a designated trailhead as legally defined, the technical provisions in the proposed regulations are not legally applicable.
e) Under the Title 24 of the California Building Code, § 11 B-246.7, only partial use by wheelchair occupants is required.
f) Thus, where the primary use of the access pathways is for heavy equipment, but the trails are generally accessible to wheelchair users, sufficient accessibility is provided as constructed.
g) The Public Works Director has discretion to approve minor deviations, as constructed, especially where the required change would constitute an "undue burden". Chino Muni. Code §19.01 .120. (Anthony v. Snider (2004) 116 Cal.App.4th 643). An "undue burden" can be found in instances where existing large electrical boxes, traffic signals and related infrastructure are impractical to relocate, or where setbacks or other physical limitations impede exact compliance.
Section-3 - The Disputes
DD. As a result of these differing interpretation of the applicable standards and law, the City has: a) not finally accepted certain improvements constructed by the Master Developer or the Developer, b) declined to exonerate the various construction and improvement bonds and letters of credit ("Bonds") provided for Master Developer's or Developer's Parcels, c) declined to disburse funds due to the Master Developer or Developer pursuant to Development Impact Fee Reimbursement Agreements, EWTF Agreements, Traffic Signal Interconnect Agreements, Construction Credit and Reimbursement Agreements, CFO 2005-1 and other retention payments associated with the Master Developer's or Developer's Parcels ("Disbursements"); d) declined to reconvey various deeds of trust and/or other documents securing Master Developer's or Developer's performance ("Reconveyances") and e) declined to accept improvements on and the public trail easement for the SCE Easement Trails, which resulted in the Parties anticipating the need for litigation regarding improvements on Master Developer's, Developer's Parcels and the SCE Easement Trails (the "Disputes").
EE. The Parties have engaged in extensive meetings and negotiations concerning the Disputes and, as a result thereof, now desire to resolve all of the issues encompassed in the Disputes and enter into this Agreement, to Fl NALLY, FULLY, COMPREHENSIVELY AND CONCLUSIVELY resolve the Dispute as well as all underlying and related contentions and allegations by the Parties, by and through this Agreement.
FF. The Parties understand that this Agreement is subject to the approval of the City Council.
GG. After the Effective Date, Master Developer and Developer will proceed to follow the City's process for final acceptance of previously approved improvements as set forth herein, reduction and exoneration of bonds as applicable, and reimbursement as applicable regarding the Master Developer's Parcels and subject improvements as set forth in Exhibit D, and as further detailed in � 3(A)(iii), (iv) and (v).
7 NOW, THEREFORE, in consideration of the above Recitals, covenants and agreements therein, the Parties agree as follows:
SETTLEMENT
1. DEFINITIONS.
A. As used herein, the term "Claims" means all claims, charges, liabilities, damages, obligations, costs, expenses (including without limitation attorneys' fees), rights and causes of action of any kind, legal or equitable, whether known or unknown, anticipated or unanticipated, past, present or future, contingent or fixed, existing, claimed to exist or which may hereafter exist under the United States Constitution, the California Constitution, applicable common law, contract, tort or other federal, state, local, or municipal law or regulation, relating in any way to the facts and circumstances that give rise to the Disputes, whether said facts and circumstances occurred prior to or after the occurrence of the Disputes.
B. As used herein, the term "Agreement Date" means the date upon which this Agreement is signed by the Parties.
C. As used herein, the term "Effective Date" means the business day after this Agreement is approved by City Council.
D. As used herein, the term "SCE Easement Trails" means all related land and improvements constructed on Tract Map Nos. 16419 (Lots 4, 8, AF, Al and AL), 17057 (Lots F and J), 17058 (Lots 8 and D), 17572 (Lots Band D) and 20120 (Lot E), and related lots and letter maps.
2. REPRESENTATIONS AND WARRANTIES.
A. Each party hereby represents and warrants that:
(i) It has the power and authority to enter this Agreement. (ii) None of the Claims released hereunder have been in the past or will in the future be assigned, conveyed, or transferred in any fashion to any other person and/or entity.
3. TERMS OF SETTLEMENT.
A. City Obligations.
(i) Nothing in this Agreement is intended to or shall have the lawful effect of contracting away the City's zoning authority or any other aspect of the City's police power or any discretionary approval that rests solely with the City Council; provided, however, the City agrees it will not use its authority, power or any discretionary approval in a manner that it is inconsistent with the provisions of this Agreement. City Staff and counsel for the City have previously reviewed the terms and conditions of this Agreement and have advised the City Council as to the sum and substance of its terms, to the satisfaction of the Council. prior to any duly noticed public hearings. City Staff and 8 vii. City Council's acceptance of the improvements described above except parcels previously transferred to a homeowner's association or other private entity-shall include complete defense, indemnification and hold harmless Master Developer and/or Developer, as may be applicable based on that party's involvement in the project, in connection with any legal challenge brought by a third party, government entity or other person or entity relating to such improvements or this Agreement, with the City's legal counsel of choice.
viii. As to these Parcels, Master Developer or Developer shall maintain security as required by Government § 66499.3 for a period of twelve (12) months. Within ten (10) business days after expiration of the warranty bond period, upon presentation of a bond release form by Developer substantially in compliance with Exhibit G hereto, City shall execute such bond release to permit exoneration thereof. b) Settlement as to Category B Parcels include the following Parcels and terms:
i. All parcels for which the plans and specifications for development or encroachment permits were approved by the City from and after January 1, 2017 through December 31, 2018 (Enumerated in Exhibit D-2).
ii. ii. The Parties agree that such parcels and related improvements will be deemed accepted by Staff, as-is, who shall recommend acceptance of such improvements to the City Council, subject to the Master Developer's or Developer's payment of Agreed Remediation Costs as set forth in Exhibit H.
iii. The Parties agree that Category B parcels and related improvements will be deemed accepted and final approvals issued promptly [within twenty (20) days, except during the December holidays], following the Master Developer or Developer's submission of a completed Checklist for Acceptance of Public Improvements/Security Release (Exhibit E) and a complete set of all documents required therein. All remaining Bonds related to such parcels shall be promptly [within five business (5) days, except during the December holidays], exonerated, with warranty bonds posted as required by law. Disbursements shall be promptly made, and Reconveyances promptly recorded following the City's regular administrative process. The twenty (20)-day time limit shall not apply to the City's review and approval of as-built drawings, which deadline shall instead be one (1) year from the date of submittal after which time such drawings shall be deemed accepted. The Parties agree to work in good faith to promptly identify and make necessary changes to the as-built drawings. 10 iv. The Agreed Remediation Costs shall be deposited with the City by Master Developer or Developer within ten (10) business days after the City accepts and approves the parcels and related
improvements as set forth in (b)(ii), at which time all remaining Bonds or other security provided for such parcels shall be promptly exonerated as provided for herein. Disbursements shall be promptly made, and Reconveyances promptly recorded following the City's regular administrative process.
v. For such parcels, Master Developer or Developer shall maintain security as required by Government § 66499.3 for a period of twelve (12) months. Within ten (10) business days after expiration of the warranty bond period, upon presentation of a bond release form by Developer substantially in compliance with Exhibit G hereto, City shall execute such bond release to permit exoneration thereof.
vi. City Council's acceptance of the improvements described above shall include a complete defense, indemnification and hold harmless of Master Developer and Developer in connection with any legal challenge brought by a third party, government entity or other person or entity relating to such improvements or this Agreement, with the City's legal counsel of choice.
vii. All other agreements between the parties relating to these Parcels and any security therefore are specifically superseded by this Agreement.
c) Settlement as to Category C Parcels include the following parcels and terms:
i. All parcels on which the plans and specifications for development or encroachment permits were approved by the City after January 1, 2019, or plans submitted for approval by Developer to City before the Effective Date of this Agreement (Enumerated in Exhibit D-3). ii. The Parties agree that as to Category C Parcels approved by the City from and after January 1, 2019, and thereafter for those projects submitted to the City as of the Agreement Date, (Category C parcels) the City Staff shall approve such improvements and include them in this Agreement subject to the Master Developer's or Developer's compliance with the City's ADA Policy on Pedestrian Facilities (dated December 3, 2019).
iii. In the event a dispute arises as to the meaning or interpretation of any provision in the above-referenced policy in (c)(ii), the Parties shall meet and confer in good faith toward resolution for thirty (30) days, after which time either parry may refer the matter to counsel for resolution. Failing resolution among counsel within thirty (30) 11 iv. Project Name: SCE Easement Trails - the 8' access trails shall be installed with decomposed granite in the areas set forth on Exhibit F.
C. General Obligations of All Parties.
(i) The Parties will use their best efforts and cooperate as necessary in performing and implementing this Agreement in good faith. (ii) As to the warranty bonds required by Government Code section 66499.3 for the Category A, B and C parcels, the parties have agreed that no claims shall be made under such bonds, as all potential claims have been waived in this Agreement. If a claim of defective construction or other fact allegedly giving rise to a claim under the Warranty Bond: a) the City shall investigate such allegations and reject such claim if appropriate; b) if the City considers the allegations to have merit, the parties will meet and confer and submit the allegations to mediation, consistent with Paragraph 3(A)(ii)(c)(ix) above, before tending such claim to the surety.
4. GENERAL RELEASE.
A. General Release and Discharge of Claims by Developer. Upon the Effective Date of this Agreement, Master Developer and Developer, for themselves and all of their predecessors, successors, assigns, representatives, attorneys, employees, officers, agents and affiliates 1, do hereby fully and forever release and discharge the City, and all of its predecessors, successors, assigns, representatives, attorneys, agents, elective and appointive council members, council boards, commissions, commissioners, officers, employees, of and from any and all Disputes, Claims, demands, rights, damages, costs, litigation expenses, attorneys fees, expert fees, consultant fees, other fees, interest, lost profits and earnings, diminution in the value of the business, loss of past, current, future and subsequent business and patronage, the value of the leasehold interest, the loss of goodwill, any inverse condemnation claims, any claims for the taking of property, and any other damages, costs or expenses arising from any and all Disputes relating to Master Developer's or Developer's parcels and the SCE Easement Trails that Master Developer or Developer may have or may hereafter accrue, including without limitation, any and all known and unknown, foreseen and unforeseen claim, damage and injury, relating to, or in any way, directly or indirectly, involving or arising out of any facts or circumstances related to the Disputes.
B. General Release and Discharge of Claims by City. Upon the Effective Date of this Agreement, City, for itself and all of its predecessors, successors, assigns, representatives, attorneys, employees, officers, agents, affiliates, elective and appointive council members, council boards, commissions, and commissioners, does hereby fully and forever release and discharge the Master Developer and Developer, and all of its predecessors, successors, assigns, representatives, attorneys, agents, affiliates, officers, directors and employees, of and from any and all Disputes, claims, demands, rights, damages, costs, litigation expenses, attorneys fees, expert fees, consultant 1 Affiliates" shall mean and include, without limitation, any and all officers, directors, shareholders, members, partners, trustees, parent companies, sister companies, affiliates, subsidiaries, employers, designees, attorneys, accountants, predecessors, successors, insurers, representatives, agents, designees, authorized parties and entities and related entities and individuals of a Party under this Agreement. 13 APPROVED AS TO FORM:
K. FINNERTY LAW INC.
ATTORNEYS FOR DEVELOPER
Kathleerr^Flnnarty
Dated: November 15, 2022
CITY OF jS^INO, CITY COU^JCIL
By: llUUiL' in I. Alitunice M. Ulloa, Mayor
Dated: December 2022 ijz
ATTEST:
By:
Natalie Gonzaga, City Clerk
Dated: December .2022
APPROVED AS TO FORM:
ALESHIRE & WYNDER, LLP
COUNSEL FOR CITY OF CHINO
SIGNED IN COUNTERPART
By:
Fred Gallante, City Attorney
Dated: December , 2022
18 DocuSign Envelope ID; 2ADE49BA-F986-4B03-AD79-500689EE6563 APPROVED AS TO FORM:
K. FINNERTY LAW INC.
ATTORNEYS FOR DEVELOPER
Kathleerr^^innarty
Dated: November 15, 2022
CITY OF ©HINO, CITY COU^ICIL
By: IPMj^nlce wl. Ulloa, Mayor
Dated; December 2022
ATTEST;
By:
Natalie Gonzaga. City Clerk
Dated: December 2022
APPROVED AS TO FORM:
ALESHIRE&WYNDER. LLP
COUNSEL FOR CITY OF CHINO
DocuSlgned by:
"V' ' ■ ?DOrOCilC»B9WpS.?. ■ •'
Fred Gallante, City Attorney
Dated; December , 2022 1/24/2023
18