ENCORE CAPITAL MANAGEMENT
770 TAMALPAIS DRIVE, #401B, CORTE MADERA, CA 94925
Phone: (415) 561-0600 Fax: (415) 561-0601 www.EncoreCM.com February 23, 2023
Stephanie Sanchez
Economic Development Project Manager
City of San Bernardino
201 North E St, 3rd Floor
San Bernardino, CA 92401
Re: DA Removal Justification Letter
University Hills Specific Plan
Badger Canyon Road & W Frontline Road
Dear Mrs. Sanchez,
We appreciate your continued assistance with our revitalization of the University Hills Specific Plan. Your team’s engagement and responsiveness has been monumental in helping us tailor the revised site plan to fit the needs of the community.
Pursuant to continued conversations with city staff, we hereby formally request to remove the previous Development Agreement from title for the reasons below:
Significant Changes to Design Standards
The provisions of the previous agreement no longer apply since we no longer satisfy Section 1.1 of developing the project “in accordance with the Project Approvals” from 2012, given we are changing the density and intensity of use, size of buildings, zoning standards, and the size of the dedicated mitigation land area. The unit count has been significantly reduced from 980 medium to high density units to 437 single-family homes and the permanent open space acreage has grown from 235 to 251 acres.
Our unit mix below, no longer comprises 515 two-story townhomes. • 2,750 (50’ wide x 55’ deep) square foot lots
• 3,600 (40’ wide x 90’ deep) square foot lots
• 4,500 (50’ wide x 90’ deep) square foot lots
5-Year Performance Requirement
The project is also out of compliance with Section 3.1.1 and Exhibit F which states:
Prior to the fifth anniversary of the effective date [April 19, 2012] of the development agreement the Owner/Developer shall:
Acquire the necessary rights (easements, licenses, rights of way, encroachment permits, etc) to construct the Phase 1 Infrastructure, including roads, intersections, drainage facilities, slopes, fuel [modification] areas, water storage tank and water lines.
Complete a full submittal of completed construction plans, which will include the civil engineering and landscape architecture, for a phase of single family homes consisting of at least 25 lots, with an associated park.
ENCORE CAPITAL MANAGEMENT
770 TAMALPAIS DRIVE, #401B, CORTE MADERA, CA 94925
Phone: (415) 561-0600 Fax: (415) 561-0601 www.EncoreCM.com After meeting with San Bernardino County Flood Control and CSU San Bernardino, we have confirmed that these tasks were never completed by the April 19, 2017 deadline. We are meeting with these agencies regularly to discuss alternative options that may better serve all partie s involved.
As always, we appreciate your continued attention to our project and look forward to delivering this community to the city. Please feel free to contact me with any questions or comments at [email protected].
Sincerely,
Julian Nan
Vice President
Encore University Hills LLC
Applicant
MEMORANDUM OF UNDERSTANDING
For Access to University Hills Development
Between Encore Capital Management (“Encore”)
and
California State University, San Bernardino (“CSUSB”)
FOR REVIEW PURPOSES ONLY
NOT VALID
This Memorandum of Understanding (“MOU”) establishes mutual understandings and commitments between Encore Capital Management (“Encore”) and California State University, San Bernardino (“CSUSB”) regarding access, construction coordination, and environmental and operational protections associated with the University Hills development adjacent to the CSUSB campus. The intent is to allow limited use of CSUSB property for roadway access while preserving the University’s academic, research, and operational interests.
1. BACKGROUND
• Encore is working in coordination with the City of San Bernardino and the San Bernardino County Flood Control District to amend the University Hills Specific Plan as last approved in 2008. • The proposed access improvements at the intersection of Devil’s Canyon Road and Campus Circle involve a small portion (~7,900 sq. ft.) of CSUSB property. • CSUSB maintains adjacent facilities including the Campus Land Laboratory, Geological Fault Study Area, and Murillo Family Observatory, which require protection from grading, dust, noise, vibration, stormwater alteration & erosion control, vector control, and light pollution. • Both parties wish to cooperate in good faith to facilitate compatible development, emergency safety, and environmental stewardship.
2. ACCESS RIGHTS AND CONDITIONS
Limited Access Grant:
CSUSB agrees to grant Encore non-exclusive access to approximately 7,900 sq. ft. of land at the Devil’s Canyon–Campus Circle intersection for roadway construction, grading, operations and maintenance, and the installation, operations and maintenance of utilities consistent with approved project plans, conditioned upon approval of the University Hills Specific Plan amendment and all other project entitlements and agreement upon the form of an easement per Section 8 below.
Access Conditions:
• All work shall be limited to the area shown in Exhibit A and shall avoid interference with CSUSB’s Land Laboratory or facilities yard.
• Encore shall provide written notice to the University at least 30 days prior to commencing any activity on or within 100 feet of CSUSB property.
• Encore shall provide all proposed traffic control and mitigation plans to the University 30 days prior to commencing any temporary road and traffic alterations on or adjacent to CSUSB property • The constructed road shall not be gated or restricted in a way that impedes University access. • The University Hills HOA shall maintain all improvements and indemnify CSUSB against liabilities arising from construction or operation within the easement area.
3. CONSTRUCTION MANAGEMENT AND CAMPUS PROTECTION
Encore shall:
• Coordinate construction schedules and traffic control and mitigation plans with CSUSB Facilities Management and University Police.
• Limit construction activities to 7:00 a.m.–5:00 p.m., Monday through Friday. • Implement dust, noise, and vibration controls to protect nearby research sites and observatory equipment.
• Prohibit construction staging or material storage within 100 feet of the Land Laboratory or fault access areas.
• Restore any disturbed CSUSB property to pre-construction conditions to the satisfaction of the University.
4. FAULT AND LAND LABORATORY ACCESS
• CSUSB shall retain unrestricted access to its Land Laboratory and geological research zones, including the San Andreas fault exposure, for educational and scientific purposes. • Encore shall design grading, retaining walls, and fencing to maintain continuous physical access to these research zones.
• No construction may occur that would obstruct, bury, or destabilize the exposed fault face. • Access routes shall remain open for educational use at all times during and after construction.
5. LIGHTING AND OBSERVATORY PROTECTION
• All outdoor lighting shall comply with International Dark-Sky Association (IDA) standards:
o Fully shielded, downward-directed fixtures
o Correlated color temperature ≤ 3000K
o No uplighting or exposed bulbs
• Encore shall submit a photometric plan to CSUSB Facilities Management for review before installation. • Any lighting found to violate dark-sky requirements shall be corrected within 60 days of written notice from CSUSB.
6. ENVIRONMENTAL, SAFETY, AND EMERGENCY RESPONSE COORDINATION
• Encore shall provide CSUSB with all hydrology, stormwater, and traffic control and mitigation plans affecting the campus or adjacent flood control facilities prior to final approval. • Roadway design speeds adjacent to CSUSB shall not exceed 40 mph. • Emergency Response: Encore shall coordinate with the City of San Bernardino Fire Department, Police Department, and CSUSB University Police to ensure the development does not negatively impact emergency response times to the CSUSB campus or surrounding areas. o An Emergency Services Access Plan shall be submitted for joint review by the City and CSUSB prior to final roadway approval.
o Encore shall implement mitigation measures recommended by those agencies to maintain or improve current response times.
o If monitoring after construction shows degradation of response times, Encore or the HOA shall cooperate with the City and CSUSB to fund or implement corrective improvements.
7. ENVIRONMENTAL AND BIOLOGICAL PROTECTION
Encore shall implement measures to protect biological, geological, and ecological resources near CSUSB property, including:
• Preservation of native vegetation and wildlife corridors adjacent to the Land Lab; • Protection of existing drainage flows and prevention of erosion or sedimentation onto CSUSB lands; and
• Compliance with all CEQA mitigation measures applicable to University Hills.
8. UTILITIES, EASEMENTS, AND DOCUMENTATION
• Encore shall not use or amend any existing CSUSB easements without express written approval in its sole discretion.
• Public utilities (including the University Hills sewer main) shall not cross CSUSB property unless separately negotiated.
• Separate Recorded Easement: The parties shall prepare, execute, and record a separate easement agreement based on CSUSB’s standard easement template to formally document:
o The exact boundaries of the access area (approx. 7,900 sq. ft.); o Construction and maintenance responsibilities;
o Provisions for fault access, lighting compliance, and emergency coordination; and o Applicable indemnities and insurance.
• The easement shall be recorded with the County of San Bernardino prior to commencement of construction affecting CSUSB land.
9. AGENCY REVIEW AND APPROVAL
Encore shall submit final roadway, lighting, and drainage designs to CSUSB for review and written concurrence before approval by the City of San Bernardino or San Bernardino County Flood Control District. No agency submittals or construction permits involving CSUSB property shall proceed without such written concurrence.
Encore shall obtain a construction permit from CSUSB for all improvements on CSUSB property.’
10. INSURANCE AND INDEMNIFICATION
Encore shall maintain:
• Commercial General Liability Insurance with minimum limits of $2,000,000 per occurrence and $5,000,000 aggregate, naming The Trustees of the California State University as additional insured; • Automobile and Contractor’s Liability Insurance with limits not less than $1,000,000; and • Workers’ Compensation Insurance as required by law.
Encore and the University Hills HOA shall defend, indemnify, and hold harmless CSUSB and the State of California from any claims arising from the activities contemplated under this MOU.
11. TERM AND TERMINATION
This MOU shall remain in effect for three (3) years from the Effective Date unless:
• Superseded by a definitive agreement or recorded easement; or • Terminated by the University if there has not been reasonable progress toward approval within 1 year; or • Terminated earlier by mutual written consent of both parties.
12. DISPUTE RESOLUTION
Any disputes regarding the interpretation or implementation of this MOU shall first be resolved through good-faith negotiation between designated representatives. If unresolved, the matter may be submitted to non-binding mediation before either party seeks other remedies.
13. NON-BINDING NATURE
This MOU represents the mutual intent of the parties and shall not create any legally binding obligations except as expressly provided in Section 8 regarding execution of a separate easement agreement.
14. EXHIBITS
• Exhibit A: Vicinity and Access Map (~7,900 sq. ft. parcel) • Exhibit B: Preliminary Road Alignment and Retaining Wall Concept • Exhibit C: Emergency Services Circulation Plan
10. Signatures
___________________________________
Encore University Hills, LLC
David Hardy, Vice President
Encore Capital Management
770 Tamalpais Drive, Suite 401B
Corte Madera, CA 94925
Phone: (951) 704-4508 | Email:[email protected]
__________________________________________
California State University, San Bernardino
Samuel Sudhakar, Vice President & CFO
California State University, San Bernardino
5500 University Parkway
San Bernardino, CA 92407
Phone: (909)537-5995 | Email:[email protected]