcel 2 and a portion of Parcel 1 of Parcel flap No. 15449 on file in Boob 183 of Parcel Maps;
Pages 55 and 59 thereof; Records of San Bernardino County, Ca., described as follows:
BEGINNING at the Southeast gamer of said Parol 2
Thence along the Easterly line of Parcel 2 the following 8 courses
1) N.00-09'30"WW.. a distance of 251.59 feet;
2) "Thence S.89050'30"W., a distance of 3.00 feet;:
3) Thence N.000 D9'30"VW., a distance of 28.70 feet;:
4) Thence S.89050'30"W., a distance of 24.50 feet;
5) Thence N.00c,0017"W., a distance of 36 1.00 feet;
6) Thence N.0001 '16' W., a distance of 345.73 feet,-
7)
eet;7) Thence N.89045'05"E., a distance of 331.52 feet;
8) Thence N.00-0218-W., a distance of 553.43 feet;
Thence N.89"59'03"E., a distance of 515.31 feet; to the Easterly lineof said Parcel 1,;
Thence along the Easterly, Northerly, Westerly and Southerly line of said Parcel 1 the following
seven 7) courses:
1) M" .00"02'00"WW., a distance of 557.37 feet,
2) Thence S.76012'00"WW., a distance of 395.04 feet;
3) Thence N.551'21"0 "WW., a distance of 219.32 feet-,
) Thence .58008'52'W., a distance of 109.28 feet;..
5) Thence Southwesterly along a curve concave Northwesterly, having a radius of 3740.13 feet;
through and angle of 15040'10", an are length of 1022.85 feet:
8) Thence .00002'00"E., a distance of 1868.87 feet
I
Mountain View Power Company EXHIBIT
Development Agreement with the Cite of Redlands Page 6 of
Mountain View ewer Ccs:!BCF Surplus property
Rage 2 of 2
7) Thence N+89157'1 a"E., a distance of 773.82 feet, to the POINT OF BEGINNING.
EXCEPTING THEREFROM the San Bernardino Valley Traction Company fight of Way
described in Deed Book 388, Page 237, Records of Bah Bernardino County, California, as shown b
said Parcel Map No. 15049.
The above described parcel of land contains 84.36 acres, more or leas.
"D 8
Prepared under the supervision of:
k
.}. A
Daniel J. Kipper 628 Chat
CT Consultan , Inc. (P NM 4625
FO
a
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GOentskl083 Thermal Ecotek\Legal C t10 3-01 Dev Agreement 02,doc
u"EVELOPMENT AGREEMENT MAP
OF PARCEL 2 AND A PORTION OF PARCEL I OF PARCEL-MAP 15049, AS SHOWN BY MAP ON FILE
IN BOOK 183, PAGES 68 AND 69, OF PARCEL MAPS, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA;
14
O' / APPMAW v\ S'76'17'00,*
04,
MOUNTAIN MEW BOWER COMPANY,, LLC
25770 SAN BERNARDINO .AVENUE
SAN BERNARDINO, CALIFORNIA 92408 t3,
PHONE (909) 478-79 ?, 314x,10 d
FAX: {909) 478-7910 ko 66
APN: 0292-231-01 � 4y
SURPLUS PROM f 1 �
SOUTHERN CALIF IA EDISON PARCEL
2244 wALNUT GROVE AVENUE :5 N.89'59'081E
ROSEMEA , CALIFORNIA 91770 3$:12 Acres 51 .31'
PHONE: 626) 302-4508
FAX: X26) 382-2517
APN: 0292-021-20 (portion of)
o 4 y
Itko 3'C4
1
J31.52' I
(not a part)
CNI
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200 40000 0 N PA CEL.
C4 z-� 2 s8.5 3n*Ir 254% Ac
SCALE 1 INCH 400 FEET je L a � 07 50'
Not A
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251.69'
` N,8 T'15 EE1"73.82
PALACM AVEXCISAN BERNARDINO AVEWE
WE
BOUNDARY INFORMATION SHOWN HEREON
u IS RECORD DATA AND DOES NOT REFLECT
EXHIBIT $ AN OFFICIAL SURVEY OF THE PROPERTY.
LUWWA
INTERSTATE 10„
e
KCT`CONSULTANTS, INC.
-MCINITY MAP
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9Jfnw AI.. TIId.RMil46t.Gl mQ�Cti
hau��c iC4�/4AWDFrC 10M?/-�ifd M! Gaw
EXISTING LAND USE REGULATIONS
(1) City of Redlands General Pian as amended through the Effective Date.
(2) City of Redlands Municipal Cade as amended through the Effective Date.
400268060 EXHIBIT C
i