HomeMy WebLinkAboutOrdinances_2477_CCv0001.pdf ORDINANCE NO. 2477
AN ORDINANCE OF THE CITY OF REI LANDS APPROVING A DEVELOPMENT
AGREEMENT WITH ROBERTSON'S READY MIX
THE CITY COtNCIL OF THE CITY OF REDLANDS does ordain as follows:
Section 1. The Development Agreement dated July 17, 200 1, with Robertson's Ready Mix
(the"Development Agreement")has been reviewed by the City Council of the City of Redlands and
this City Council, and after considering the verbal and written testimony provided at a duly noticed
public hearing on the Development Agreement, determines:
I. The Development Agreement is consistent with the Redlands General Plan.
2. The Development Agreement will promote the public convenience and gencral'.velfare
of the citizens of Redlands,
Section 2. The City Council hereby adopts the findings made by the City's Planning
Commission in accordance with Redlands Municipal Code section 18.220.100 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 incorporated herein by this reference.
Section 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:
City Clerk
1:�djm'\C.)rtikOrd24771 oberist)ris
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 of July,
2001, by the following vote:
AYES: Councilmembers George, Freedman, Peppler, Haws; Mayor Gilbreath
NOES: None
ABSENT: None
ABSTAIN: None
Lorrie yzer, City r
City of Redlands
Recorded in O f 3cia Records, County o
San Bernardino, tarry Walker, Recorder
_,,RecoRhqrRequested By and Doc No . 20010365950
When Recorded Mail to: 1 . +ill' 08/13/01
Cavity Clerk 205 41288694 01 16
City of Redlands
PO Box. 300
Redlands, California 92373 3 a 7 9 �I
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This development agreement(this "Development Agreement")is made and entered
into this 17th day of July, 2001, by and between Robertson's Ready Mix, Ltd., a California
Limited Partnership (the "Developer") and the City of Redlands, a municipal corporation
organized and existing under the laws of the State of California (the "City") (and together with
the Developer referred' to as the "Parties") pursuant to the authority of Sections 65864 through
65869.5 of the California Government Mode and otherwise,
R—E!QLIA_LS
A. In order to strengthen the pudic planning process, encourage private
participation in comprehensive planning and reduce the economic costs of development, the
Legislature of the State of California enacted Sections 65864 et sef the California Gave ent
Code (the "Development ent Agreement Legislation") which authorizes the City and any person of
other legal entity having a legal or equitable interest in real property to enter into a development
agreement establishing certain development rights in the real property which is the subject of the
agreement. pursuant to the Development Agreement Legislation, the City Council of the City(the
"C"ity Council") has adopted regulations establishing procedures and requirements for the
consideration of development agreements, which are contained in Chapter 18.220 of the Redlands
Municipal Code (the "Development Agreement Regulations").
LADOC 'r0ls I
B. Developer has a legal or equitable interest in certain real property located
within the City, which is more particularly described in Exhibit "A" attached hereto and
incorporated herein by this reference (the "Property"). Developer presently conducts mining and
aggregate processing operations on the Property, and desires to enter into this Development
Agreement to more formally memorialize and extend certain of the provisions of that particular
agreement dated July 19, 2000} between Developer and the City (the "Original Agreement")
which relates to both the establishment and collection of, and also the limitations on, a business
license tax (the "Project") for mining and/or aggregate processing operations engaged in by the
Developer in the City, including on the Property. When recorded, in the Official Records of the
County Recorder's Office of San Bernardino County, California, this Development Agreement
will supersede the Original Agreement, which later agreement will then terminate and be of no
further force or effect,
C. The Parties entered into the Original Agreement as a settlement and
compromise of a dispute over proposed Ordinance No. 2441, a copy of`which is attached to the
Original Agreement as Exhibit "A" thereto. The Original Agreement temporarily resolved the
dispute between the Parties and provided for the Parties to work in good faith to enter into this
Development Agreement in order to memorialize a final settlement and compromise between the
Parties.
D. The Parties understand that Developer may seek to expand and/or modify
its mining and/or aggregate processing operations in the City in the future, including expansion
and/or modification of those operations pursuant to the land use plan currently known as
Plan "B," or otherwise, and the Parties intend that this Development Agreement will apply to and
govern any such after-acquired property in the City put to mining and/or aggregate processing
uses. Plan "B" is that certain Land Management and Habitat Conservation Plan for the Upper
Santa Ana River Wash Planning Area in southwestern San Bernardino County Californian
pursuant to which various governmental agencies and private parties are striving to coordinate and
accommodate current and anticipated activities thereat, including, without limitation, the
conservation of sensitive plant and wildlife species and the establishment of habitat preserves, the
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expansion of privately owned aggregate extraction and processing operations, and the management
of water resources, recreation opportunities, and utility and transportation corridors.
P; The Planning Commission of the City considered this Development
Agreement after a duly noticed public hearing, made written findings and recorinenddd its
adoption to the City Council.
F. The City and Developer have taken all actions mandated by, and fulfilled
all requirements set forth in, the Development Agreement Regulations. The City desires to enter
into the Development Agreement to receive the business license taxes as described herein, which
otherwise the Developer would challenge but for the protections provided by this Development
Agreement, and the City Council has reviewed and hereby approves all of the provisions of this
Development Agreement. It adopts the findings of the Planning Commission, and further finds
that this Development Agreement is in conformance with the City's General Plan and
Development Agreement Regulations, and that its implementation is in the best interest of the City
and the health, safety and welfare of its residents:
NOW. THEREFORE, in co
nsideration of the mutual covenants contained herein;
and ether good and valuable consideration, the receipt and sufficiency of whichis hereby
acknowledged, the City and the Developer agree as follows;:
A-GREEMENT
; ectiort 1 Perty. All of the Property shall be subject to and entitled to the benefits
of this Development Aggreenienta In addition, the Parties intend that any after-acquired legal or
equitable interests in real property in the 'City to be used by the Developer to conduct ruining
and/or aggregate processing operations will be subject to than Development Agreement, and City
and Developer will eater into an appropriate amendment to Exhibit "A" to reflect the same. The
Parties intend that the provisions of this Development Agreement shall constitute covenants which
shall run with the Property, and the benefits and burdens hereof shall bind and inure to all the
successors in interest and assigns of the Patties hereto.
Seg-ti—on '... Lim. The term of this Development Agreement (the "Term") shall
commence upon the effective date of the ordinance approving
g this Development Agreement the
"Effective Date")and shall continue for sixty-five(65)years, until July 1.7, 2066, unless extended
or earlier terminated as provided for in this Development Agreement.
Setion I The permitted use of the Property, the
density and intensity of use, the maximum height and size of proposed buildings, the provisions
for the reservation or dedication of land for public purposes, the provisions for public
improvements, the City's general plan, zoning ordinances and development plan and regulations,
and other terms and conditions of development applicable to the Property, are unaffected by this
Development Agreement.
—Section 4. De-t—jinitions. For purposes of this Development Agreement, the following
terms and phrases shall have the meanings indicated below:
A. "aggregate" shall mean rock, sand and gravel;
13. "Business Day" shall mean a day that is not a Saturday, Sunday or legal holiday
in California. In the event that the date for the performance of any covenant or
obligation under this Development Agreement shall fall on a Saturday, Sunday or
legal holiday in California, the date Fore performance thereof shall be extended to
the next day.
C. 11 extracting" or "extraction" shall mean the extracting, mining or excavating of
aggregate;
D. It processing" shall mean the crushing and screening of aggregate;
E "tax" shall mean any tax, fee, charge, duty, levy, or other assessment of a similar
nature, whether imposed directly or through withholding;
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F. "ton" or "tonnaae" shall mean a short ton or two thousand pounds (2000 lbs).
—Section -5. —Imposition of_License Tax. The City and Developer agree that City may
levy and collect a business license tax (the "License Tax") on aggregate extracted and/or
processed on the Property; provided, however, that the License Tax shall be applied only once
to any ton of aggregate (or portion thereof) so that no ton of aggregate (or portion thereof) is
subjected to the License Tax both when extracted within the boundaries of the City and when,
processed within the boundaries of the City, or at different times or at different locations within
the boundaries of the City,
5.1 Rate of Tax. The License Tax shall be imposed at the rate of Ten Cents
($O�10) per ton, which rate shall be adjusted annually in January of each year in accordance with
the percentage change in the Consumer Price Index for All Urban Consumers for the Los
Anizeles/Riverside/Orange County Area for All Items (the "CPI"') since the last adjustment (or,
if the CPI ever ceases to be published, in accordance with such substantially equivalent
replacement index as the Parties shall agree to),
5.1.1 The License Tax shall be subject to adjustment during the term of
this Development Agreement only in accordance with the express provisions of this Development
Agreement,
5,1.2 The License Tax shall be the only tax levied by the City during the
term of this Development Agreement against the extraction or processing of aggregate on the
Property, or against any other aspect of Developer's aggregate business, with the sole exceptions
of the sales tax that is levied against the retail sale of items generally and authorized by the laws
of the State of California and such other taxes as are either: (i) levied on all or substantially all
other businesses within the boundaries of the City generally; or (ii) of general applicability to an
entire re-ion of the City or to a major category of businesses within the City, and which does not
have the effect of singling out any of Developer's business or type of business, and if the City
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ever collects or attempts to impose any other tax on Developer in connection with the extraction
or processing of aggregate (or any other aspect of Developer's aggregate business)during the term
hereof, then in addition to all other remedies available to Developer in equity and at law for such
breach of this Development Agreement, Developer shall have the option to terminate this
Development Agreement by providing written notice to the City of such termination, it being
agreed and understood that in the event the City, during the term of this Development Agreement,
levies a tax in violation of the foregoing covenant that whether or not Developer elects to
terminate this Development Agreement, Developer will be entitled to collect damages for breach
of said covenant, which at a minit-num will be measured by the difference between the tax that
would have been paid pursuant to this Development Agreement, and the total tax actually levied
by the City upon the Developer.
5.2 Commencement and Payment. Imposition of the License Tax shall begin
on January 1, 2001, and be paid by Developer to the City on a quarterly basis, sixty (60) days
after the end of each calendar quarter, beginning on May 31, 2001.
5.3 Reporting: Each License Tax payment shall be accompanied by the
followingZ:7
information relating to aggregate extracting and processing activity during the prior
quarter.
53-1 the tonnage of aggregate both extracted and processed at the
Property:
5.3.2 the tonnage of aggregate extracted at the Property and processed
outside the boundaries of the City-
53-3 the tonnage of aggregate processed at the Property and extracted
outside the boundaries of the City;
5.3,4 the current rate of the License Tax;
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5.3,5 the tonnage of aggregate described in clauses 5.3.2 and 5 3 that
is subject to tax by any other governmental entity or agency (specifying such amounts by
governmental entity and agency), and the rate(s) of such other governmental entit 's(ies,) or
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agency,s(ies') tax(es); and
5.3.6 the amounts of any credits/offsets claimed in accordance with Section
5.4 below, and if necessary, an explanation of how the credit/offset was determined.
The Parties agree that whenever in this Development Agreement the amount of
aggregate extracted or processed is to be calculated or reported, such amounts shall be determined
at and as of the time such aggregate is sold, it being acknowledged by the Parties that this will
result in the most accurate and easily verifiable calculations and reporting.
5.4 Credits/Offs-t- The License Tax payable by Developer to the City for any
quarter shall be reduced by an amount equal to the Non-Redlands Tax Credit. The "Non-
Redlands Tax Credit" shall mean the amount of tax (with the sole exception of the sales tax that
is levied against the retail sale of items generally) paid or payable by Developer to any
governmental entity or agency other than the City (the "Non-Redlands Taxing Entities") and
attributable to aggregate extracted or aggregate processed by Developer within the boundaries of
the City during such quarter; provided, however, that the amount of such credit during any such
quarter shall not exceed the following: (i) the amount of License Tax that would be payable by
Developer to the City during such quarter if it were calculated prior to application of the Non-
Redlands Tax Credit multiplied by (ii) the fraction that has as its numerator the number of Non-
Redlands Taxing Entities imposing tax on the aggregate business of Developer that quarter, and
as its denominator one plus the number of Non-Redlands Taxing Entities imposing tax on the
aggregate business of Developer that quarter.
5.5 Reductions._ Notwithstanding anything to the contrary contained in this
Development Agreement, or in any other ordinance, law, statute, rule or regulation promulgated,
passed, or enacted by the City or its populace, the City covenants and agrees with Developer that
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Developer shall never be required to pay any License Tax at a rate per ton of aggregate extracted
or processed that is in excess of the tax on the extraction and processing of aggregate actually paid
(after taking into account all credits, rebates, offsets, and other reductions permitted in connection
with the payment of such tax) by any other entity engaged in such business within the boundaries
of the City (and the rate of License Tax payable by Developer shall automatically be reduced
hereby (to zero if necessary) to effectuate this provision); it being the intention and agreement of
the Parties that in partial consideration of Developer entering into this Agreement, Developer shall
never suffer a competitive disadvantage with any other entity that extracts or processes aggregate
within the boundaries of the City.
In connection therewith, the City further agrees to: (i) promptly advise Developer
in writing if the tax per ton on the extraction and processing of aggregate actually paid (after
taking into account all credits, rebates, offsets, and other reductions permitted in connection with
the payment of such tax) by any other entity engaged in such business within the boundaries of
the City is lower than that paid by Developer during any period; (ii) promptly return any portion
of License Tax previously paid by Developer to the City as may be necessary to effectuate the
provisions and intentions of this Section 5:5 and avoid the overpayment of such,tax by Developer;
(iii) require such reporting from and maintain such records for entities other than Developer that
are engaged in the extracting and/or processing of aggregate within the City's boundaries as may
be reasonably necessary to allow the Parties to implement this Section 5.5 (and in no event shall
the City allow lesser reporting or maintenance of records than that required of Developer or the
City pursuant to this Development Agreement); and (iv) permit independent audit of its records
by a reputable certified public accounting firm to verify the City's compliance with the provisions
of this Development Agreement, provided, however, that such firm shall first agree in writing to
hold strictly confidential any non-public information acquired in that audit.
If the provisions of Sections 5.4 and 5.5 are both applicable to the calculation of
License Tax for any period. the provisions of Section 5.4 shall be applied prior to the provisions
of Section 5.5 in calculating License Tax owing for such period.
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5e6 Covenant re Ex andel 0taerations. City acknowledges that Developer may
expand the scope of its activities within the boundaries of the City and/or modify those activities
pursuant to Plan "B" or otherwise, and the importance to Developer of having the City timely
respond to development, operational or other applications which may be presented to City for
approval. Therefore, City covenants that it shall, in good faith, timely review and respond to all
applications and inquires submitted by Developer to the City related to any such expanded
operations,
SeefJon 6, EecmA_KLe_eD_ing,—ars 4-audits. Developer shall maintain detailed weight slips
for all aggregate sold by it that is either extracted from or processed at the Property, Such
information shall be maintained for a period of three(3)years. During such three(3)year period,
the City shall be entitled to reasonable audits of the weight slips to verify the accuracy of the
License Tax paid and the other information reported to it by Developer, Any such audits shall
be conducted at the sole expense of the City; provided, however, that if any particular audit
discloses a quarterly underpayment of License Tax in excess of 7.5% of the amount finally
determined to be payable by Developer, the reasonable cost of such audit shall be borne by
Developer.
Section 7. Penalties. Failure by Developer to timely pay any License Tax due
hereunder shall cause the unpaid amount of License Tax to incur interest at the rate of ten percent
(10%) per annum: provided, however, that if such failure is finally adjudicated by a competent
court of law to be due to the fraud of Developer, then such unpaid License Tax shall be subject
to an additional penalty equal to Twenty-Five percent (25%) of the amount of the fraudulently
unpaid License Tax but in no event more than the maximum penalty permitted by law.
Section 8. Sole Recourse, Notwithstanding any other ordinance, law, statute, rule or
regulation promulgated, pissed or enacted by the City or its populace. the City agrees that the
terms of this Development Agreement shall govern, and shall provide the basis for its= sole
recourse aggainst Developer in respect of all matters relating to tax on the extraction and/or
processing of aggregate (and other aspects of the aggregate business) within the boundaries of the
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City, including the imposition of such tax and any reporting requirements, audits or penalties
relating to such tax,
,S-e-ctiOTl 9. The City and Developer each waives its
right to challenge the validity of this Development Agreement, or any of its provisions, for any
and all legal or equitable reasons that may now, or hereafter exist. In addition: (i) Developer
waives its right to challenge the imposition of the License Tax based on the provisions of
Proposition 62 (Government Code section 53720 et M.), Proposition 218 (Article ITIC of the
California Constitution), or for any other legal or equitable reason that may now, or hereafter,
exist; and (ii) the City acknowledges and agrees that it is the purpose of this Development
Agreement to bind future City Councils to the terms and obligations specified herein, and to limit
the future exercise of the City's ability to tax or similarly burden the Property (and the operations
and businesses thereat) to the degree specified herein.
Section 10, Confidentiality. All non-public information relating to Developer's
aggregate extraction, aggregate processing and other aggregate business that is provided to the
City by Developer, including, without limitation, information provided to the City in accordance
with this Development Agreement, or obtained by the City pursuant to any audit provided for by
this Development Agreement, shall be held strictly confidential by the City and shall not be used
for any purpose other than verification of Developer's performance under the terms of this
Development Agreement, The City hereby acknowledges <and agrees that any disclosure or
improper use by the City of confidential information could cause Developer substantial damages,
and also irreparable injury for which there is not an adequate remedy at law. Therefore, in the
event of any such action. Developer shall he entitled, in addition to all other remedies which it
may have hereunder or at law or in equity, to a temporary andlor permanent injunction with a
decree for specific performance of the terms hereof without being required to furnish, a bond or
other security. Jurisdiction in any action for injunctive relief shall be in a court of competent
subject matter jurisdiction in California, with venue in Riverside County.
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Moreover, if the City or any party acting on its behalf is subpoenaed or otherwise
ordered to produce any confidential information, the City shall promptly (and, prior to such
disclosure)notify Developer of such subpoena or demand whereupon Developer and the City shall
cooperate and take all reasonable acts (provided the City shall not be required to expend any of
its own funds in coruiection therewith) to exhaust the legal avenues available to maintain the
confidentiality of such confidential information, unless Developer consents to the production and
disclosure of the information, In all events, only that portion of the confidential information
specifically requested by the tribunal or party compelling such disclosure shall be provided and
no interpretation or analysis of such data shall be prepared by the City for the purpose of such
disclosure unless approved by Developer or required by law.
Section 11. Default Remedies Termination.
I I,1, Default. 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 Development Agreement constitutes a default under this Development Agreement. In the
event of default under this Development Agreement or any of its terms or conditions, the party
alleging such default shall give the alleged defaulting party not less than thirty (30) days' notice
in writing, measured from the date of certified mailing, return receipt requested, specifying in
detail the nature of the alleged default and, when appropriate, the manner in which said default
may be satisfactorily cured. During any such thirty (30) day period of curing, the party charged
shall not be considered in default for purposes of termination of this Development Agreement or
the institution of legal proceedings,
11-"42 Eailure to Cure, After proper notice and expiration of said thirty (30) day
cure period without cure, or if such cure cannot be accomplished 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 Development AP
I greement, at its option, may institute proceedings
to enforce this Development Agreement and/or give notice of termination of this Development
Agreement. Such notice of termination shall be by certified mail, return receipt requested,
1ADOCM27019251 -11-
Section 12. Referendum. In the event of the City's adoption of an ordinance approving
this Development Agreement and the subsequent filing with the City of a petition qualifying a
referendum thereof in compliance with the provisions of the California Elections Code, Developer
may within 45 days of receiving written notice from the City of the filing of such a petition (the
"Petition Notice"), either: (i) agree to pay Fifteen Thousand Dollars ($15,000) toward the
administrative and other costs incurred by the City in processing the referendum petition and
conducting an election thereon, and if the Developer so agrees, the City shall process such petition
and conduct such election in accordance with all governmental laws, rules and regulations relating
thereto (provided, however, that if such petition and election apply to any matters other than this
Development Agreement, then the City shall equitably apportion the costs of such petition and
election among all such matters); or (ii) elect not to make such a payment, and it is expressly
acknowledged and agreed that Developer's election not to make such payment shall be grounds
for termination of this Development Agreement by the City, but only if the City provides written
notice of such termination to Developer within 45 days of the City's receipt of Developer's
response to the Petition Notice.
Section 13. Annual Review. During the term of this Development Agreement, the City
shall annually review this Development Agreement in accordance with the Development
Agreement Regulations, which review shall commence with Developer's submission to the City's
Community Development Department (the "CDW) not less than thirty (30) days nor more than
sixty (60) flays prior to the first anniversary date of this Development Agreement and each
antuversary date thereafter, of a letter setting forth Developer's good faith compliance with the
terms and conditions of this Development Agreement. Because the City has been provided
sufficient audit and other rights hereunder to enable it to verify Developer's compliance with all
the terms hereof, the annual review of Developer's compliance with this Development Agreement
shall be limited to ensuring that Developer has actually paid the License Tax reported by
Developer to be owing pursuant to the terms of this Development Agreement, The actual
reasonable costs of such annual review shall be borne by Developer and paid to the City upon
demand by the City.
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If, as a result of such annual review, the City finds and determines on the basis of
substantial evidence that Developer has not actually paid the License Tax as provided in the prior
paragraph, the City may elect to terminate this Development Agreement if, after allowma the
notice and cure procedure set forth in Section 11 above, and Section 15, below, such License Tax
has not then been properly paid.
Section 14. This Development Agreement shall be
governed by and constructed in accordance with the laws of the State of California without regard
to principles of conflict of laws, If either the City or the Developer brings any suit or other
proceeding with respect to the subject matter or the enforcement of this Development Agreement
or any other document executed in connection herewith, the prevailing party (as determined by
the court, an agency, or other authority before which such suit or proceeding is brought), in
addition to such other relief as may be awardedshall be entitled to recover reasonable attorneys'
fees (including reasonable in-house counsel, fees of the City and Developer at private rates
prevailing in San Bernardino County), expenses, and costs of investigation actually incurred. The
foregoing shall include, without limitation, reasonable attorneys' fees, expenses, and costs of
investigation incurred in appellate proceedings and costs incurred in establishing the right to
indemnification.
Section 1 oeredure lubuent Laws, If any agency other than the City
imposes any law or regulation ("Law") after the Effective Date of this Development Agreement
which prevents or precludes compliance with one or more provisions, of this Development
Agreement. then the provisions of this Development Agreement shall, to the extent feasible, be
modified or suspended as may be necessary to comply with such new Law.
I Promptly after
enactment of any such new Law, the parties shall meet and confer in good faith to determine the
feasibility of any such modification or suspension based on the effect such modification or
suspension would have on the purposes and intent of this Development Agreement, In addition,
Developer and the City shall have the right to challenge the new Law preventing compliance with
the terms of this Development Agreement, and, in the event such challenge is successful. this
Development Agreement shall remain unmodified and in full force and effect. If, upon or after
LADOCS2701925 1 -13-
enactment of a new Law preventing compliance with the terms of this Development Agreement,
either the City or Developer loses a material portion of its benefits under this Development
Agreement, such party shall, have the right at any time thereafter to terminate this Development
Agreement if it so chooses, by giving written notification of such termination to the other.
Section 16.
16.1 wort an Protect
g_. ion This Development Agreement shall be superior and
senior to any lien placed upon the Property, or any portion thereof, after the date of recording this
Development Agreement, including the lien of any deed of trust or mortgage ("Mortgage").
Notwithstanding the foregoing, no breach hereof shall defeat, render invalid, diminish or impair
the lien of any Mortgage made in good faith and for value, but all of the terms and conditions
contained in this Development Agreement shall be binding upon and effective against any person,
or entity having an interest in the Property, including any deed of trust beneficiary or mortgagee
("Mortgagee") who acquires title to the Property, or any portion thereof, by foreclosure, trustee's
sale, deed in lieu of foreclosure, or otherwise.
16.2 Notice of Def—if to 'A If the City receives notice from a
Mortgagee requesting a copy of any notice of default given Developer hereunder and specifying
the address for service thereof, then the City shall deliver to such Mortgagee, concurrently with
service thereon to Developer, any notice given to Developer with respect to any claim by the City
that Developer has committed an event of default, and if the City makes a determination of
noncompliance hereunder. the City shall likewise serve notice of such noncompliance on such
Mortgagee concurrently with service thereof on Developer. Each Mortgagee shall have the right
to cure or remedy, or to commence to cure or remedy, the event of default claimed, or the areas
of noncompliance set forth in the City's notice, for a period of thirty (30) days from and after the
Developer's cure period has expired.
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Section 17. Transfers and--,Assignments.
17.1 Rieht to Assign. Developer r shalt have the 'unlimited right to sell, assign;
or transfer this Development pment Agreement and all of its rights, duties and obligations hereunder,
to one or more persons or entities at any time or times during the Terra of this Development
Agreement; provided, however, that in no event shall the rights, duties and obligations conferred
upon Developer pursuant to this Development Agreement be at any time so transferred or assigned
except in connection with a transfer of Developer's interest in the Property or portion thereof.
Each successive purchaser, assignee, or transferee will also have the unlimited right to sell,
assign, or transfer this Development Agreement, and all :of its rights, duties and obligations
thereunder in connection with a transfer of such parties' interest in the Property or portion
thereof.
17.2 Release Upon Transfer. Upon the sale, transfer or assignment of any
portion of the Property or an interest therein, Developer shall be released from its obligations
under this Development Agreement with respect to the Propertyor portion thereof or interest
therein to the extent so transferred and to the extent arising subsequent to the effective date of
such transfer (i) if Developer is not thea in default under this Development Agreement,
(ii) Developer has provided to the City notice of such transfer, and. (iii) the transferee executes
and delivers to the City a written agreement in which (A) the name and address of the transferee
is set forth. and (B) the transferee expressly and unconditionally assumes all of the obligations of
Developer under this Development Agreement with respect to the Property, or portion thereof or
interest therein, transferred to the extent arising subsequent to the effective date of such transfer;
17.3 Covenants Bindin . All of the provisions, agreements, rights, powers,
standards, terms, cov=enants and obligations contained in this Development lopment Agreement shall be
binding upon the Parties and their respective successors (by merger, consolidation, or otherwise)
and assigns, and all other persons or entities acquiring;the Property, or any portion thereof, or
any interest therein, whether by operation of lave or in any manner whatsoever, and shall inure
to the benefit of the Parties and their respective successors(by merger, consolidation or otherwise)
and assigns.
Section 18. P=gLtLJ1 twat l� � neo. It is specifically understood and agreed by
the Parties that the Property subject to this Development Agreement is the private property of
Developer, that the City has no interest or responsibility for or duty to third persons concerning
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any of the improvements located thereon, and that Developer has full power over and exclusive
control of the Property. Developer hereby agrees to and shall defend, indemnify and hold the
City, and its elected officials, officers, employees and agents free and harmless from any liability
for damage for personal injury, including death, as well as from claims for property damage
which may arise from Developer's willful misconduct or negligent acts or omissions under this
Development Agreement, excepting suits and actions brought by Developer for default of this
Development Agreement or arising from the negligence or willful misconduct of the City;
Section 19. General Provisions,
19.1 Notices. Except as otherwise provided in Section IIA, above, any
communication, notice, or demand of any kind whatsoever that either party may be required or
may desire to give to or serve upon the other shall be in writing, addressed to the addresses set
forth below, and delivered by personal service, by reputable overnight delivery service., by
facsimile transmission, or by registered or certified mail, postage prepaid, return receipt
requested:
If to Developer: Robertson's Ready Mix, Ltd.
P.0, Box 33140
Riverside, California 92519
Attention: Dennis Troesh or President
Facsimile: (909) 685-9095
With a copy to-
1AJX.X,',Sk2?01925 1 46-
The Law Offices of Joseph P. Occhiuto
6830 Van Buren Boulevard
Riverside, CA 92509
If to Citv: Facsimile: (909) 685-0221
City of Redlands
35 Cajon Street
Redlands, California 92373
Attention: City Attorney
Facsimile: (909) 798-7503
Any such notice shall be deemed delivered if sent as follows. (a) if personally
delivered, on the date of delivery to the address of the person to receive such notice as evidence
by a signed receipt or notice of refusal thereof; (b) if sent by reputable overnight courier service,
on the date of delivery to the address of the person to receive such notice as evidenced by a signed
receipt or notice of refusal thereof-, (c) if sent by facsimile transmission, on the date transmitted
to the person to receive such notice if sent by 5.00 p.m., Central time, and on the next day if sent
after 5:00 pm, Central time; or (d) if mailed, on the date of delivery to the address of the person
to receive such notice as evidence by a signed receipt or notice of refusal thereof. Any notice sent
by facsimile transmission must be supplemented by personally delivering, sending by courier, or
mailing a copy of the notice sent by facsimile transmission, Any party may change its address
for notice by written notice at least ten (1 0) days before the effective date of such change in the
manner provided in this Section 1'x,1,
19.2 No Joint Venture or Paqpg�rft. The City and Developer agree that
nothing contained in this Development Agreement or in any document executed in connection with
this Development Agreement shall be construed as making the City and Developer joint venturer's
or partners.
19,3 Severability. Any provision or part of this Development Agreement which
is invalid or unenforceable in any situation or in any jurisdiction shall, as to such situation and
such jurisdiction, be ineffective only to the extent of such invalidity and shall not affect the
enforceability of the remaining provisions hereof or the validity or enforceability of any such
LADOCN27019251 -17-
provision in any other situation in any other jurisdiction, unless such invalidity- rnaterially changes
the agreements set forth herem, in which event this Development Agreement shall terminate®
19.4 Attorneys' Fees, If a dispute of any type arises, or an action is filed
relating to this Development Agreement, or this Development Agreement gives rise to any other
legal or administrative proceeding between the parties hereto, then the prevailing party shall be
entitled to recover from the losing party reasonable attorneys' fees and disbursements, including,
but not limited to, all professional fees incurred in connection with the prosecution or defense of
such action, whether or not the action is prosecuted to a final judgment. The terms "attorneys'
fees" and "disbursements" shall include, without limitation, fees and costs incurred in the
following proceedings: (i) mediations.- (ii) bankruptcy proceedings; (iii) appeals; and (iv) post-
judgment motions and collection actions. The prevailing party shall also be entitled to attorneys'
fees and disbursements after any dismissal of an action.
19,5 Authority. Each party hereto represents and warrants to the other that the
individual executing, this Development Agreement on its behalf is duly authorized to execute and
deliver this Development Agreement on its behalf. The City acknowledges that the City Council
and the Planning Commission have approved the form and substance of this Development
Agreement.
19.6 ion-Contra�Lentiorr. Each party hereto represents and warrants to the other
that the execution, delivery, and performance of this Development Agreement does not violate any,
ordinance, law, statute, rule, regulation,judgment, injunction, order, or decree, application to it.
or breach any agreement to which itis a party.
19.7 Amendment, Except as required by Sections I or 17.10, this Development
Agreement may be amended only by mutual written consent of the Parties as provided for in this
Development Agreement Legislation.
LADOCSk270192$1 -18-
19.8 No Waiver. No waiver of any of the provisions of this Development
Agreement shall be deemed or shall constitute a waiver of any other provisions, whether or not
similar, nor shall any waiver constitute a continuing waiver. Except as provided herein, no
waiver shall be binding unless executed in writing by the party making the waiver.
1venant of Good Faith - , a
and Fair Dealing. City and Developer each agree
that it shall act fairly and in good faith with the other in connection with this Development
Agreement, and for the entire Term of this Development Agreement it shall not, either directly
or through any agent. official or other person or entity take, promote, encourage, instigate or
support any action which would deprive, or which would as a natural consequence of such action
result in depriving, the other party of the benefits to which the other party is entitled pursuant to
this Development Agreement.
19.10 Time of the P--t—p. Time is of the essence with respect to all matters
contemplated by this Development Agreement.
19.11 Further- Act's. Each party, at the request of the other, shall execute,
acknowledge(if appropriate), and deliver such additional documents, and do such other additional
acts, as may be reasonably required in order to accomplish the intent and purpose of this
Development Agreement, including, but not limited to, taking all actions necessary to amend
Exhibit "A" of this Development Agreement to clarify that after-acquired property within the
boundaries of the City to be used in the mining and/or processing of aggregate is included within
the definition of "Property,"
19;12 C-ounternarm This Development Agreement maybe executed in one or
more counterparts, each of which shall constitute an original, but all of which when taken together
shall constitute one and the same instrument.
19,13 Noa Intent to Benefit Third, Parties, Except for any purchaser s)
manager(s), operatorts), subcontractor(s), lessee(s), and licensee(s) of the Property or of
LADOCS'tZ701925 1 _19-
Developer's aggregate business located at the Property, which purchasers(s), manager(s),
operator(s), subcontractor(s), lessee(s), and licensce(s) shall be entitled to all the benefits of this
Development Agreement, Developer and City do not intend by any provision of this Development
Agreement to confer any- right, remedy, or benefit upon any third party, and no other third party
shall be entitled to enforce, or otherwise shall acquire any right, remedy, or benefit by reason of,
any provision of this Development Agreement,
19.14 No Obligation to Onerate. Nothing in this Development Agreement (or
otherwise) shall obligate or be deemed to require Developer to extract or process aggregate at
the Property at any time.
19.15 Extienses of Develonment Agreement. Except as otherwise provided in this
Development Agreement, Developer and the City shall each bear its own direct and indirect
expenses incurred in connection with the negotiation and preparation of this Development
Agreement and the consummation and performance of the transactions contemplated hereby.
19.16 Entire Aereement. This Development Agreement is executed in two (2)
duplicate originals, each of which is deemed to be an original. This Development Agreement,
including the recitals and exhibits, constitutes the entire understanding and agreement of the
Pat-ties as to the matters described herein.
19.17 R_ecordation. This Development Agreement shall be recorded by the City
in the Official Records of San Bernardino County, California, Upon expiration or earlier
termination of this Development Agreement, with respect to all or any portion of the Property,
a written statement acknowledging such expiration or earlier termination, signed by the
appropriate representatives of the City and Developer, shall be recorded in the Official Records
of San Bernardino County, California, with respect to such portion of the Property.
Executed the day and year first written above.
LAF)0iC,.Sk,I70192$ 1 -20-
Attest: CITY OF REDLAND , a municipal
corporation
City C rk, City ; elands
Lor zc I oyz r t-
Mayor, City of Redlands
Pat Gilbreath
Robertson's Ready Mix, Ltd,,
a California Limited Partnership,
By Robertson's Ready Mix, Inc.,
a California Corporation,
its General Partner,
By: 2 c-2---
Dennis
- i--
Dennis Troesh, its President
LAW) 2701925 1 -21-
B
STATE ' ' r 1
ss.
COUNTY OF
Ott the,;�� day of - ; _ 200 before me,
u t
personally appeared .
personally known to tie e to be the
personNhorse name( ��mow:i e to the within instrument and acknowledged to orae
that executed the same in 4Li 0txTfthttrauthorized capacity ' and that by
fQbtrfthrimsignaturen the instrument the person( „ gar the entity upon behalf of which
the Pers a meted, executed the instrument.
INE my hand and. official seat. k� TIMOTHY RAY 'I I�IKC�IV
. .
; COMM. ##11844 '9
NOTARY PU4IUC-CALIFORNIA
RIVERSIDE COUNTY
my Comm Expires May 22„2002
i.
piy
1
ALL-PURPOSE ACKNOWLEDGMENT -
STATE DP CALIFORNIA
COUNTY TY CSF SAID BERNAI DINO SS
CITY OF I EDLANDS
By the authority granted under Chapter 4, .Article 3, Section 1151, of the California Civil Code;
and:Chapter 2, Division 3, Section 40814, of the California: Government Code, can July 31, 2001,
before me, Beatrice Sanchez, Deputy City Clerk, on behalf of Lorrie Poy er, City Clerk of the
Cite of Redlands, California, personally appeared.. Pat Gilbreath and Lorrie Poyzer
personally known to me - o - f I proved to zrae 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.
LORRIE POYZER, CITY CLERK
A 0
C)VkPOR4 r * tP
w �.
888
Beatrice Sanchez, Deputy City Clerk
-...........•
(909)798
1
IFOO
-.
CAPACITY CLAIMED BY SIGNER(S)
Individual(s) signing;for oneself/themselves
Corporate Officer(s)
Title(s)
Company
Purtner(s)
Partnership
.Attorney-In-fact
Principal(s)
Trustee(s)
Trust
x Other
Title(s): Mayor and City Clerk
Entity Represented; City of Redlands, California
THIS CERTIFICATE MUST BE ATTACHED TO THE DOCUMENT I ESCI IBET BELOW:
Title or Type of Document Development Agreement - Robertson's Ready Mix, Ltd.
Date of Document- July 17 2001
Signer(s) Other Than Named Above: Dennis Troesh, President
EXHIBIT A
A. A leasehold interest in the following described parcel:
The S 1/2 of the NW 1/4 of the SW 1/4 of Section 11 excepting a I00-foot (north-south)
by 200-foot (east-west.) parcel in the northwest comer of said parcel, and the S 1/2of the
SW 1,/4 of Section 11, and the NW 1/4 of the NW 1/4 of Section 14 excepting a I00-foot
(east-west) by 200-foot (north-south beginning 100 feet north of the southwest corner of
said parcel, and the NE 1/4 of the NW 1/4 of Section 14, excepting the southerly 173 It
of said parcel, and the NW 1/4 of the NE 1/4 of Section 14, and the SE 1/4 of the NE 1/4
of Section 14, all being part of Township I South Range 3 West, San Bernardino Base and
Meridian.
B. A leasehold interest pursuant to that certain unrecorded Lease Agreement for Mineral
Excavation entered into between Robertson's Ready Mix, Ltd., a California Limited
Partnership and San Bernardino Valley Water Conservation District,a political subdivision
of the State of California, on or about October 5, 1993, in that portion of the following
described property located in the City of Redlands:
That portion of Section, 7, Township 1-South, Range 2 West, San Bernardino Meridian,
in the County of San Bernardino, State of California, more particularly described as
follows:
Beginning at a point that is 250 feet South and 200 feet East, measured
perpendicular to the North line and West line of said Section 7, respectively;
thence South 0 degrees, 26 minutes, 6 seconds West, parallel with said West line,
3593.63 feet, to a point that is 130 feet North and 200 feet East, measured
perpendicular to the North line of the Southwest quarter of the Southwest quarter
and the West line of said section, respectively; thence South 88 degrees 37
minutes, 0 seconds East, parallel with said North line of the Southwest quarter of
the Southwest quarter, 3096.08 feet; thence North 0 degrees, 26 minutes, 6
seconds East, parallel with the West line of said section, 2748.04 feet, to a point
that is 100 feet South, measured perpendicular to the South line of the North 60
acres of the Northeast quarter of said section; thence North 87 degrees, 51
minutes, 30 seconds West, parallel with the South line of said North 60 acres,
796.33 feet; thence North 0 degrees, 26 minutes, 6 seconds East, parallel with the
West line of said section, 834.25 feet, to a point that is 250 feet South, measured
perpendicular to the North line of the Northwest quarter of said section; thence
North 88 degrees 35 minutes 48 seconds West, parallel with the North,line of said
Northwest quarter, 2300.00 feet to the point of beginning.
The above described parcel contains 240.00 acres more or less.
CkWPW1N1J,EGALN15n+x A.%,I)d