W. The terms and conditions of this Second Amended Agreement have undergone extensive review by CITY and by the City Council and have been found to be fair, just and reasonable.
It has further been determined by the City Council that the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Second Amended Agreement.
X. All procedures of the California Environmental Quality Act, Public Resources Code section 21000 et seq. (“CEQA”) have been met with respect to the Project and this Second Amended Agreement by the certification of the EIR and EIR Addendum .
Y. The City Council has determined that this Second Amended Agreement and the Project are consistent with the CITY's General Plan and the Reche Canyon Specific Plan applicable thereto.
Z. On or about ___________ , 2023, the CITY's Planning Commission, pursuant to Government Code section 65867, held a duly noticed public hearing and adopted its Resolution No. _________ recommending that the City Council of the CITY approve this Second Amended Agreement.
AA. On or about ____________, 2023, the City Council of CITY held a duly noticed public hearing and adopted Ordinance No. _________, approving this Second Amended Agreement.
BB. The City Council has determined that the development of the Property in accordance with this Second Amended Agreement will provide substantial benefits to CITY and will further
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important policies and goals of CITY. Further, this Second Amended Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, insure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under the Development Agreement Law are intended.
CC. The Parties contemplate that DEVELOPER will complete and file an application and petition with the CITY requesting the formation of a Mello-Roos Community Facilities District (“CFD”), and annexation of the project area into CFD No. 2021 -1 (Public Safety) and CFD No. 2021- 2 (Maintenance) pursuant to the provisions of Government Code section 53311 et seq. that will include the Property to provide a financing mechanism to pay for the const ruction of certain public improvements and facilities that will benefit the Property and the CITY.
DD. DEVELOPER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Second Amended Agreement, and which substantial costs are in excess of the generally app licable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Second Amended Agreement.
SECOND AMENDED AGREEMENT
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt an d sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1. Definitions. The following terms when used in this Second Amended Agreement shall be defined as follows:
1.1.1. “CFD” means a Mello -Roos Community Facilities District to be formed by CITY pursuant to the provisions of Government Code section 53311 et seq. covering the Property.
1.1.2. “CITY” means the City of Colton, a municipal corporation, organized and existing pursuant to the laws of the State of California.
1.1.3. “Development” means 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 of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.4. “Development Agreement Ordinance” means those certain development agreement rules, regulations and policies of the CITY set forth in the Development Agreement Ordinance, Municipal Code section 18.58.102.
1.1.5. “Development Approvals” means all permits and other entitlements
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for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) conditional use permits, public use permits and plot plans; (d) zoning;
(e) grading and building 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 improvements or public facilitie s, 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 Impact Fee ” a monetary exaction other than a tax or special assessment, whether established for a broad clas s of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park “in lieu ” fees specified in Government Code Section 66477, fees for processing application s for governmental regulatory actions or approvals, or fees collected under de velopment agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter
4. 1.1.8. “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.
1.1.9. “Effective Date” means the date the ordinance approving this Second Amended Agreement becomes effective.
1.1.10. “Existing Development Approvals” means all D evelopment Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the Project Approvals listed on Exhibit "B" and all other Approvals which are a matter of public record on the Effective Date.
1.1.11. “Existing Development Impact Fees” means the types and categories of Development Impact Fees duly adopted by the CITY and in effect on the Effective Date of this Second Amended Agreement.
1.1.12. “First Amended Agreement ” means that certain First Amended and Restated Development Agreement No. 1 (DAP-001-112) covering the Property adopted by the City Council by Ordinance No. O-07-13 on December 3, 2013, executed by the Parties, and recorded on June 30, 2015 as Document No. 2015-0274348, in the Official Records of San Bernardino, California and effective on December 3 , 2013.
1.1.13. “Second Amended Agreement” means this Second Amended and Restated Development Agreement.
1.1.14. “Existing Land Use Regulations” means all Land Use Regulations in
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effect on the Effective Date of this Second Amended Agreement. Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit “C” and all other Regulations which are a matter of public record on the Effective Date of this Second Amended Agreement.
1.1.15. “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, the provisions for reservation or dedication of land for public purpo ses, and the design, improv ement and construction standards and specifications applicable to the development of the property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.
1.1.16. “DEVELOPER” means the persons and entities listed as DEVELOPER on page 1 of this Second Amended Agreement and their successors in interest to all or any part of the Property.
1.1.17. “Interim Improvements ” shall mean interim improvements including roads, pipelines and utilities to be constructed and installed by CITY in association with the construction of the Reservoir.
1.1.18. “Modified Project Approvals ” means collectively (a) Planning Commission Resolution No. R-_______ adopted on ____________, 2023 certifying the EIR Addendum; (b) Modified Tract 16798 approved on __________, 2023 by Planning Commission Resolution No. R - __________.
1.1.19. “Modified Tract 16798 ” means the Modified Tentative Tract Map No. 16798 approved by the Planning Commission's adoption of Resolution No. R-______ on _________, 2022.
1.1.20. “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.
1.1.21. “Original Project Approvals” means collectively (a) Planning Commission Resolution No. R-06-06 adopted on August 8, 2006 certifying the Environmental Impact Report for the Iron Horse Hills Residential Project, Adopting findings pursuant to the California Environmental Quality Act, Adopting a Statement of Overriding Considerations and Adopting a Mitigation Monitoring Report; (b) Tentative Tract Map No. 16978 approved on August 8, 2006 by Planning Commission Resolution No. R-07-06; and (c) Ordinance No. 0-15-06 adopted by the City Council on September 5, 2006 Amending Portions of the Reche Canyon Specific Plan Land Use Map shown as an Addendum to Title 18 of the Colton Municipal Code: File Number DAP- 000-343.
1.1.22. “Original Development Agreement ” means that certain Development Agreement No. DA07-01 covering the Property adopted by the City Council by Ordinance No. O-22-
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07 on December 18, 2007, executed by the Parties, and recorded on February 27, 2008 as Document No. 2008-0085519, in the Official Records of San Bernardino, California and effective on January 17, 2008.
1.1.23. “Project” means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Second Amended Agreement.
1.1.24. “Project Approvals” means, collectively, the Original Project Approvals and the Modified Project Approvals.
1.1.25. “Property” means the real property more particularly described and shown on Exhibit “A” to this Second Amended Agreement.
1.1.26. “Reche Canyon Specific Plan Area ” means all lands and property within the CITY covered by the Reche Canyon Specific Plan and the SPA.
1.1.27. “Reservations of Authority ” means the rights and authority excepted from the assurances and rights provided to DEVELOPER under this Second Amended Agreement and reserved to CITY under Section 3.6 of this Second Amended Agreement.
1.1.28. “SPA” means the Specific Plan Amendment to the Reche Canyon Specific Plan the City Council's adoption of Ordinance No. 0-15-06 on September 5, 2006.
1.1.29. “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
1.1.30. “Subsequent Land Use Regulations ” means any Land Use Regulations adopted and effective after the Effective Date of this Second Amended Agreement.
1.1.31. “Tract 16798” means Tentative Tract Map No. 16798 approved by the Planning Commission's adoption of Resolution No. R-08-06 on August 8, 2006.
1.2. Exhibits. The following documents are attached to, and by this reference made a part of, this Second Amended Agreement:
Exhibit “A” - Legal Description and Depiction of the Property.
Exhibit “A-1” - Substantial Conformance Map
Exhibit “B” - Existing Development Approvals.
Exhibit “C” - Existing Land Use Regulations.
Exhibit “D” - Well Site.
Exhibit “E” – Intentionally Omitted.
Exhibit “F” - Neighborhood Park Improvements.
Exhibit “G” - Existing Development Impact Fees.
Exhibit “H” - Fee Credits.
Exhibit “I” - CFD Reimbursement Eligible Items.
2. GENERAL PROVISIONS .
2.1. Binding Effect of Second Amended Agreement. The Property is hereby made
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subject to this Second Amended Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Second Amended Agreement.
2.2. Ownership of Property . DEVELOPER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof.
2.3. Term. The initial term of this Second Amended Agreement shall commence on the Effective Date of this Second Amended Agreement , and shall continue for a period of ten (10) years thereafter (“Initial Ter m”) u nless such Initial Term is modified or extended pursuant to the provisions of this Second Amended Agreement. Notwithstanding the foregoing, the term of this Second Amended Agreement may be extended for an additional five (5) years following expiration of the Initial Term (“Extended Term”), provided the following have occurred:
2.3.1. DEVELOPER provides at least one hundred eighty (180) days written notice to CITY prior to the expiration of the initial term; and
2.3.2. DEVELOPER is not then in uncured default of this Second Amended
2.3.3. DEVELOPER shall have obtained building permits for at least sixty-seven percent (67%) of the single family residential units contemplated by Modified Tract 16798.
The Initial Term and, if and upon extension, the 5-year Extended Term, shall sometimes be referred to herein collectively as the “Term”.
2.4. Assignment.
2.4.1. Right to Assign. DEVELOPER shall have the right to sell, transfer or assign the Property in whole or in part (provided that such partial transfer shall comply the Subdivision Map Act, Government Code Section 66410 et seq.), to any person, partnership, joint venture, firm or corporation at any time during the Term of this Second Amended Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligat ions arising under or from this Second Amended Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Second Amended Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, DEVELOPER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement (“Assignment Agreement ”), in a form reasonabl y acceptable to CITY, by the purchaser, transferee or assignee an d providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of DEVELOPER under this Second Amended Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the Assignment Agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of th is Second Amended Agreement shall be binding upon such purchaser, transferee or assignee, but the
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benefits of this Second Amended Agreement shall not inure to such purchaser, transferee or assignee until and unless such Second Amended Agreement is executed.
2.4.2. Release of Transferring Owner . Notwithstanding any sale, transfer or assignment, a transferring DEVELOPER shall continue to be obligated under this Second Amended Agreement unless such transferring DEVELOPER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring DEVELOPER of the following conditions:
(a) DEVELOPER has provided CITY with the notice and executed an Assignment Agreement required under Paragraph (b) of Subsection 2.4.1, above.
(b) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by DEVELOPER to secure performance of its obligations hereunder.
2.4.3. Subsequent Assignment . Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.
2.4.4. Termination of Second Amended Agreement With Respect to Individual Lot Upon Sale to Public. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public . Notwithstanding any other provisions of this Second Amended Agreement, this Second Amended Agreement shall terminate with respect to an y lot and such lot shall be released and no longer be subject to this Second Amended Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A Certificate of Occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Second Amended Agreement have been paid.
2.5. Amendment or Cancellation of Second Amended Agreement . This Second Amended Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and Article 5 of the Development Agreement Policies. This provision shall not limit any remedy of CITY or DEVELOPER as provided by this Second Amended Agreement.
2.6. Termination. This Second Amended Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
2.6.1. Expiration of the stated term of this Second Amended Agreement as set forth in Section 2.3.
2.6.2. Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Second Amended Agreement.
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2.6.3. The adoption of a referendum measure overriding or repealing the ordinance approving this Second Amended Agreement.
2.6.4. Completion of the Project in accordance with the terms of this Second Amended Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.
2.6.5. Termination of this Second Amended Agreement based on any default of DEVELOPER and following the termination proceedings required by Articles 7 and 8 of the Development Agreement Policies.
Termination of this Second Amended Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Second Amended Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Second Amended Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Second Amended Agreement. Upon such termination, any public facilities and services mitigation fees or other impact fees paid pursuant to Section 4 of this Second Amended Agreement by DEVELOPER to CITY for residential units on which construction has not yet begun shall be refunded to DEVELOPER by CITY.
2.7. Notices.
2.7.1. As used in this Second Amended Agreement, “notice” includes, but is not limited to, the communication of notice, reque st, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder.
2.7.2. 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 envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:
If to CITY: City of Colton
650 North La Cadena Drive
Colton, CA 92324
Attn: Development Services Director
Telephone: (909) 370-5079
e-mail: [email protected]
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with a copy to: Best, Best & Krieger, LLP
3750 University Ave.
San Bernardino, CA 92501
Attn: Seth Merewitz
Telephone: (213) 787-2567
e-mail: [email protected]
If to DEVELOPER: Iron Horse Hills LLC
701 N. 44th Street
Phoenix, AZ 85008
Attn: Patrick E. Sovereign
Telephone: (480) 429-3021
Facsimile: (480) 429-3100
e-mail: [email protected]
with a copy to: Beus Gilbert McGroder PLLC
701 N. 44th Street
Phoenix, AZ 85008
Attn: Megan Beus
Telephone: (480) 429-3024
Facsimile: (480) 429-3100
e-mail: [email protected]
2.7.3. 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. DEVELOPMENT OF THE PROPERTY.
3.1. Vested Right to Develop . Subject to the terms of this Second Amended Agreement including the Reservations of Authority, DEVELOPER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Second Amended Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.
3.2. Effect of Second Amended Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Second Amended Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise its discretion in accordance with the Development Plan and as provided by this Second Amended Agreement including, but not limited to, the Subsequent Land Use Regulations set forth as Reservations of Authority set forth in Section 3.6, below, but otherwise the development of the Property shall not be subject to any other Subsequent Land Use Regulations, whether adopted by action of the City Council or by initiative which conflicts with the
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ability of the DEVELOPER to construct the Project in accordance with the Development Plan. CITY shall accept for processing, review and action all applications for Subsequent Development Appro vals, and such applications shall be processed in the normal manner for processing such matters.
3.3. Timing of Development . The parties acknowledge that DEVELOPER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerou s factors which are not within the control of DEVELOPER, such as market orientation and demand, interest rates, absorption, completion and othe r similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 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 defici ency by acknowledging and providing that DEVELOPER shall have the right to develop the Property in such order and at such rate and at such times as DEVELOPER deems appropriate within the exercise of its subjective business judgment, subject only to any timin g or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4.
3.4. Phasing Plan . Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan.
3.5. Changes and Amendments . The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event DEVELOPER finds that a change in the Existing Development Appro vals is necessary or appropriate, DEVELOPER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Second Amended Agreement including the Reservations of Authority . If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibits “B” and “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY's reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Second Amended Agreement provided such change does not contemplate any of the following :
3.5.1. Alter the permitted uses of the Property as a whole; or,
3.5.2. Increase the density or intensity of use of the Property as a whole; or,
3.5.3. Increase the maximum height and size of permitted buildings; or,
3.5.4. Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
3.5.5. Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.5.6. Revise internal circulation network, including points of access.
3.6. Reservations of Authority.
3.6.1. Limitations, Reservations and Exceptions . Notwithstanding any
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other provision of this Second Amended Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Processing fees and charges of every kind and nature imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports , recommendations, appeals and any other matter of procedure.
(c) Regulations governing construction standards and specifications including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
(d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part , as the fees set forth in Section 4 of this Second Amended Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Second Amended Agreement to the extent such fees fulfill the same purposes.
(e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide DEVELOPER with the rights and assurances provided under this Second Amended Agreement.
(f) Regulations which are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property.
(g) Regulations which are in conflict with the Development Plan provided DEVELOPER has given written consent to the application of such regulations to development of the Property.
3.6.2. Subsequent Development Approvals . This Second Amended Agreement shall not prevent CITY, in acting on Subsequent Development Approvals , from applying Subsequent Land Use Regulations which do not conflict with the Development Plan, nor shall this Second Amended Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.6.3. Modification or Suspension by State or Federal Law . In the event that State or Federal laws or regulations, enacted after the Effective Date of this Second Amended
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Agreement, prevent or preclude compliance with one or more of the provisions of this Second Amended Agreement, such provisions of this Second Amended Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Second Amended Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
3.6.4. Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Second Amended Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.
3.7. Public Works . If DEVELOPER is required by this Second Amended Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and is required by applicable laws to do so, DEVELOPER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction.
3.8. Project as a Private Undertaking . It is specifically understood and agreed by and between the Parties hereto that with the exception of the public works and improvements that may be constructed or installed under contract and “paid for in whole or in part from public funds ” as defined in Labor Code section 1720(b), the development of the Project is a private and not a public sector 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 Second Amended Agreement. No partnership, joint venture or other association of any kind is formed by this Second Amended Agreement. The only relationship between CITY and DEVELOPER is that of a government entity regulating the development of private property by the owner of such property. Other than public improvements to be constructed pursuant to or financed by a Mello-Roos Community Facilities District as further provided herein, CITY and DEVELOPER do not intend for the terms of this Second Amended Agreement to in any manner make construction of improvements connected with the private residential in-tract improvement and construction components of the Project within the Property to be subject to the provisions of the Prevailing Wage Statutes (Labor Code section 1720 et seq.). If DEVELOPER believes in good faith that the California Prevailing Wage Statutes do not apply to particular development activities occurring on or with respect to the Property , as applicable, CITY agrees to provide reasonable cooperation and assistance to DEVELOPER in that regard, provided that such assistance shall be at no cost to CITY and the ultimate responsibility and risk for complying with applicable Governmental Requirements with respect to the Prevailing Wage Statutes shall remain with DEVELOPER, not CITY.
3.9. Provision of Real Property Interests by CITY . In any instance where DEVELOPER is required to construct any public improvement on land not owned by DEVELOPER, DEVELOPER shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements. In the event DEVELOPER is unable, after exercising reasonable efforts, including , but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by DEVELOPE R and upon DEVELOPER's provision of adequate security for costs CITY may reasonably incur, CITY shall negotiate the purcha se of the necessary real propert y interests to allow DEVELOPER to construct the public improvements as required by this Second Amended Agreement and, if nece ssary, in accordance with the procedures
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established by law, including but not limited to Government Code section 66462.5, use its power of eminent domain to acquire such required real property intere sts. DEVELOPER shall pay all costs associated with such acquisition or condemnation proceedings. This Section 3.8 is not intended by the parties to impose upon the DEVELOPER an enforceable duty to acquire land or construct any public improvements on land not owned by DEVELOPER, except to the extent that the DEVELOPER elects to proceed with the development of the Project, and then only in accordance with valid condition s imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.
3.10. Regulation by Other Public Agencies . 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 Second Amended Agreement does not limit the authority of such other public agencies.
3.11. Tentative Tract Map Extension . The life of any tentative tract map shall automatically be extended for the term of this Second Amended Agreement pursuant to Government Code section 66452.6(a).
3.12. Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project. DEVELOPER shall contract with the CITY for CITY -owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties.
4. PUBLIC BENEFITS.
4.1. Intent. The parties acknowledge and agree that de velopment of the Property will result in substantial public needs which may not be fully met b y the Development Plan and further acknowledge and agree that this Second Amended Agreement confers substantial private benefits on DEVELOPER which should be balanced by commensurate public benefits.
Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on DEVELOPER by providing more fully for the satisfaction of the public needs resulting from the Project as well as also providing additional public benefits not necessitated by the Project.
4.2. Determination and Design of Offsite Street Improvements. DEVELOPER, pursuant to a condition of approval for Modified Tract 16798, is required to construct certain offsite street improvements (“Offsite Street Improvements ”). Although the exact nature and extent of such Offsite Street Improvements has not been finally determined by CITY, such Offsite Street Improvements potentially include, but are not limited to the widening and realignment of Barton Road along the Property frontage westerly to Washington Street allowing for two lanes in each direction, or alternatively, the possible revision of traffic circulation between Center Drive and Barton Road to allow for one-way roads and a traffic signal at Center Drive, Barton Road and Walin Street. DEVELOPER shall design, construct and install the Offsite Street Improvements in accordance with improvement plans prepared or caused to be prepared by DEVELOPER and submitted to the CITY for its review and approval. The CITY acknowledges that the Offsite Street Improvements are not solely required for the development of the Property, but rather will provide benefits to other lands and the residents of the CITY. CITY shall satisfy the CITY's Reimbursement Obligation related to the Offsite Street Improvements in accordance with the provisions of Section 4.7 of this Second Amended Agreement. Notwithstanding the foregoing, CITY acknowledges and agrees that “Street A” is intended to be fully improved street and will be constructed to the location shown on
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 17 15683
Modified Tract 16798, and that an Emergency Vehicle Access road will be constructed from the termination point of “Street A” to Westwood Road (the “ EVA Road ”). DEVELOPER will only be responsible for constructing the EVA Road to CITY’s standards for an unimproved, graded road .
4.3. Well Site. Following recordation of the final map , DEVELOPER shall convey to CITY approximately 0.5 acres of the Property designated as Lot L of Modified Tract 16978 as described and shown on Exhibit “D” for the purpose of a new Well Site, the new Well will be drilled and constructed by DEVELOPER with the costs to be shared by the CITY and DEVELOPER proportionally, based on the ratio of the Project’s water requirements divided by the total capacity of the Well 1, as determined by the findings and conclusions of a well site a ssessment (the “WSA”), and thereafter dedicated to the CITY as a CITY-owned well (the “Well”) to serve the entire regional Reche Canyon Specific Plan area as well as the Property (“ Well Site”). The conveyance of the Well Site by DEVELOPER to CITY shall be in accordance with the Subdivision Map Act and may be accomplished by a Lot Line Adjustment. Such conveyance of the Well Site shall also provide for grants of easements over portions of the Property to be mutually determined by CITY and DEVELOPER for access, ingress, egress, construction, pipeline and utility purposes associated with the construction, operation and maintenance of the Well. Following the conveyance of the Well Site to CITY, DEVELOPER shall design and construct the Well on the Well Site, in accordance with plans prepared or caused to be prepared by CITY and reviewed and approved by CITY. CITY and DEVELOPER shall share the cost and expense, as provided above, for designing, constructing and installing such interim improvements including, but not limited to roadway, pipeline and utilities necessary to construct, operate and maintain the Well (“Interim Improvements ”). Following the recordation of a Final Map for that portion of Modified Tract 16798 covering the Interim Improvements, DEVELOPER shall be required to construct and install permanent improvements to replace the Interim Improvements pursuant t o the provisions of conditions of approval to the Existing Development Approvals.
4.4. Neighborhood Park s. DEVELOPER shall dedicate to the CITY three neighborhood parks consisting of a total of approximately 7.1 acres as shown on the Modified Tract 16798 (“Neighborhood Parks”) located within Lot B and Lot H together with improvements as generally shown on Exhibit “F” (“Park Improvements”). The Park Improvements shall be constructed and installed by DEVELOPER in accordance with plans prepared by or caused to be prepared by DEVELOPER and submitted to CITY for its review and approval. CITY acknowledges the value of the land for the Neighborhood Parks sites is Nine Hundred Eighty-Five Thousand Dollars ($985,000.00) and that the costs for construction and installation of the Park Improvements is currently estimated to be Nine Hundred Twenty-Four Thousand Dollars ($924,000.00). Thus, the value of the land and Park Improvements exceeds the Project’s park land dedication and in-lieu fee requirement of the CITY’s Quimby Act Ordinance adopted pursuant to Government Code section 66477 (Municipal Code section
16.58.010 et seq.), which for the 184 dwelling units to be constructed on the Project is currently in the amount of One-Million Thirty -One Thousand Three -Hundred Twenty Dollars ($1,031,320) .
Therefore DEVELOPER’S construction and installation of the Park Improvements and dedication to the CITY of the Neighborhood Parks shall be deemed to be in full and complete satisfaction of the CITY’s Quimby Act ordinance, and DEVELOPER shall not be required to pay any CITY Quimby Act fees. The Park Improvement shall be completed by no later than the issuance of the sixtieth (60 th) certificate of occupancy for a residential dwelling unit constructed on the Property.
1 For illustrative purposes, if the WSA determines that the Project’s water requirements equals one -tenth of the total Well capacity, then the cost of the WSA would be allocated between the City and Developer on a 90 -10 basis; with the City paying 90% of the cost and Developer paying 10% of the cost.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 18 15683
4.5. Development Impact Fees .
4.5.1. Limitation on Types and Increases of Development Impact Fees . As they apply to the Project, the Property or the DEVELOPER, except for the DAG Fee described in Section 4.6, below, all other Development Impact Fees imposed by the CITY in connection with the Development of the Project, whether imposed in connection with map approvals , building permit issuance, certificate of occupancy issuance or any other discretionary or ministerial CITY approval as set forth in Exhibit “G” (“Existing Development Impact Fees ”), shall be payable by DEVELOPER to CITY during the Term of this Second Amended Agreement. The Existing Development Impact Fees shall be fixed for a period of five (5) years following the Effective Date of this Second Amended Agreement at the rate in effect as of the Effective Date of this Second Amended Agreement ; provided, however, that notwithstanding the foregoing clause of this sentence, the rate of the City's “Circulation Fee-Arterial, Interchange and Railroad Crossing Improvements (“SBCTA Infrastructure Fee”)” shall not be fixed for a period of five (5) years following the Effective Date of this Second Amended Agreement, but shall be subject to annual adjustment. Additionally, any new Development Impact Fees enacted by the CITY which take effect after the Effective Date of this Second Amended Agreement shall be applied to the Development of the Project or , the Property or the DEVELOPER. Moreover, nothing in this Section shall l imit the City Council’s power to increase fees which reimburse the CITY for the reasonable cost of processing Development applications or reimbursing the CITY for its reasonable costs of building inspection or plan checking (collectively, “Processing Fees”). Any such increase in any Processing Fees applicable to the Project, the Property or the DEVELOPER which is not prohibited by this Second Amended Agreement shal l only be applicable to the Project, the Property or the DEVELOPER to the extent that any such Processing Fee increase is applied by the CITY consistently and proportionately to all properties within the City in accordance with applicable law.
4.5.2. Credits. As provided in Sections 4.2 and 4.4 of this Second Amended Agreement, DEVELOPER shall be entitled to credits against the Development Impact Fees otherwise required for the dedication of land or the construction of improvements.
4.6. Development Agreement Fee . DEVELOPER shall pay to CITY, upon the issuance of each building permit for a residential dwelling unit constructed on the Project, a Development Agreement fee (“DAG Fee”) calculated as follows: an amount equal to Two Thousand Five Hundred Dollars ($2,500.00) plus fifty percent (50%) of the net proceeds from CFD Bonds actually issued for financing public improvements and facilities for the Project as further provided in Section 5 of this Second Amended Agreement in excess of Seventy-Eight Thousand Three Hundred Seven and 04/100 Dollars ($78,307.04) per residential dwelling unit. The DAG Fee shall not be paid from CFD Bond proceeds. If the CFD Bonds have not been issued at the time of the issuance of a building permit for the first (1 st) residential dwelling unit constructed on the Project, then the DAG Fee component shall be based upon the then estimated amount of net CFD Bond proceeds in excess of Seventy-Eight Thousand Three Hundred Seven and 04/100 Dollars ($78,307.04) per residential dwelling unit (“Estimated DAG Fee”). If at the time that the definitive amount of net CFD Bond proceeds is establish ed, the actual DAG Fee is greater than the Estimated DAG Fee, DEVELOPER, within sixty (60) days thereafter, shall remit to CITY the total difference between the actual DAG Fee and the Estimated DAG Fee multiplied by the number of residential dwelling units for which the Estimated DAG Fee has been paid. If, on the other hand, the amount of the actual DAG Fee is less than the Estimated DAG Fee, DEVELOPER shall receive a first priority credit (“DAG Fee Credit”) against the payment of future DAG Fees in the total amount of the difference between the estimated DAG Fee and the actual DAG Fee, and DEVELOPER shall not be responsible for
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 19 15683
paying the DAG Fee for future residential dwelling units until the amount of the total DAG Fee Credit has been exhausted.
4.7. Reimbursement. DEVELOPER shall initiate a request for reimbursement of costs pursuant to Section 4.2 of this Second Amended Agreement by delivering to the CITY a payment request (“Payment Request”) along with invoices for the actual costs incurred in constructing and installing the public improvements for which reimbursement is being requested.
Upon receipt of a Payment Request, the City Engineer shall conduct a review in order to confirm that such payment request is complete, that the public improvements identified therein were constructed substantiall y in accordance with the improvement plans therefor, and to verify and approve the actual costs of the public improvements specified in such payment requests as evidenced by the invoic es submitted (“Actual Costs”). Such review shall be conducted in an expeditious manner and the DEVELOPER agrees to reasonably cooperate with the CITY in conducting each such review and to provide such additional information and documentation as is reasonably necessary to conclude each such review. Within ten (10) business days following receipt of any Payment Request , the City Engineer shall notify the DEVELOPER whether such Payment Request is complete, and, if not, what additional documentation must be provided. If such Payment Request is complete, the City Engineer will provide a written approval or denial of the Payment Request within thirty (30) days after submittal. If the Payment Request is disapproved, City Engineer shall provide written notice of disapproval to the DEVELOPER within such thirty (30) day period stating in reasonable detail the reasons for such disapproval and the changes to the Payment Request necessary to obtain approval. If the City Engineer disputes the Actual Costs of any public improvement covered by the Payment Request, the City Engineer shall approve for payment an amount equal to the Actual Costs thereof that the City Engineer determines is appropriate (which shal l not be less than the amount of contracts and change orders previously reviewed by the City Engineer) and shall deliver notice of disapproval of the remaining amount. If the City Engineer disapproves any revised Payment Request, the City Engineer will provide a written notice of approval or denial to the DEVELOPER within ten (10) business days after the receipt of the revised Payment Request, which notice shall describe in reasonable detail the reason for the denial if applicable.
The City Engineer shall only be entitled to withhold approval for payment of a public improvement subject to a Payment Request if (a) the DEVELOPER has not provided conditional lien releases for labor and materials provided in connection with such public improvement (provided that this basis for disapproval shall not app ly if the DEVELOPER has provided payment bonds to the CITY or has provided bonds protecting the CITY from mechanic s’ liens by parties that have not provided lien releases in the form satisfactory to the CITY), (b) the public improvements have not been constructed substantially in accordance with the improvement plans, or (c) the City Engineer disputes the Actual Costs of any public improvement stated in the Payment Request.
5. FINANCING OF PUBLIC IMPROVEMENTS AND FACILITIES .
5.1. CITY, in cooperation with and at the sole request of DEVELOPER, shall use its best efforts (which may include, but not be limited to, the CITY partnering with the California Municipal Finance Authority, or similar third party agency/authority that assists public agencies) to initiate the establishment of a Mello-Roos Community Facilities District (“CFD”) and authorize the issuance of bonds (“CFD Bonds”) to finance public improvement s and facilities to be constructed and installed in conjunctio n with the development of the Project on and with re spect to the Property, in accordance with the provisions of the Mello -Roos Community Facilities Act of 1982 (Government Code §53311 et seq. ), as amended (“Mello Roos Act”). A list of “Eligible Items” which can be
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reimbursed from CFD Bond proceeds is attached as Exhibit “I”. It is understood that multiple CFD improvement areas may be established over portions of the Property in order to facilitate the funding of public improvements and facilities to correspond with the phased development of the Project. The parameters of the CFD(s) shall be as follows or as otherwise required to meet minimum requirements of California law, as the same may be amended from time to time: (i) a minimum loan -to-value ratio of 1 to 3; (ii) a total effective property tax/assessment payment rate not to exceed one and eighty five hundredths percent (1.85%) per year per parcel; (iii) a debt service coverage ratio not to exceed 1 to 1 (unless adequate credit enhancement is provided to the reasonable satisfaction of CITY); and (iv) an annual escalator on the CFD tax and debt service of no more than two percent (2%) per year.
5.2. In addition, CITY , in cooperation with and at the request of DEVELOPER, shall, prior to issuance of the first building permit, agree to annex into CFD No. 2021 -1 and CFD No. 2021 - 2 to fund public safety and public facilities maintenance services, respectively. DEVELOPER shall also exercise best efforts to initiate the establishment of other assessment distr icts, maintenance districts, or other financing districts authorized by State law in order to assist in the payment of public improvement costs for the Project, subject to the same limitations set forth hereinabove. Nothing in this Section 5 is intended to restrict the authority of public agencies and public utility companies other than the CITY with regard to public improvements and facilities over which such other agencies and companies have jurisdiction.
6. REVIEW FOR COMPLIANCE .
6.1. Periodic Review . The Development Services Director shall review this Second Amended Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by DEVELOPER with the terms of th is Second Amended Agreement. DEVELOPER shall submit an Annual Monitoring Report, in a form acceptable to the Development Services Director, within 30 days after written notice from the Development Services Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of this Second Amended Agreement during the succeeding year. The amount of the annual review and administration fee shall be set by resolution of the City Council.
6.2. Special Review . The City Council may order a special review of compliance with this Second Amended Agreement at any time. The Development Services Director shall conduct such special reviews.
6.3. Procedure.
6.3.1. During either a periodic review or a special review, DEVELOPER shall be required to demonstrate good faith compliance with the terms of this Second Amended Agreement.
The burden of proof on this issue shall be on DEVELOPER.
6.3.2. Upon completion of a periodic review or a special review, the Development Services Director shall submit a report to the City Council setting forth the evidence concerning good faith compliance by DEVELOPER with the terms of this Second Amended Agreement and his or her recommended finding on that issue.
6.3.3. If the City Council finds on the basis of substantial evidence that DEVELOPER has complied in good faith with the terms and conditions of this Second Amended Agreement, the review shall be concluded.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 21 15683
6.3.4. If the City Council makes a preliminary finding that DEVELOPER has not complied in good faith with the terms and conditions of this Second Amended Agreement, the Council may modify or terminate this Second Amended Agreement as provided in Section 6.4 and Section 6.5. Notice of default as provided under Section 7.4 of this Second Amended Agreement shall be given to DEVELOPE R prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.
6.4. Proceedings Upon Modification or Termination . If, upon a finding under Section 6.3, CITY determines to proceed with modification or term ination of this Second Amended Agreement, CITY shall give written notice to DEVELOPER of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
6.4.1. The time and place of the hearing;
6.4.2. A statement as to whether or not CITY proposes to terminate or to modify the Second Amended Agreement; and,
6.4.3. Such other information as is reasonably necessary to inform DEVELOPER of the nature of the proceeding.
6.5. Hearing on Modification or Termination . At the time and place set for the hearing on modification or termination, DEVELOPER shall be given an opportunity to be heard.
DEVELOPER shall be required to demonstrate good faith co mpliance with the terms and conditions of this Second Amended Agreement. The burden of proof on this issue shall be on DEVELOPER. If the City Council finds, based upon substantial evidence , that DEVELOPER h as not complied in good faith with the terms or conditions of this Second Amended Agreement, the City Council may terminate this Second Amended Agreement or modify this Second Amended Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
6.6. Certificate of Agreement Compliance . If, at the conclusion of a Periodic or Special Review, DEVELOPER is found to be in compliance with this Second Amended Agreement, CITY shall, upon request by DEVELOPER, issue a Certificate of Agreement Compliance (“Certificate”) to DEVELOPER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Community Development Director and City Council that (1) this Second Amended Agreement remains in effect and (2) DEVELOPER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the findin g of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. DEVELOPER may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or DEVELOPER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Community Development Director or City Council.
7. DEFAULT AND REMEDIES .
7.1. Remedies in General. It is acknowledged by the parties that CITY would
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not have entered into this Second Amended Agreement if it were to be liable in damages under this Second Amended Agreement, or with respect to this Second Amended Agreement or the application thereof. In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Second Amended Agreement, except that CITY shall not be liable in damages to DEVELOPER , or to any successor in interest of DEVELOPER, or to any other person, and DEVELOPER covenants not to sue for damages or claim any damages:
7.1.1. For any breach of this Second Amended Agreement or for any cause of action which arises out of this Second Amended Agreement; or
7.1.2. For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Second Amended Agreement; or
7.1.3. Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of thi s Second Amended Agreement.
Notwithstanding the foregoing, nothing in this Second Amended Agreement shall be deemed to preclude DEVELOPER from instituting a legal action to enforce any right or pursue any remedy, including damages, based upon any alleged wrongful action of CITY concerning the Development of the Property arising independently from the terms of this Second Amended Agreement.
7.2. Specific Performance . The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non -monetary relief are particularly appropriate remedies for the enforcement of this Second Amended Agreement and should be available to all parties for the following reasons:
7.2.1. Money damages are unavailable against CITY as provided in Section
7.1 above.
7.2.2. Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Second Amended Agreement has begun. After such implementation, DEVELOPER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. DEVELOPER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Second Amended Agreement and will be investing even more significant time and resources in implementing th e Project in reliance upon the terms of this Second Amended Agreement, and it is not possible to determine the sum of money which would adequately compensate DEVELOPER for such efforts.
7.3. Release. Except for non-damage remedies, including the remedy of specific performance and judicial review, as DEVELOPER , for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands , actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution , or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Second Amended Agreement or because of the terms of this Second Amended Agreement.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 23 15683
7.4. Termination or Modification of Second Amended Agreement for Default of DEVELOPER. Subject to the provisions contained in Subsection 6.5 herein, CITY may terminate or modify this Second Amended Agreement for any failure of DEVELOPER to perform any material duty or obligation of DEVELOPER under this Second Amended Agreement, or to comply in good faith with the terms of this Second Amended Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Second Amended Agreement pursuant to this Section 7.4 only after providing written notice to DEVELOPER of default setting forth the nature of the default and the actions , if any, required by DEVELOPER to cure such default and, where the default can be cured, DEVELOPER has failed to take such actions and cure such default within 60 days after the effective date of su ch notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
7.5. Termination of Second Amended Agreement for Default of CITY.
DEVELOPER may terminate this Second Amended Agreement only in the event of a default by CITY in the performance of a material term of this Second Amended Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
8. THIRD PARTY LITIGATION.
8.1. Third Party Litigation Concerning Second Amended Agreement .
DEVELOPER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Second Amended Agreement or the approval of any permit granted pursuant to this Second Amended Agreement. CITY shall promptly notify DEVELOPER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify DEVELOPER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, DEVELOPER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.
8.2. Indemnity. In addition to the provisions of 8. 1 above, DEVELOPE R shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of DEVELOPER, its officers, age nts, employees, subcontractors and independent contractors , for property damage, bodi ly injury, or death (DEVELOPER ’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY.
DEVELOPER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 24 15683
8.3. Environmental Assurances. DEVELOPER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of DEVELOPER, its officers , agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and DEVELOPER shall defend, at its expense, including attorneys' fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.
8.4. Reservation of Rights. With respect to Sections 8.1, 8.2 and 8.3 herein, CITY reserves the right to either (1) approve the attorney(s) which DEVELOPER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that DEVELOPER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor.
8.5. Survival. The provisions of th ese Sections 8. 1 through 8. 5, inclusive, shall survive the termination of this Second Amended Agreement.
9. MORTGAGEE PROTECTION.
9.1. The parties hereto agree that this Second Amended Agreement shall not prevent or limit DEVELOPER, in any manner, at DEVELOPER's sole discretion, from encumbering the Propert y or any porti on 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 Second Amended Agreement interpretations and modifications and agrees upon request, from time to time, to meet with DEVELOPER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonab ly withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Second Amended Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
9.2 Neither entering into this Second Amended Agreement nor a breach of this Second Amended Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
9.3 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 DEVELOPER in the performance of DEVELOPER's obligations under this Second Amended Agreement.
9.4 If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to DEVELOPER under the terms of this Second Amended Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to DEVELOPER. The Mortgagee shall have the right, but not the obligation , to cure the default during the remaining cure period allowed such party under this Second Amended Agreement.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 25 15683
9.5 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 Second Amended Agreement.
Notwithstanding any other provision of this Second Amended Agreement to the contrary , no Mortgagee shall have an obligation or duty under this Second Amended Agreement to perform any of DEVELOPER’s obligations or other affirmative covenants of DEVELOPER hereunder, or to guarantee such performance; provided , however, that to the extent that any covenant to be performed by DEVELOPER 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, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Second Amended Agreement.
10. MISCELLANEOUS PROVISIONS.
10.1. Recordation of Second Amended Agreement . This Second Amended Agreement and any amendment or cancellation thereof shall be recorded with the County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.
10.2. Entire Agreement. This Second Amended 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 Second Amended Agreement.
10.3. Severability. If any term, provision, covenant or condition of this Second Amended Agreement shall be determined invalid, void or unenforceable, the remainder of this Second Amended Agreement shall not be affected thereby to the extent such remaining provisions are no t rendered impractical to perform taking into consideration the purposes of this Second Amended Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Second Amended Agreement, including the payment of the fees set forth therein, are essential elements of this Second Amended Agreement and CITY would not have entered into this Second Amended Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Second Amended Agreement shall be null and void and of no force and effect whatsoever.
10.4. Interpretation and Governing Law. This Second Amended Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Second Amended 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 Second Amended Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
10.5. Section Headings . All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Second Amended Agreement.
10.6. Singular and Plural. As used herein, the singular of any word includes the plural.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 26 15683
10.7. Joint and Several Obligations . If at any time during the term of this Second Amended Agreement the Property is owned, in whole or in part, by more than one DEVELOPER, all obligations of such DEVELOPERS under this Second Amended Agreement shall be joint and several, and the default of any such DEVELOPER shall be the default of all such DEVELOPERS.
Notwithstanding the foregoing, no DEVELOPER of a single lot which has been finally subdivided and sold to such DEVELOPER as a member of the general public or otherwis e as an ultimate user shall have any obligation under this Second Amended Agreement except as provided under Section 4 hereof.
10.8. Time of Essence. Time is of the essence in the performance of the provisions of this Second Amended Agreement as to which time is an element.
10.9. Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Second Amended Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Second Amended Agreement thereafter.
10.10. No Third Party Beneficiaries . This Second Amended 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 Second Amended Agreement.
10.11. Force Majeure . Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Second Amended 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 term of this Second Amended Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Second Amended Agreement shall not b e additionally extended pursuant to this Section 10.11 under any circumstances for more than five (5) years.
10.12. 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.
10.13. Successors in Interest and Assigns . The burdens of this Second Amended Agreement shall be binding upon, and the benefits of this Second Amended Agreement shall inure to, all successors in interest and assigns to the parties to this Second Amended Agreement. All provisions of this Second Amended Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
10.14. Counterparts. This Second Amended Agreement may be 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.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 27 15683
10.15. Jurisdiction and Venue . Any action at law or in equity arising under this Second Amended Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Second Amended Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
10.16. 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 Second Amended Agreement and the satisfaction of the conditions of this Second Amended Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgmen t 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 Second Amended Agreement to carry out the intent and to fulfill the provisions of this Second Amended Agreement or to evidence or consummate the transactions contemplated by this Second Amended Agreement.
10.17. Eminent Domain. No provision of this Second Amended Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.18. Authority to Execute. The person or persons executing this Second Amended Agreement on behalf of DEVELOPER warrants and represents that he, she or they have the authority to execute this Second Amended Agreement on behalf of his, her or their corporation, partnership or business entity and warrants and represents that he , she or they has/have the authority to bind DEVELOPER to the performance of its obligations hereunder.
[SIGNATURES ON NEXT PAGE]
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance 28 15683
IN WITNESS WHEREOF, the parties hereto have executed this Second Amended Agreement on the last day and year set forth below.
DEVELOPER:
IRON HORSE HILLS LLC, an Arizona limited
liability company
By: Paxton, Inc., an Arizona corporation, its
Manager
By:
Patrick E. Sovereign, Vice President
By:
Annette Beus, Secretary
Dated:
CITY:
CITY OF COLTON, a California municipal
corporation
By:
Mayor,
Dated:
ATTEST:
By:
City Clerk
APPROVED AS TO LEGAL FORM:
BEST & KRIEGER LLP
By:
City Attorney
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EXHIBITS
A. Legal Description and Depiction of Property.
A-1. Substantial Conformance Map.
B. Existing Development Approvals.
C. Existing Land Use Regulations.
D. Well Site.
E. Intentionally Omitted .
F. General Description of Neighborhood Parks Improvements.
G. Existing Development Impact Fees.
H. List of CFD Reimbursement Eligible Items.
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EXHIBIT “ A”
LEGAL DESCRIPTION AND DEPICTION OF PROPERTY
Real property in the City of Colton, County of San Bernardino, State of California, describes as follows:
TENTATIVE TRACT NO. 16798, BEING A SUBDIVISION OF THE FOLLOWING:
PARCEL NO. 1: (0164-471-01)
LOT “A”, TRACT NO. 9536, IN THE CITY OF COLTON, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 156 OF MAPS, PAGE(S) 17 THROUGH 19, INCLUSIVE, RECORDS OF SAID COUNTY.
PARCEL NO. 2: (0164-231-36 AND 0276-372-09)
THAT PORTION OF THE SOUTHEAST ¼ OF THE NORTHEAST ¼ OF SECTION 33, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN BERNARDINO BASE AND MERIDIAN, AND OF THE SOUTHWEST ¼ OF THE NORTHWEST ¼ OF SECTION 34, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN B ERNARDINO BASE AND
MERIDIAN, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS FOLLOWS:
COMMENCING AT A POINT ON THE SOUTH LINE OF HILLTOP DRIVE (AS SHOWN IN RECORD OF SURVEY BOOK 11, PAGE 65), SAID POINT BEING ALSO THE NORTHEAST CORNER OF THE SOUTHEAST ¼ OF THE NORTHEAST ¼ OF SECTION 33; THENCE SOUTH 89 DEG. 58’ 30” WEST ALONG THE NORTH LINE OF SAID SOUTHEAST ¼ OF THE NORTHEAST ¼, 79.98 FEET (RECORDED 80.00 FEET); THENCE SOUTH 64 DE G. 59’ 30” WEST, 98.00 FEET TO THE POINT OF BEGINNING OF THAT CERTAIN PARCEL OF LAND CONVEYED TO RICHARD REX GLASGOW AND JOAN LUTIS ARMINGTON GLASGOW, RECORDED MARCH 25, 1960, IN BOOK 5092, PAGE 339, OFFICIAL RECORDS;
THENCE CONTINUING ALONG SAID GLASGOW PARCEL SOUTH 40 D EG. 35’ 48” WEST, 135.50 FEET TO THE TRUE POINT OF BEGINNING;
THENCE SOUTH 77 DEG. 00’ 00” WEST, 50.20 FEET; THENCE NORTH 82 DEG. 00’ 00” WEST, 38.00 FEET; THENCE NORTH 61 DEG. 00’ 00” WEST, 38.00 FEET; THENCE NORTH 46 DEG. 00’ 00” WEST, 38.00 FEET; THENCE NORTH 31 DEG. 00’ 00” WEST, 87.00 FEET; THENCE NORTH 15 DEG. 00’ 00” WEST, 31.82 FEET TO A POINT ON THE NORTH LINE OF THE SOUTHEAST ¼ OF THE SOUTHEAST ¼ OF SAID SECTION 33; THENCE SOUTH 89 DEG. 59’ 30” WEST ALONG SAID NORTH LINE, 282.83 FEET TO A PO INT ON THE SOUTHERLY RIGHT OF WAY LINE OF THE GAGE CANAL CO., AS SHOWN ON SHEET NO. 2 OF THE RECORD OF SURVEY BOOK 7, PAGES 88 TO 92; THENCE CONTINUING ALONG SAID SOUTHERLY RIGHT OF WAY LINE NORTH 89 DEG. 56’ 40” WEST, 88.40 FEET (RECORDED NORTH 89 DEG. 55 ’ 40” WEST, RECORD OF SURVEY, BOOK 7, PAGE 89); THENCE SOUTH 69 DEG. 48’ 25” WEST, 68.10 FEET (RECORD SOUTH 69 DEG. 19’ WEST, RECORD OF SURVEY BOOK 7, PAGE 89); THENCE SOUTH 89 DEG. 57’ 40” WEST,
16.32 FEET TO THE INTERSECTION OF SAID SOUTHERLY RIGHT OF WA Y LINE WITH THE EASTERLY RIGHT OF WAY OF THE COUNTY ROAD FEDERAL AID PROJECT NO. 714; THENCE ALONG SAID EAST LINE SOUTH 43 DEG. 23’ 45” WEST, 170.25 FEET (RECORDED NORTH 43 DEG. 13’ 10” EAST); THENCE SOUTH 14 DEG. 14’ 45” WEST, 101.66 FEET (RECORDED NORTH 16 DEG. 00’ EAST, BOOK 4225, PAGE 271) TO THE MOST NORTHERLY POINT OF THAT CERTAIN PARCEL OF LAND CONVEYED TO GEORGE E.
GRAY AND HELYN E. GARY, MAY 9, 1957, IN BOOK 4225, PAGE 271, OF OFFICIAL RECORDS; THENCE LEAVING SAID EAST LINE OF THE COUNTY ROAD SOUTH 70 DEG. 08’ 06” EAST, 278.01 FEET (RECORDED SOUTH 68 DEG. 10’ EAST, 179.12 FEET); THENCE SOUTH 53 DEG. 34’ 45” EAST, 26.83 FEET (RECORDED SOUTH 51 DEG. 39’ 50” EAST, 26.83 FEET); THENCE SOUTH 42 DEG. 05’ 00” EAST, 63.23 FEET (RECORDED SOUTH 40 DEG. 11’ 50” EAST, 63.29 FEET); THENCE SOUTH 57 DEG. 48’ 40” EAST, 114.96 FEET (RECORDED SOUTH 55 DEG. 54’ 18” EAST, 115.10 FEET); THENCE SOUTH 35 DEG. 26’ 10” WEST, 44.67 FEET (RECORDED SOUTH 37 DEG. 07’ WEST, 44.71 FEET); THENCE SOUTH 23 DEG. 46’ 00” WEST, 105.80 F EET (RECORDED
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SOUTH 25 DEG. 45’ WEST, 105.61 FEET); THENCE SOUTH 14 DEG. 32’ 20” WEST, 237.95 FEET (RECORDED SOUTH 16 DEG. 32’ WEST, 238.00 FEET); THENCE SOUTH 17 DEG. 03’ 55” WEST, 269.14 FEET TO AN ANGLE POINT IN THE NORTH LINE OF THAT CERTAIN PARCEL OF LAND CONVEYED TO DR. W. B. TOWNSEND AND EVELYN T. TOWNSEND BY DEED RECORDED IN BOOK 1455, PAGE 216, OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID NORTH LINE NORTH 82 DEG. 30’ 25” EAST, 185.50 FEET (RECORDED NORTH 82 DEG. 40’ EAST, 186.00 FEET); THENCE SOUTH 15 DEG. 48’ 35” EAST, 280.21 FEET (RECORDED SOUTH 15 DEG. 39’ EAST, 278.10 FEET) TO THE SOUTH LINE OF THE SOUTHEAST ¼ OF THE NORTHEAST ¼ OF SECTION 33; THENCE ALONG SAID SOUTH LINE SOUTH 89 DEG. 40’ 15” EAST, 575.81 FEET TO THE SOUTHWEST CORNER OF S AID NORTHWEST ¼ OF SAID SECTION 34; THENCE NORTH 88 DEG. 14’ 50” EAST, ALONG SOUTH LINE OF SAID NORTHWEST ¼ 200.00 FEET; THENCE NORTH 16 DEG. 00’ 00” EAST, 405.69 FEET; THENCE NORTH 59 DEG. 00’ 00” EAST, 104.70 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 650.00 FEET; THENCE NORTHWESTERLY ALONG SAID CURVE FROM A TANGENT BEARING NORTH 31 DEG. 00’ 00” WEST, THROUGH A CENTRAL ANGLE OF 08 DEG. 00’ 00”, A DISTANCE OF 90.76 FEET; THENCE NORTH 23 DEG. 00’ 00” WEST, 105.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE EAST AND HAVING A RADIUS OF 20.00 FEET;
THENCE NORTHERLY AND NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 90 DEG. 00’ 00”, A DISTANCE OF 31.42 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST AND HAVING A RADIUS OF 500.00 FEET; THENCE NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 08 DEG. 30’ 00”, A DISTANCE OF 74.18 FEET; THENCE NORTH 14 DEG. 30’ 00” WEST, 290.00 FEET; THENCE NORTH 43 DEG. 00’ 00” E AST, 30.00 FEET; THENCE NORTH 74 DEG. 15’ 19” WEST, 640.00 FEET; THENCE NORTH 15 DEG. 44’ 41” EAST 37.30 FEET TO THE POINT OF BEGINNING.
PARCEL NO. 3: (0276-372-03)
THAT PORTION OF LOT 6 OF THE POOLE TRACT AS SHOWN BY MAP ON FILE IN BOOK 11, PAGE 40 OF
MAPS, OFFICIAL RECORDS OF SAN BERNARDINO COUTNY, IN THE COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, LYING SOUTHEAST OF THE SOUTHEASTERLY RIGHT OF WAY LINE OF BARTON
ROAD AND SOUTH OF THE SOUTH LINE OF HILLTOP DRIVE, AS CONVEYED TO SAN BERNARDINO COUNTY AND SHOWN ON RECORD OF SURVEY IN BOOK11, RECORDS OF SURVEY, PAGE 65, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
PARCEL NO. 4: (0276-372-04)
THAT PORTION OF LOT 45, TRACT NO. 2186, EAST COLTON HEIGHTS, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 31 OF MAPS, PAGE(S) 78, AND ALSO AS SHOWN ON LICENSED LAND SURVEYORS MAP, RECORDED IN BOOK 11 OF RECORDS OF SURVEYS, PAGE 65, IN THE OFFICE OF THE COUNTY RECORDER SAID COUNTY DESCRIBED AS FOLLOWS:
BEGINNING AT A ½ INCH IRON PIPE IN THE SOUTH LINE OF SAID LOT, SHOWN ON SAID LICENSED LAND SURVEYORS MAP, AS BEING DISTANT SOUTH 89 DEG. 59’ 30” WEST, 330 FEET FROM THE SOUTHEAST CORNER OF SAID LOT; THENCE NORTH 10 DEG. 38’ 15” WEST, 136.58 FEET TO AN IRON PIPE STAKE AS SHOWN ON SAID LICENSED SURVEYORS MAP; THENCE NORTH 40 DEG. 08’ 15” WEST, 264.41 FEET TO A POINT IN THE NORTHWESTERLY LINE OF SAID LOT 45; THENCE SOUTH 47 DEG. 02’ WEST, 290.37 FEET TO THE NORTHWESTERLY CORNER OF SAID LOT; THENCE SOUTH 0 DEG. 18’ 30” WEST, 136 .53 FEET TO A ¾ INCH IRON PIPE MARKING THE SOUTHWESTERLY CORNER OF SAID LOT; THENCE NORTH 89 DEG. 59’ 30” ESAT, 408.88 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION LYING NORTH OF THE SOUTH LINE OF HILLTOP DRIVE, 40 FEET WIDE AS CONVEYED TO THE COUNTY OF SAN BERNARDINO, IN DEED RECORDED MAY 3, 1956, IN BOOK 3929, PAGE 20, OFFICIAL RECORDS.
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PARCEL NO. 5: (0282-192-15)
THAT PORTION OF THE SOUTHWEST ¼ OF SECTION 34, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, IN THE CO UNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHWEST ¼ OF SAID SECTION 34; THENCE SOUTH 88 DEG. 05’ 54” WEST ALONG THE NORTHER LY LINE OF SAID SOUTHWEST ¼ 1195.03 FEET TO THE TRUE POINT OF BEGINNING; THENCE SOUTH 40 DEG. 24’ 06” EAST, A DISTANCE OF 83.53 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 300.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19 DEG. 30’ A DISTANCE OF 102.10 FEET; THENCE SOUTH 20 DEG. 54’ 06” EAST, 34.29 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 450.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16 DEG. 20’ 47” A DISTANCE OF 128.39 FEET; THENCE LEAVING THE ARC OF SAID CURVE SOUTH 52 DEG. 45’ 07” WEST,
62.24 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 150.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 58 DEG. 15’ 07” A DISTANCE OF 152.50 FEET; THENCE SOUTH 5 DEG. 30’ EAST, 62.72 FEET TO THE BEGINNING OF A CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 500.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGEL OF 18 DEG. 55’ 29” A DISTANCE OF 165.15 FEET TO A POINT OF REVERSE CURVE HAVING A RADIUS OF 500.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID REVERSE CURVE THROUGH A CENTRAL OF 13 DEG. 25’ 29”, A DISTANCE OF 117.15 FEET; THENCE DUE SOUTH 197.80 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 300.00 FEET; THENCE SOUTH AND EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 64 DEG. 00’, A DISTANCE OF 335.10 FEET; THENCE SOUTH 64 DEG. 00’ EAST, 60.43 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 150.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 0 DEG. 19’ 51”, A DISTANCE OF 16.49 FEET; THENCE SOUTH 88 DEG. 40’ 05” WEST, A DISTANCE OF 1099.45 FEET; THENCE NORTH 1 DEG. 19’ 55” WEST, 38.44 FEET; THENCE SOUTH 88 DEG. 40’ 05” WEST, 265.72 FEET TO A POINT ON A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 470.00 FEET, THE SEMI-TANGENT OF SAID CURVE BEARS NORTH 14 DEG. 00’ WEST; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19 DEG. 00’ A DISTANCE OF 155.86 FEET; THENCE NORTH 33 DEG. 00’ WEST, 308.09 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 530.00 FEET; THENCE NORTHERL Y ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 32 DEG. 50’ 30” A DISTANCE OF 303.79 FEET TO A POINT OF TANGENCY WITH THE WESTERLY LINE OF SAID SOUTHWEST ¼ OF SECTION 34; THENCE NORTH 0 DEG. 09’ 30” WEST 570.05 FEET THE NORTHWEST CORNER OF SAID SO UTHWEST ¼ OF SECTION 34; THENCE NORTH 88 DEG. 05’ 54” EAST, A DISTANCE OF 1392.73 FEET TO THE TRUE POINT OF BEGINNING.
PARCEL NO. 6: (0282-192-24)
A PORTION OF THE SOUTHWEST ¼ OF SECTION 34, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHWEST ¼ OF SAID SECTION 34; THENCE 88° 05’ 54” WEST, ALONG THE NORTH LINE OF SAID SOUTHWEST ¼, A DISTANCE OF 425.00 FEET TO THE
TRUE POINT OF BEGINNING, SAID TRUE POINT OF BEGINNING ALSO BEING THE NORTHWEST CORNER OF THE LAND CONVEYED TO LEROY W. OTTO, ET UX, BY DEED RECORDED JULY 26, 1960, IN BOOK 5194, PAGE 77 OF OFFICIAL RECORDS;
THENCE SOUTH 0° 36’ 55” WEST, AND PARALLEL THE EASTE RLY LINE OF SAID SOUTHWEST ¼ OF SECTION 34, A DISTANCE OF 200.00 FEET TO AN ANGLE POINT IN THE BOUNDARY OF SAID PARCEL CONVEYED TO LEROY W. OTTO, ET UX.;
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THENCE SOUTH 60° 48’ 04” EAST, ALONG THE SOUTHWESTERLY LINE OF SAID OTTO PROPERTY, A DISTANCE OF 426.58 FEET TO AN ANGLE POINT IN THE WESTERLY LINE OF SAID OTTO PROPERTY:
THENCE SOUTH 0° 36’ 55” WEST, 317.07 FEET ALONG THE WESTERLY LINE OF SAID OTTO PROPERTY, TO A POINT ON A CURVE CONCAVE SOUTHEASTERLY AND HAVING A RADIUS OF 280.00 FEET, THE SEMI-TANGENT OF SAID CURVE BEARS NORTH 67° 14’ 24” EAST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20° 21’ 03”, A DISTANCE OF 99.45 FEET, SAID CURVE BEING IN THE SOUTHEASTERLY LINE OF THE PARCEL CONVEYED TO MARY ANNE HARRINGTON, BY DEED RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 484 OF OFFICIAL RECORDS, TO THE MOST EASTERLY CORNER OF THE PROPERTY CONVEYED TO JAMES SULLIVAN, BY DEED RECORDED APRIL 19, 2961, IN BOOK 5408, PAGE 257 OF OFFICIAL RECORDS;
THENCE NORTH 67° 05’ 27” WEST, 554.21 FEET;
THENCE SOUTH 57° 37’ 10” WEST, 140 FEET;
THENCE NORTH 32° 22’ 50” WEST, 143.16 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 500.00 FEET;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10° 15’, AN ARC DISTANCE OF 89.46 FEET;
THENCE NORTH 42° 37’ 50” WEST, A DISTANCE OF 127.19 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 450.00 FEET;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 21° 43’ 44”, A DISTANCE OF 170.66 FEET;
THENCE NORTH 20° 54’ 06” WEST, 34.28 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 300.00 FEET;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE, THROUGH A CENTRAL ANGLE OF 19° 30’, A DISTANCE OF 102.10 FEET;
THENCE NORTH 40° 24’ 06” WEST, 83.53 FEET TO A POINT ON THE NORTHERLY LINE OF SAID SOUTHWEST ¼ OF SECTION 34;
THENCE NORTH 88° 05’ 54” EAST, ALONG THE NORTHERLY LINE OF SAID SOUTHWEST ¼, A DISTANCE OF 770.03 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION THEREOF WHICH LIES WITHIN THAT PARCEL OF LAND CONVEYED TO WARREN C. ALLINGHAN, ET UX., BY DEED RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 492 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY PORTION THEREOF WHICH LIES WITHIN THAT PARCEL OF LAND CONVEYED TO JULIA TATUM, ET AL., RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 486 OF OFFICIAL RECORDS.
PARCEL NO. 7: (0282-192-23)
A PORTION OF THE SOUTHWEST ¼ OF SECTION 34 , TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO THE OFFICAL PLAT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL, DATED AUGUST 2, 1890, DESCRIBED AS FOLLOWS:
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COMMENCING AT THE NORTHEAST CORNER OF THE SOUTHWEST ¼ OF SAID SECTI ON 34; THENCE SOUTH 0° 36’ 55” WEST, ALONG THE EAST LINE OF SAID SOUTHWEST ¼, 723.60 FEET TO A POINT ON A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 280.00 FEET, THE SEMI -TANGENT OF WHICH CURVE BEARS SOUTH 78° 00’ 47” WEST;
THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10° 46’ 23”, A DISTANCE OF 52.65 FEET TO THE SOUTHERLY CORNER OF THE MOST EASTERLY LINE OF A
PARCEL OF LAND CONVEYED TO MARY ANNE HARRINGTON BY JAMES SULLIVAN, BY DEED RECORDED IN BOOK 5242, PAGE 484 OF OFFICIAL RECORDS;
THENCE CONTINUING SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 20° 21’ 03”, A DISTANCE OF 99.45 FEET, SAID CURVE BEING THE SOUTHEASTERLY LINE OF SAID PARCEL CONVEYED TO MARY ANN HARRINGTON, TO THE TRUE POINT OF BE GINNING;
THENCE LEAVING THE ARC OF SAID CURVE NORTH 67° 05’ 27” WEST, 554.21 FEET; THENCE SOUTH 57° 37’ 10” WEST, 140.00 FEET TO A POINT IN THE NORTHEASTERLY LINE OF A PARCEL OF LAND CONVEYED TO WARREN C. ALLINGHAN AND MAXINE S. ALLINGHAN, BY MARY ANNE H ARRINGTON, BY DEED RECORDED IN BOOK 5242, PAGE 492 OF OFFICIAL RECORDS;
THENCE SOUTH 32° 22’ 50” EAST, ALONG THE NORTHEASTERLY LINE OF SAID PARCEL, 287.00 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE WEST AND HAVING A RADIUS OF 300.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 34° 59’ 57”, A DISTANCE OF 183.26 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE TO THE NORTHEAST AND HAVING A RADIUS OF 125.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67° 16’ 55”, A DISTANCE OF 146.79 FEET;
THENCE SOUTH 64° 39’ 48” EAST, A DISTANCE OF 14.95 FEET TO THE MOST EASTERLY CORNER OF SAID PARCEL OF LAND CONVEYED TO WARREN C. ALLINGHAM, ET UX., SAID POINT LIES ON A CURVE CONCAVE TO THE SOUTHE AST HAVING A RADIUS OF 230.00 FEET, SEMI -TANGENT OF WHICH BEARS NORTH 25° 20’ 12” EAST;
THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 11° 32’ 13”, A DISTANCE OF 46.31 FEET TO A POINT IN THE SOUTHEASTERLY LINE OF A PARCEL OF LAND CONVEYED TO JEEN KOOPMAN ON JULY 25, 1960, AND RECORDED IN BOOK 5194, PAGE 132 OF OFFICIAL RECORDS;
THENCE CONTINUING NORTHEASTERLY ALONG THE ARC OF SAID CURVE ON THE SOUTHEASTERLY LINE OF SAID PARCEL CONVEYED TO JEEN KOOPMAN, THROUGH A CENTRAL ANGLE OF 29° 01’ 26”, A DISTANCE OF 116.61 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE TO THE NORTHWEST AND HAVING A RADIUS OF 270.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 41° 00’ 30”, A DISTANCE OF 193.24 FEET T O THE MOST EASTERLY CORNER OF SAID PARCEL OF LAND CONVEYED TO JEEN KOOPMAN;
THENCE NORTH 24° 53’ 21” EAST, A DISTANCE OF 77.33 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST HAVING A RADIUS OF 280.00 FEET;
THENCE NORTHEASTERLY ALONG THE ARC O F SAID CURVE THROUGH A CENTRAL ANGLE OF 22° 00’ 00”, A DISTANCE OF 107.51 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THAT CERTAIN PARCEL OF LAND CONVEYED TO JEEN KOOPMAN ON JULY 25, 1960, AND RECORDED IN BOOK 5194, PAGE 132 OF OFFICIAL RECORDS.
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ALSO, EXCEPTING THEREFROM ANY PORTION THEREOF LYING WITHIN THAT PARCEL OF LAND CONVEYED TO WARREN C. ALLINGHAN, ET UX., BY DEED RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 492 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY PORTION THEREOF LYING SOUTHEASTERLY OF THE
SOUTHEASTERLY BOUNDARY OF THAT PARCEL OF LAND CONVEYED TO MARY ANNE HARRINGTON, BY DEED RECORDED SEPTEMBER 13, 1960, IN BOOK 5242, PAGE 484 OF OFFICIAL RECORDS.
PARCEL NO. 8: (0282-192-46)
A PORTION OF THE SOUTHWEST ¼ OF SECTI ON 34, TOWNSHIP 1, RANGE 4 WEST, SAN BERNARDINO
BASE AND MERIDIAN, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND APPROVED BY THE SURVEYOR GENERAL, DATED AUGUST 2, 1890, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHWEST ¼ OF SECTION 34;
THENCE SOUTH 88° 05’ 54” WEST ALONG THE NORTHERLY LINE OF SAID SOUTHWEST ¼ A DISTANCE OF 1195.03 FEET;
THENCE SOUTH 40° 24’ 06” EAST, 83.53 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 300.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 19° 30’, A DISTANCE OF 102.10 FEET;
THENCE SOUTH 20° 54’ 06” EAST, 34.29 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 450.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 16° 20’ 47”, A DISTANCE OF 128.39 FEET TO THE TRUE POINT OF BEGINNING;
THENCE LEAVING THE ARC OF SAID CURVE SOUTH 52° 45’ 07” WEST, 62.24 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY AND HAVING A RADIUS OF 150.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 58° 15’ 07”, A DISTANCE OF 152.50 FEET; THENCE SOUTH 5° 30’ EAST, 62.72 FEET TO THE BEGINNING OF A CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 500.00 FEET;
THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 18° 55’ 29”, A DISTANCE OF 166.15 FEET TO A POINT OF REVERSE CURVE HAVING A RADIUS OF 500.00 FEET; THENCE SOUTHERLY ALONG THE ARC OF SAID REVERSE CURVE THROUGH A CENTRAL ANGLE OF 13° 25’ 29”, A DISTANCE OF 117.16 FEET;
THENCE DUE SOUTH 197.80 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 300.00 FEET;
THENCE SOUTH AND EASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL 64° 00’, A DISTANCE OF 335.10 FEET;
THENCE SOUTH 64° 00’ EAST, 60.43 FEET TO THE BEGINNING OF A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 150.00 FEET;
THENCE SOUTHEASTERLY ALONG THE ARC OF THE SAID CURVE THROUGH A CENTRAL ANGLE OF 6° 17’ 51”, DISTANCE OF 16.45 FEET;
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36 15683
THENCE NORTH 88° 40’ 05” EAST, 396.69 FEET;
THENCE NORTH 0° 36’ 55” EAST, 51.19 FEET TO THE BEGINNING OF A CURVE CONCAVE EASTERLY HAVING A RADIUS OF 230.00 FEET;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 29° 43’ 17”, A DISTANCE OF 99.24 FEET;
THENCE LEAVING THE ARC OF SAID CURVE NORTH 64º 19’ 48” WEST, A DISTANCE OF 14.95 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 125.00 FEET;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67º 16’ 55”, A DISTANCE OF 146.79 FEET TO THE BEGINNING OF A REVERSE CURVE CONCAVE WESTERLY AND HAVING A RADIUS OF 300.00 FEET;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 34º 59’ 57”, A DISTANCE OF 183.26;
THENCE NORTH 32º 22’ 5 0” WEST, 430.16 FEET TO THE BEGINNING OF CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 500.00 FEET;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10º 15’, A DISTANCE OF 89.45 FEET;
THENCE NORTH 42º 37’ 50” WEST, A DIST ANCE OF 127.19 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 450.00 FEET;
THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 5º 22’ 87”, A DISTANCE OF 42.27 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION LYING SOUTH OR SOUTHEASTERLY OF THE SOUTH AND
SOUTHEASTERLY LINES OF THE PROPERTY CONVEYED TO MARY ANNE HARRINGTON, BY DEED RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 484 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM A NY PORTION THEREOF WHICH LIES WITHIN THAT PARCEL OF LAND CONVEYED TO JULIA TATUM, ET AL., RECORDED SEPTEMBER 23, 1960, IN BOOK 5242, PAGE 486 OF OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM ANY PORTION OF THE PROPERTY HEREIN DESCRIBED, CONVEYED TO WARREN C. ALLINGHAN, ET UX., BY DEED RECORDED JANUARY 30, 1969, IN BOOK 7174, PAGE 234 OF OFFICIAL RECORDS.
PARCEL NO. 9: (0282-192-45)
A PORTION OF THE SOUTHWEST ¼ OF SECTION 34, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN
BERNARDINO BASE AND MERIDIAN, ACCORDING TO GOVE RNMENT SURVEY, DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF LOT 39, TRACT NO. 6610, RECORDED IN BOOK 88 OF MAPS, PAGE 8, RECORDS OF SAID COUNTY;
THENCE SOUTH 88º 40’ 05”, WEST, ALONG A PORTION OF THE NORTHERLY LINE OF SAID TRACT 396.38 FEET TO A POINT ON A CURVE CONCAVE SOUTHWESTERLY AND HAVING A RADIUS OF 150.00 FEET; A LINE RADIAL TO SAID CURVE BEARS SOUTH 32º 17’ 51” WEST;
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance
37 15683
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 6º 17’ 51”, A DISTANCE OF 16.49 FEET;
THENCE NORTH 64º 00’ 00” WEST, 60.43 FEET TO THE BEGINNING OF A CURVE CONCAVE NORTHEASTERLY AND HAVING A RADIUS OF 300.00 FEET;
THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 14º 40’ 50”, A DISTANCE OF 76.87 FEET TO THE TRUE POINT OF BEGINNING FROM WHICH POINT A LINE RADIAL TO SAID CURVE BEARS NORTH 40º 40’ 50” EAST;
THENCE CONTINUING ALONG THE ARC OF SAID CURVE HAVING A RADIUS OF 300.00 FEET THROUGH A CENTRAL ANGLE OF 24º 29’ 29”, A DISTANCE OF 128.24 FEET;
THENCE LEAVING T HE ARC OF SAID CURVE ALONG A LINE RADIAL TO SAID CURVE, HAVING A BEARING OF NORTH 65º 10’ 19” EAST, A DISTANCE OF 345.00 FEET;
THENCE SOUTH 11º 08’ 40” EAST, A DISTANCE OF 128.00 FEET;
THENCE SOUTH 66º 10’ 19” WEST, A DISTANCE OF 287.73 FEET TO THE TRUE POINT OF BEGINNING.
EXCEPTING THEREFROM THE WEST 30.00 FEET, MEASURED RADIALLY TO THE AFOREMENTIONED 300.00 FOOT RADIUS CURVE, FOR ROAD AND UTILITY PURPOSES, AS DISCLOSED IN THE DEED FROM JAMES SULLIVAN, RECORDED JANUARY 30, 1969, IN BOOK 7174, PAGE 234 OF OFFICIAL RECORDS.
PARCEL 10: (0282-192-09)
A PORTION OF THE SOUTHWEST ¼ OF SECTION 34, TOWNSHIP 1 SOUTH, RANGE 4 WEST, SAN
BERNARDINO MERIDIAN, ACCORDING TO THE OFFICIAL PLAT THEREOF, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
COMMENCING AT THE NORTHEAST CORNER OF SAID SOUTHWEST ¼, BEING ALSO THE CENTER OF SAID SECTION 34; THENCE SOUTH 0 DEGREES 36’ 55” WEST, A DISTANCE OF 754.42 FEET TO A POINT, SAID POINT BEING 9.00 FEET SOUTH OF THE NORTHWEST CORNER OF THE SOUTH 20 ACRES OF L OT 6 OF THE SOUTHEAST ¼ OF SAID SECTION 34, SAID POINT ALSO BEING ON THE ARC OF A CURVE CONCAVE SOUTHEASTERLY AND WHOSE RADIAL LINE BEARS SOUTH 13 DEGREES 45” EAST, AND WHICH HAS A RADIUS OF 250.00 FEET; THENCE SOUTH AND WESTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 225.06 FEET AND THROUGH A CENTRAL ANGLE OF 51 DEGREES 34’ 54”; THENCE SOUTH 24 DEGREES 53’ 21” WEST, 77.33 FEET TO THE BEGINNING OF A CURVECONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 300.00 FEET; THENCE NORTH 65 DEGREES 06’ 39” WEST ALONG A RADIAL LINE OF THE AFOREMENTIONED CURVE 30.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE CONTINUING ALONG SAID RADIAL LINE NORTH 65 DECREES 06’ 39” WEST, 156.83 FEET; THENCE SOUTH 70 DEGREES 44’ 13” WEST, 190.04 FEET ALONG THE RADIAL LINE OF A CURVE HAVING A RADIUS OF 330.00 FEET AND BEING CONCAVE WESTERLY, TO A POINT ON THE ARC OF SAID CURVE; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE WHICH IS CONCAVE WESTERLY, A DISTANCE OF 126.03 FEET THROUGH A CENTRAL ANGLE OF 21 DEGREES 52’ 54” TO THE BEGINNING OF A REVERSE CURVE WHICH IS CONCAVE NORTHEASTERLY AND WHICH HAS A RADIUS OF 95.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE 111.56 FEET AND THROUGH A CENTRAL ANGLE OF 67 DEGREES 16’ 55” TO THE BEGINNING OF A COMPOUND CURVE WHICH IS CONCAVE NORTHERLY AND WHICH HAS A RADIUS OF 20.00 FEET; THENCE SOUTH AND EASTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 27.39 FEET AND THROUGH A CENTRAL ANGLE OF 78 DEGREES 27’ 47” TO THE BEGINNING OF A REVERSE CURVE WHICH IS CONCAVE EASTERLY AND WHICH HAS A RADIUS OF 230.00 FEET; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 116.51 FEET AND THROUGH A CENTRAL ANGLE OF 29 DEGREES 01’ 26” TO THE BEGINNING OF A REVERSE CURVE WHICH HAS A RADIUS OF 270.00 FEET AND WHICH IS CONCAVE NORTHWESTERLY;
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance
38 15683
THENCE NORTH AND EASTERLY ALONG THE ARC OF SAID CURVE, A DISTANCE OF 193.24 FEET AND THROUGH A CENTRAL ANGLE OF 41 DEGREES 00’ 30” TO THE TRUE POINT OF BEGINNING.
APN: 0164-471-01-0-000 AND 0164-231-36-0-000 AND 0276-372-03-0-000 AND 0276-372-04-0-000 AND 0276-372- 09-0-000 AND 0282 -192-15-0-000 AND 0282 -192-23-0-000 AND 0282 -192-24-0-000 AND 0282 -192-45-0-000 AND 0282-46-0-000.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance
39 15683
EXHIBIT “A-1”
SUBSTANTIAL CONFORMANCE MAP
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40 15683
EXHIBIT “B”
EXISTING DEVELOPMENT APPROVALS
• Tentative Tract Map No. 16798
Approved by the Planning Commission on August 6, 2005,
Resolution No. R-08-06
DAP-001-946: Substantial Conformance Revision to Tentative Tract Map No. 16798 (2012)
Amendment to Tentative Tract Map No. 16798
Amended by City of Colton Planning Commission on date , Resolution No. ________.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance
41 15683
EXHIBIT “C”
EXISTING LAND USE REGULATIONS
RECHE CANYON
Specific Plan Amendment for the
Iron Horse Hills Residential Project in Planning Area One (A) (Ordinance No. O-15-06 – September 19, 2006)
And
Colton Municipal Code Title 18 (“Zoning Code”), as of the effective date of this Second Amended Agreement
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EXHIBIT “D”
WELL SITE
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43 15683
EXHIBIT “E”
INTENTIONALLY OMITTED
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44 15683
EXHIBIT “F”
GENERAL DESCRIPTION OF NEIGHBORHOOD PARKS IMPROVEMENTS
Park Amenities for Lots B, H and Remainder Parcel
Lot B Park: Amenities include tot-lot structure, benches, bike racks, picnic tables and a circular walkway.
The Lot B park includes two -to-five year old play structure, with climbing and exploratory features. The playground will also feature a set of swings and safety surfacing. The seating area will include two benches and two picnic tables connected by an ADA accessib le walkway, as well as a bike rack and appropriate landscaping , including turf, and lighting .
Lot H Park: Amenities include a passive open space, benches, bike racks, and picnic tables.
The Lot H park include linear park features including a passive open space area, two benches and two picnic tables connected by an ADA accessible walkway, as well as bike rack , lighting and appropriate landscaping
Remainder Park Parcel : Amenities include a shade feature, benches, bike racks, and picnic tables.
The Remainder Parcel park includes seating area/shade structure (gazebo), two benches and two picnic tables connected by an ADA accessible walkway, as well as a bike rack and appropriate landscaping, including turf, and lighting .
All picnic tables, benches or bike racks shall include concrete pads underneath. Benches shall be fiber plastic as opposed to wooden to avoid splinters and damage. Landscaping shall comply with the City of Colton’s Urban Forest Management Plan (2018) , and include irrigation systems .
As specified by the Reche Canyon Specific Plan, park improvements shall include a tennis court, basketball court and restroom.
The Parties acknowledge that certain park improvements may be subject to the Easement Agreement that encumbers portions of the Property and that runs in favor of Southern California Edison, which may result in certain park improvements being prohibited in certain areas. In the event of any conflicts between the Easement Agreement and the Substantial Conformance Map, Developer and City agree to work together to : (i) identify an alternative park site; (ii) reconfigure the existing park site(s) to accommodate the required flat area park requirement; or (iii) assess additional Quimby fees to the Project.
Notwithstanding the foregoing , the City shall have sole discretion to determine if an alternative park site or reconfiguration satisfies the park improvement conditions of approval.
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45 15683
EXHIBIT “G”
EXISTING DEVELOPMENT IMPACT
FEES (per Ordinance No. O -020-20*)
City of Colton Water Capital Improvement Charge - 1 Inch Meter DU $1,730.00 City of Colton Water Capital Improvement Charge - 1-1/2 Inch Meter City of Colton Water Capital Improvement Charge – 2 Inch Meter EA
EA
$3,450.00
$5,522.00
City of Colton Water Connection Charge - I Inch Meter DU $3,068.00 City of Colton Water Connection Charge -1-1/2 Inch Meter EA $3,358.00 City of Colton Wastewater Capacity Charge DU $3,226.00
DIF: City of Colton - Civic Center Facilities DU $180.00 DIF: City of Colton - Fire Facilities DU $870.00
DIF: City of Colton - Library Facilities DU $515.00
DIF: City of Colton - Parks DU $5,714.00
DIF: City of Colton - Traffic Facilities DU $1,623.00
DIF: City of Colton - Police Facilities DU $1,134.00
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance
46 15683
EXHIBIT “H”
Tract No. 16798, City of Colton - Eligible CFD Facilities List
City of Colton (Development Impact Fees) Rate Per Quantity Total Traffic Facilities [1] $ 1,623 per DU 184 $ 298,632
Civic Center [1] 180 per DU 184 33,120
Fire Station [1] 870 per DU 184 160,080
Library [1] 515 per DU 184 94,760
Police [1] 1,134 per DU 184 208,656
Quimby in lieu Fees [1] 4,716 per DU Full Credit
Park Development Fee [1] 5,714 per DU Full Credit
Wastewater Capacity Charge [1][3] 3,220 per DU 184 592,480 Water Capital Improvement Fee (1" Meter) [1][3] 1,730 per MTR Full Credit Water Capital Improvement Fee (2" Meter) [1][3] 5,520 per MTR 10 55,200 Water Connection Fee (1" Meter) [1][3] 3,068 per MTR 184 564,512 Water Connection Fee (2" Meter) [1][3] 3,358 per MTR 10 33,580 Total City of Colton Development Impact Fees $ 11,092.50 $ 2,041,020 City of Colton Water Facilities Improvements
Pressure Reducing Station
Transmission & Distribution Facilities
Water Improvement Soft Costs 25%
[2]
[2]
[2]
$815.22
9,985.48
25%
Total
Total
of Costs
184
184
1,987,329
$150,000
1,837,329
496,832
Subtotal City Water Facilities Improvements
City of Colton Other Facilities Improvements
$ 13,500.88 $ 2,484,161
Storm Drain Facilities [2] $ 9,226.52 Total 184 $ 1,697,680 Sewer Improvements [2] 6,280.71 Total 184 1,155,650
Public Utilities - Energy Charge [2] 1,000 Total 184 184,000 Barton/Project Entry (Street Imp./Signalization) [2] 11,434.78 Total 184 2,104,000 Barton/Westwood Concrete [2] 708.40 Total 184 130,346
Barton/Westwood Asphalt [2] 1,315.22 Total 184 242,001 Traffic Signal [2] 4,572.47 Total 184 841,335
Barton Rd. Extension - Street "A" Arterial [2] 8,432.82 Total 184 1,551,639 Engineering/Soils/Survey Soft Costs - 25% [2] 25% of Costs 7,906,651 1,976,663 Subtotal City Other Improvements $ 53,713.66 $ 9,883,314 Total City of Colton Facilities Improvements $ 67,214.54 $12,367,475
Total Fees Proposed to be Financed by CFD $ 78,307.04 $14,408,495 Footnotes:
[1] Represents the applicable City of Colton development impact fees per City fee schedules and Development Agreement.
Subject to validation by Public Works following submittal of plan details by applicant for water and other facilities improvements.
Credit amounts per DA and client.
[2] Represents the estimated eligible City facilities to be financed by CFD. Actual amounts may vary. [3] Subject to change based on current adopted fees at time of payment.
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Attachment: Attachment 7_2nd Amended and Restated Iron Horse Hills Development Agreement_11-9-23 (4490 : Second Reading of Ordinance