2010-12 RESOLUTION NO. 2010- 12
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF GRAND
TERRACE, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA
RECOMMENDING THAT THE CITY COUNCIL ADOPT DEVELOPMENT
AGREEMENT 09-01 APPLICABLE TO APPROXIMATELY 12.5 ACRES OF THE
GRAND TERRACE TOWN SQUARE MASTER DEVELOPMENT PLAN
WHEREAS, the Applicant, Mr. Douglas Jacobsen ("Applicant"), has requested
that the City enter into a Development Agreement for implementation of the Grand
Terrace Town Square Master Development Plan ("TSMDP"), in accordance with
Sections 65864 through 65869.5 of the California Government Code.
WHEREAS, the Applicant has legal and/or equitable interest in approximately
12.5 acres of the TSMDP located south of Barton Road between Michigan Street and
the Gage Canal.
WHEREAS, The TSMDP proposes commercial development on properties
totaling approximately 20.83 gross acres, with approximately 210,000 square feet of
commercial uses to be constructed in five (5) phases or "Development Units". On July
�- 27, 2010, by Resolution No. 2010-28, the City Council adopted Site and Architectural
Review 07-12/Town Square Master Development Plan; the Master Development Sign
Program 09-01; the Sign Program for Development Unit 1; Site and Architectural
Review 07-07; and their related conditions of approval.
WHEREAS, On July 27, 2010, pursuant to CEQA, the City Council, by
Resolution No. 2010-27, certified the Final Environmental Impact Report for the TSMDP
("FEIR"), made the findings required by Public Resources Code Section 21081; adopted
a Mitigation Monitoring Program; and adopted a Statement of Overriding Considerations
for the TSMDP.
WHEREAS, on October 21, 2010, the Planning Commission conducted a public
meeting at the Grand Terrace Council Chambers located at 22795 Barton Road, Grand
Terrace, California 92313 and concluded the meeting on said date.
WHEREAS, all legal prerequisites to the adoption of this Resolution have
occurred.
NOW THEREFORE, it is hereby found, determined and resolved by the Planning
Commission of the City of Grand Terrace:
1. The Planning Commission hereby specifically finds that all of the facts set forth in
the Recitals of this Resolution, are true and correct.
Page 2 of 3
2. The Planning Commission hereby finds that pursuant to Section 15162 of CEQA,
— ` a subsequent EIR is not required for the Development Agreement because (1) no
substantial changes are proposed in the project which will require major revisions
of the previous EIR due to the involvement of new significant environmental
effects or a substantial increase in the severity of previously identified significant
effects; (2) no substantial changes occur with respect to the circumstances under
which the project is undertaken which will require major revisions of the previous
EIR due to the involvement of new significant environmental effects or a
substantial increase in the severity of previously identified significant effects; and
(3) no new information of substantial importance, which was not known and could
not have been known with the exercise of reasonable diligence at the time the
previous EIR was certified shows (a) that the project will have one or more
significant effects not discussed in the previous EIR, (b) that the significant
effects previously examined will be substantially more severe than shown in the
previous EIR; '(c) that mitigation measures or alternatives previously found not to
be feasible would in fact be feasible, and would substantially reduce one or more
significant effects of the project, or (d) that mitigation measures or alternatives
which are considerably different from those analyzed in the previous EIR would
substantially reduce one or more significant effects on the environment.
3. Based on substantial evidence presented to the Planning Commission during the
October 21, 2010 public hearing, including public testimony, and written and oral
staff report, the Planning Commission specifically finds as follows with regard to
Development Agreement 09-01:
a. The project site is designated as General Commercial (GC) in the City of
Grand Terrace General Plan Land Use Map and BRSP-General
Commercial in the Barton Road Specific Plan. In approving the TSMDP
and related applications the City Council found that the Project is
consistent with the provisions of the Grand Terrace General Plan, Zoning
Code and Barton Road Specific Plan. The adoption of the proposed
Development Agreement is also consistent with these provisions because
the Development Agreement is intended to assist in the implementation of
the TSMDP, a neighborhood commercial center consistent within the
General Commercial Land Use designation, and the BRSP-General
Commercial zoning designation
b. The proposed Development Agreement complies with the requirements of
California Government Code Article 2.5, Development Agreements,
Sections 65864 through 65869.5, including that the property owners are
the appropriate authority to enter into a Development Agreement, annual
monitoring is required by the agreement to demonstrate good faith
Page 3of3
compliance and progress, the contents of the agreement include the
density, maximum building height, building size, and provisions for the
reservation and dedication of land for public purposes and provisions to
comply with the development standards in effect at the time, and the
agreement contains provisions for enforcement, amendment, recordation,
and suspension. Public hearings will be held on the Development
Agreement prior to its adoption and findings of consistency can be made
to approve the agreement.
C. The proposed Development Agreement will not be physically detrimental
to or cause adverse physical effects to adjacent property owners,
residents, or the general public because the Agreement provides for
improvement of the property in accordance with the adopted TSMDP and
the certified EIR prepared for the TSMDP.
4. Based on the findings and conclusions set forth in paragraphs 1, 2, and 3 above,
this Commission hereby recommends that the City Council approve
Development Agreement 09-01, attached hereto as Exhibit 1.
5. The City Clerk of the City of Grand Terrace shall certify to the adoption of this
Resolution.
PASSED AND ADOPTED by the Planning Commission of the City of Grand Terrace,
California; at a regular meeting held on the 21St day of October, 2010.
AYES: 3
NOES: 2
ABSENT: N/A
ABSTAIN: N/A
ATTEST:
Brenda Mesa Doug Wilson
City Clerk Chairman, Planning Commission
Exhibit 1
Recorded at request of )
Clerk, City Council )
City of Grand Terrace )
When recorded return to: )
City of Grand Terrace )
22795 Barton Road )
Grand Terrace, CA 92313-5295 )
Attention: City Clerk )
Exempt from Filing Fees, Government Code Section 6103
DEVELOPMENT AGREEMENT
A DEVELOPMENT AGREEMENT BETWEEN
M h ry4 a
CITY OF GRAND TERRACE, A CAL IF�ORNIA M-0461P�AL CORPORATION,
DENNIS D. JACOBSEN FAMILY HOLDINGS, A CALIFORNIA LIMITED LIABILITY
COMPANY OR ASSIGNEE
yr and
STATER-BR''MARKETS,A CALIFO IA CORPORATION OR ASSIGNEE
' ;�Adopted by Ordinaeo. Effective 2010]
�a�
DEVELOPMENT AGREEMENT
This Development Agreement ("Agreement") is entered into on the effective date of the
adopting ordinance ("Effective Date")by and between the City of Grand Terrace, a California
Municipal Corporation("CITY"), and Dennis D. Jacobsen Family Holdings, a California
Limited Liability Company or Assignee and Stater Bros. Markets, a California Corporation, or
Assignee (collectively"DEVELOPER"):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with
persons having legal or equitable interests in real property forthe development of such property;
and
WHEREAS, DEVELOPER owns a legal and/or equitable interest in approximately 12.5
acres of land located south of Barton Road between Michigan Street and the Gage Canal, as
described in the legal descriptions attached hereto as Exhibit ' (the "Property')
; a d
WHEREAS,pursuant to the CITY's General Plan andthe Barton Road Specific Plan,
DEVELOPER desires to develop on the Property a commercial center of approximately 210,000
square feet of building area,known as the?Gra' T.errace Town Sq axe,(the "Project"), as further
described in the Grand Terrace Town Square Master.Development'Plan(the "TSMDP") and
related Project Approvals and Development Approvals descrbed�herein; and
WHEREAS, DEVELOPIER,"has requested,,"CITY to enter into a development agreement
and proceedings have,.been taker-\Hui accordance with the rules and regulations of CITY; and
WHEREAS,by electing to`enter into this Agreement, CITY shall bind future City
Councils of CITY.by the obligations~spec fied--herein and limit the future exercise of certain
government-' l�a d�prop�etary p6wers of CITY;"and
. .
A'WHEREAS, the terms,and c' ' dihons of this Agreement have undergone review by
CITY, it's P-gpmng Commission and he City Council and have been found to be fair,just and
reasonable,'and,
i. ,
l
WHEREAS;the best,,interests of the citizens of the CITY and the public health, safety
and welfare will be s0,V,ed<by entering into this Agreement; and
WHEREAS, iri�Econnection with its approval of the Project entitlements, CITY has taken
several actions collectively referred to as the "Project Approvals," which include,without
limitation, the following:
1. Final Environmental Impact Report. On July 27, 2010,pursuant to CEQA, the
City Council,by Resolution No. 2010-27, certified the Final Environmental Impact Report for
the Project(the "FEIR"), made the findings required by Public Resources Code Section 21081;
W02-WEST:3MPB1\402367481.1 -2-
adopted a Mitigation Monitoring Program for the Project; and adopted a Statement of Overriding
Considerations.
2. Grand Terrace Town Square Master Development Plan. The TSMDP
proposes commercial development on properties totaling approximately 20.83 acres, with
approximately 210,000 square feet of commercial uses to be constructed within the Project area
in five(5)phases or "Development Units". On July 27, 2010,-by Resolution No. 2010-28,the
City Council adopted the Site and Architectural Review 07-12/Town Square Master
Development Plan; the Master Development Sign Program 09-01; the`Sign'Program for
Development Unit 1; Site and Architectural Review 07-07; and their�related conditions of
approval. Entitlements for subsequent Development Units (2 thfouggh" to the extent they are
consistent with the TSMDP, will be approved subject to the CITY's Site Plan and Architectural
Review Process, and Conditional Use Permit process whe!ksp6cified by'theTSMDP.
3. Tentative Parcel Map No. 17787 (08;OT) On July 27, 2010,byResolution No.
2010-30, the City Council approved the Tentative`Parcel Map for Phases 1 and 2`of the Project
(Development Units 1 and 2 of the TSMDP), and related conditions-of approval.
WHEREAS, this Agreement andbthe Project are cons%sent with the CITY's
Comprehensive General Plan and the Bart6ii4Road Specific Plan(BRSP-03091 and E-03-08);
and
WHEREAS, all actions taken and approvals given, y-CITY"have been duly taken or
approved in accordance with-al-happlicable legal r q irements for notice,public hearings,
�:'.
findings, votes, and other-procedural matters; and
WHEREAS;development o the Property in,accordance with this Agreement will
provide substantial benefits to CITY and will further,`important policies and goals of CITY; and
~~ IN
WHEREAS,,th`s,Agredfix' will eliminate uncertainty in planning and provide for the
orderly,development of.the`Property;nsure progressive installation of necessary improvements,
provide for public services appropriate tdAhe development of the Project, and generally serve the
purposes for which development agreements under Sections 65864 et seq. of the Government
Code are int6d'ed; and
WHEREAS�j EVEL>IO1PER has incurred and will in the future incur substantial costs in
order to assure develop ent'of the Property in accordance with this Agreement; and
WHEREAS, DEVELOPER has incurred and will in the future incur substantial costs in
excess of the generally applicable requirements in order to assure vesting of legal rights to
develop the Property in accordance with this Agreement.
W02-WEST:3MPB1\402367481.1 -3-
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants
hereinafter contained and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in tlusgreement shall be
defined as follows: Y
1.1.1 "Agreement"means this Development Agreement.
1.1.2 "CITY"means the City of Grand Terrace, ate",Un cipal corporation,
organized and existing pursuant to the laws of the State ofCalifornia. za'
1.1.3 "DEVELOPER"me ' the. ersons and entities listed as
DEVELOPER on page 1 of this Agreement and their successors in interest to all or any part of
the Property.
1.1.4 "Development"means the impro ementof the Property for the
purposes of completing the structures, improvements and facilities compnsmg the Project
_ including,but not limited to: grading; the cons truct>onof'require infrastructure and public
facilities related to the Project whether locate dyzthrl or outside the Property; the construction of
buildings and structures,farid-=t4e installation of landscaping..``Development" does not include the
maintenance,repair, reconstructionor redevelopment of any building, structure, improvement or
facility after the consfr>�etxon and completion thereof
F.
it evelopment Agreement Policies" means any and all applicable
developmenttagreemer �olicies of the CITY m effect at the time of this Agreement.
`Developi eiit Approvals"means all permits and other
entitlements for use subject to approval or issuance by the CITY in connection with the Project
Approvals and development o£the Property consistent with the NIDP and this Agreement.
,�'hl1 7 )`Development Exaction"means any requirement of CITY in
connection with or pusuant to any Land Use Regulation or Development Approval for the
dedication of land, the construction of improvements or public facilities, or the payment of fees
in order to lessen, offset, mitigate or compensate for the impacts of development on the
environment or other public interests.
1.1.8 "Development Impact Fee" a monetary exaction other than a tax or
special assessment 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, including capacity or connection fees adopted and
W02-WEST:3MPB1\402367481.1 -4-
collected by utility service providers,but does not include fees for processing applications for
governmental regulatory actions or approvals, or fees collected under development agreements
adopted pursuant to Article 2.5 of the Government Code of Chapter 4.
1.1.9 Effective Date"means the date the ordinance approving this
Agreement becomes effective.
1.1.10 "Existing Development Approvals"means,all Development
Approvals approved or issued prior to the Effective Date. Existing Development Approvals
includes the Project Approvals incorporated herein as Exhibit"C""and all other approvals which
are a matter of public record on the Effective Date. 4 \
1.1.11 "Existing Land Use Regulatfons"means all.Land Use Regulations
in effect and applicable to the Project on the Effective Date Existing Land Usee Regulations
includes the Regulations incorporated herein as Exhibit"D" and all other Regulations which are
a matter of public record and applicable to the PrpJ ect on the Effective Date.
1.1.12 "Land Use Regulations"means dll ordinances,resolutions, codes,
rules,regulations and official policies of;CITY governing thedevelopment and use of land, and
the design, improvement and construct>oii standards and specifications�plicable to the
development of the property. "Land Use Regulatfons" does not mclude;/5any CITY ordinance,
resolution, code, rule, regulation or official policy,governing:
(a) u-the conduct of businesses,professions, and occupations;
(b),�A taxes`and assessments;
(c) thecontrol and abatement of nuisances;
thennting of encroachment permits and the conveyance of rights
and interests wn>ch provid`e'for the�use of or the entry upon public property;
(e) t�e exercise of the power of eminent domain.
1.1.13 "Master Development Plan(TSMDP)"means the Grand Terrace
Town Square Master�Develo ment Plan, including,without limitation, those Existing
Development Approv`als,ai dthe Existing Land Use Regulations applicable to development of
the Property.
1.1.14 "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.
1.1.15 "Project"means the development of the Property contemplated by
the TSMDP and the Project Approvals.
W02-WEST:3MPB 1\40236748 1.1 -5-
1.1.16 "Property"means the real property described on Exhibit"A" and
shown on Exhibit"B"to this Agreement.
1.1.17 "Reservations of Authority"means the rights and authority
excepted from the assurances and rights provided to DEVELOPER under this Agreement and
reserved to CITY under Subsection 4.7 of this Agreement.
1.1.18 "Subsequent Development Approvals"means all Development
Approvals required subsequent to the Effective Date in connection wifh"derl velopment of the
Property, including,particularly, Site and Architectural Review approvals required for
development of Phases 2 through 4 (Development Units 2 through 4) of the TSMDP.
1.1.19 "Subsequent Land Use Regulations"means.any�Land Use
Regulations adopted and effective after the Effective D b 0 this Agreemenfi
1.1.20 "Vesting Date" means th ffective Date of this Agreyeement.
1.2 Exhibits. The following documents are attached to, and by this reference
made apart of, this Agreement: .
Exhibit A Legal Description of the Property y
..
Exhibit"B"—Project Site Plan. j� n
Exhibit Existing Development Approls
Exhibit;f`D"—Existing Codes and,Land Use Regulations
Exhibit"I& 4evelopxxien ees ("E-1") and Credits/Reimbursement
Yy
ExhibitM"F" Devela" en Incentive Bonus
2. MUTUAL BENEFITS k '
This Agreement is entered into for the purpose of implementing the TSMDP for the
Project in a manneig)*wzllsecure certain assurances to the DEVELOPER that the Property
may be developed in accordance with the TSMDP, the Project Approvals, and this Agreement,
and certain benefits toole CITY as set forth in this Agreement. The CITY and the
DEVELOPER agree that, due to the current economic conditions, the size and duration of the
Project, this Agreement is necessary to achieve those desired benefits. The following non-
exclusive list of public benefits and objectives has been met for the Project:
(a) The DEVELOPER has successfully acquired and consolidated properties to
largely eliminate conflicting residential land uses including a trailer park, and the TSMDP
W02-WEST:3MPB1\402367481.1 -6-
1
provides for the orderly development of a major commercial center, commencing with the
construction of a major grocery store anchor;
(b) The TSMDP accomplishes the goals and objectives of the Barton Road Specific
Plan providing a comprehensive land use plan to assist the City in achieving the full economic
potential of the Barton Road commercial corridor,by consolidating a number of narrow parcels
within a single master planned commercial center with uniform architectural plans and signage;
(c) The TSMDP provides a programmatic land use plan with an,attractive urban
design theme,which establishes a"village character" with architectural design which will
upgrade the physical image of the Barton Road commercial corrdor,
f
(d) The TSMDP provides an integrated commercialenter with public amenities,
shared access and reciprocal parking; and40
(e) With its unified on-site and off-sitemaster sign program, the TSM' ,w ll result
in recaptured retail sales leakage to surrounding communities in, ding both local and
community level goods and services.
3. GENERAL PROVISIONS. °
3.1 Binding Effect of Aueement.. The-Property is e iy made subject to this
Agreement. Development of the Property ishereby`au prized an& hall be carried out only in
accordance with the terms of,tbis Agreement ;
3.2 O ie ship of Property. DEVELOPER represents and covenants that it is the
legal and/or equitable 8v ner of the`fee simple titld\tothe Property or a portion thereof.
3.3 Apphcabla Law Except as oerwise specifically provided in this
Agreement,.the-rules,regulations, odinances;4resolutions, official policies, standards and
specifications of CITY;iri force and effect on the Vesting Date (the "Applicable Law") shall be
applied to the Project. Y
3.4 VestlnR of General Assessments and Fees. Except as expressly permitted by
this Agreem nt;CITY and any,entity or district under the control of CITY shall not,without the
prior written consent,of DEVELOPER, impose any Development Impact Fees, development
linkage fees, specialjUes,assessments,mitigation charges, or other fees including, without
limitation, applicable�`o the development of the Project or any portion thereof, or impose any
such fees, taxes, assessments or charges as a condition to the implementation of the Project or
any portion thereof, except for those fees, taxes, assessments and charges which are set forth in
Exhibit "E-1" hereto and incorporated herein, or such lower rates as may be applicable at the
time, during the first five (5) years of the term of this Agreement. Without limiting the effect of
the foregoing,DEVELOPER shall also be entitled to certain credits against the foregoing fees, to
the extent such amounts are for the funding, acquisition, or construction of the Public
Improvements, as set forth in Exhibit 11E-2" hereto and incorporated herein.
W02-WEST3MPB1\4023 674 8 1.1 -7-
3.5 Timely Processing. CITY shall timely process and grant all applications for
Subsequent Development Approvals that DEVELOPER deems necessary or desirable for the
efficient, orderly and economical development and use of the Project,provided all non-
discretionary requirements of Applicable Law are satisfied.
3.6 Permitted Uses Vested by this Agreement. The permitted uses of the
Property and other terms and conditions of development applicable to the Project, shall be as set
forth in the Project Approvals, the TSMDP, the Subsequent Development Approvals, Existing
Land Use Regulations, and this Agreement.
3.7 Protection of Vested Rights. To the maxi
ex permitted by law,
CITY shall take any and all actions necessary to ensure that DEVELOPER secures and benefits
from the vested rights provided by this Agreement and present any CITY=1 w, ordinance
resolution,rule, regulation, standard, directive, condition;fee, dedication, exaction, approval,
issuance,permit, zone change, amendment, land uses liange, or other measur&(collectively
referred to herein as "City Law") from invalidating or;p evailing�over, all or any pa cif this
Agreement or Applicable Law.
3.8 No Conflicting Enactments. CITY shall ptmpose on the Project or
otherwise approve any City Law that is mconflict with Applicable Law or this Agreement or
that reduces the development rights provided by his Agreement."' t
- 3.8.1 Deemed Conflicts. VUnthout limiting the generality of the
foregoing, any City Law or4approval shall bed"d to cofi l"6 with Applicable Law if it
conflicts with or reduces or�itelays the development rights and covenants provided by this
Agreement.
3.9 Initiatives e ndakand Moratoria.
1 C611flicting Laws. If any City Law is enacted or imposed by
initiative or referendum y,�the Crt Council, the electorate that would conflict with Applicable
Law�or Chats Agreement, orfeduce the de" lopment rights provided by this Agreement, such City
Law shalYnot�apply to the Pr`oj act.
3 9.2No Growth Moratoria or Restrictions. Without limiting the
g:
foregoing, and in partLcular the provisions of this Article 2,no moratorium, growth management
restriction, or sequencing`of development affecting the subdivision maps,building permits or
other entitlements that;are approved or to be approved, issued or granted by CITY, shall apply to
the Project.
3.9.3 Cooperation. To the maximum extent permitted by law, CITY
shall cooperate with DEVELOPER and shall undertake such actions as may be necessary to
ensure this Agreement remains in full force and effect.
W02-WBST:3MPB1\402367481.1 -8-
3.9.4 No Actions to Violate. CITY shall not support, adopt or enact any
City Law, or take any other action,which would violate the provisions of this Agreement or the
Project Approvals.
3.9.5 Further CEQA Review and Environmental Mitigation. The FEIR
for the Project was prepared following the completion of numerous studies. The FEIR is
intended to be used in connection with each of the Project Approvals and Subsequent
Development Approvals needed for the Project. Consistent with the CEQA policies and
requirements applicable to the FEIR and to the maximum extent allowedb�ylaw, CITY shall use
the FEIR for Subsequent Development Approvals consistent with this Agreement and the Project
Approvals and shall not impose on any Subsequent Development,Approvals or on the Project
any mitigation measures, other than those specifically imposed as condzt ons of the Project
Approvals and those identified in the FEIR.
j
3.9.6 Life of Subdivision Mans, Development Approval and Permits.
The term of each Project Approval and Subsequent Development Approval shall automatically
be extended for the longer of the term of this Agreement 6r�,the terffiotherwise applicable to such
Approval if this Agreement were no longer in effect. Furth§,Mn accordance with the provisions
of Government Code Section 66452.6, tentative subdivision'in ps or tentative parcel maps
heretofore or hereafter approved in connectlon»with developmenfi ofjhe Property shall be granted
an extension of time for the term of this Agreement,"including extensions, to the maximum
permitted by law without further review or approval-requirednfromjhe CITY.
3 9 7 Review of Subse' t Development Approval Applications.
CITY shall review andctron appiications for Subsequent Development Approvals in accordance
0%
with CITY's then existing or new rules, regulations,and policies. CITY may approve an
application for a SubsequentDevelopment Approval subject to any conditions necessary to bring
the Subsequent DevelopmentAproval into compliance with then current law. Any such
specified mod!Acatiofi must be consistent wifil then existing CITY rules, regulations and
policies,aid this Agreement.
3.9 & State and Federal Law. This Agreement shall not preclude the
application to the Project of changes iii laws, regulations,plans or policies, to the extent that such
changes are specifically mandated and required by changes in State or Federal laws or
regulations to preserve the immediate public health and safety("Changes in the Law"). As
provided in Sectiofi,6'869:Srof the Government Code, in the event Changes in the Law prevent
or preclude compliance,with one or more provisions of this Agreement, such provisions of the
Agreement shall be modified or suspended, or performance thereof delayed, as may be necessary
to comply with Changes in the Law.
3.10 Term of Agreement. The initial term of this Agreement shall commence on
the Effective Date, and shall continue for a period of Eight(8) years thereafter unless this term is
modified or extended pursuant to the provisions of this Agreement. Notwithstanding the
foregoing, the term of this Development Agreement may be extended subject to approval of the
W02-WEST:3MPB1\402367481.1 -9-
City Council for two terms of five (5) additional years, for land use approvals only, following
expiration of the initial term,provided the following have occurred:
3.10.1 DEVELOPER provides at least one hundred eighty(180) days
written notice to CITY prior to the expiration of the initial term;
3.10.2 DEVELOPER shall have obtained construction permits for the
grocery store anchor for Development Unit 1 of the commercial development contemplated by
the Project; and
� .6
3.10.3 DEVELOPER is not then in uncured default of this Agreement.
The vesting of General Assessments and Fees applicable to�the Project, asyset,forth in Section 3.5
hereof and Exhibit"E" hereto shall run independently of thMrm of this Agreemeent.
3.11 Timinsz of Project Construction arid,Completion.
3.11.1 No requirement. DEVELOPERS not required to initiate or
complete development of the Project or any particular phase(a,Development Unit) of the
Project within any particular period of t me, and CITY shall notimpose such a requirement on
any Project Approval or Subsequent Development Approval. Notwithstanding any terms stated
above, provided that once construction of a phase`(or L?evelopment niit) of the Project has
begun, DEVELOPER shall complete any public I ructuxe elated to that phase.
3.41 2�Timing. Except as set forth in'Subsection 3.11.1 above,
DEVELOPER may develop in accordance with its own time schedule and DEVELOPER shall
determine which part ofthe Property to develop first,;al°1 within the exercise of its subjective
business judgment. Subsequently adopted ordinances,resolutions, and initiatives purporting to
relate to,restrict oppontrol the tuning oftl e Pro ect shall not apply to the Project and shall not
prevail oveFtliis
3.12 Subdivision and Other Agreements. Nothing in this Agreement shall exempt
DEVELOPJ�A from completing work�required by a subdivision agreement or similar agreement
in accordance with the terms tli reof. CITY shall not require more work by DEVELOPER than
is required byhs Agreemenx or the Project Approvals.
3.13 Assi�ri lent.
Y-2.r
1.13.1 Right to Assign. DEVELOPER shall have the right to sell, transfer
or assign the Property in whole or in part, to any person,partnership,joint venture, firm or
corporation at any time during the term of this Agreement; provided,however, that any such
sale, transfer or assignment shall include the assignment and assumption of the rights, duties and
obligations arising under or from this Agreement and be made in strict compliance with the
following condition precedent:
W02-WEST:3MPB1\402367481.1 '10-
(a) No sale, transfer or assignment of any right or interest under this
Agreement shall be made unless made together with the sale, transfer or assignment of all
or a part of the Property.
(b) Fifteen(15)business days prior to any such sale,transfer or
assignment, DEVELOPER shall notify CITY, in writing, of such sale, transfer or
assignment and shall provide CITY with an executed agreement, in a form reasonably
acceptable to CITY,by the purchaser, transferee or assignee andproviding therein that
the purchaser, transferee or assignee expressly and unconditionally assumes all the duties
and obligations of DEVELOPER under this Agreement
(c) To the extent the sale, transfer or assignment complies with the
conditions set forth in(a) and(b)hereinabove, the,CITYshall approve the sale, transfer
or assignment in writing,which approval shall &unreasonably be'withheld, conditioned.
or delayed. The sale, transfer or assignment ofthis Agreement shall bF`e"eemed„approved
by City if not confirmed in writing within,,�,30 days following City's receiptofnotice
pursuant to subsection(b). � s y >
Any sale, transfer or assignment not made i stnct compliance with the foregoing
conditions shall constitute a default by DEVELOPER under this Agreement.Notwithstanding
„
the failure of any purchaser, transferee or a z
ssignee to execute the agreement required by
Paragraph(b) of this Subsection 3.13.1, theburdens of this Agreement shall be binding upon
77
such purchaser, transferee or assignee, but the,benefits" thx -Agr ement shall not inure to such
purchaser, transferee or assignee until and unle"s�such agreement is executed.
3P13.2 R 1`ease of Transferring DEVELOPER.Upon any sale, transfer or
assignment made pursuant to this Agreement, a transferring DEVELOPER shall no longer be
obligated under this Agreement upon the full satisfaction by such transferring DEVELOPER of
the followin condtions: E
(a) DEVELOPER no longer has a legal or equitable interest in all or
part of the Prop.64"y.
(b) `DEVELOPER has provided CITY with the notice and executed
agreement required under Paragraph(b) of Subsection 3.13.1 above.
I:/
O The purchaser, transferee or assignee provides CITY with security
equivalent to any'security previously provided by DEVELOPER to secure performance
of its obligations hereunder.
3.13.3 Subsequent Askimment. Any subsequent sale, transfer or
assignment following an initial sale, transfer or assignment shall be made only in accordance
with and subject to the terms and conditions of this Section.
W02-WEST:3MPB 1\402367481.1 -11-
3.13.4 Partial Release of Purchaser, Transferee or Assimnee of
Commercial Parcel. A purchaser, transferee or assignee of a parcel, which has been finally
subdivided and for which a commercial plot plan for development of the parcel has been finally
approved pursuant to the MMP,may submit a request, in writing, to CITY to release said
parcel from the obligations under this Agreement relating to all other portions of the Property.
Within thirty(30) days of such request, CITY shall review, and if the above conditions are
satisfied shall approve the request for release and notify the purchaser, transferee or assignee in
writing thereof. No such release approved pursuant to this Subsection 3��3.4 shall cause, or
otherwise affect, a release of DEVELOPER from its duties and obligdtior Gunder this
Agreement, unless DEVELOPER has satisfied the requirements of Subsection 3.13.2 of this
Section. Y` <
1
3.13.5 Termination of Agreement* th Respect to Individual Parcels
Upon Sale to Public and Completion of Construction :The provisions of Subsection 3.13.1 shall
not apply to the sale or lease (for a period longer than,one year) of any parcel*k, ch has been
finally subdivided and is individually(and not in�'bulk"),sold oreased. Notwithstazitding any
X. � � V
other provisions of this Agreement, this Agreement shall terminate with respect toA y parcel and
/
such parcel shall be released and no longer be subject to this Agreement without the execution or
recordation of any further document upon, atisfaction of both of the following conditions:
(a) The parcel has been fmally subdivi n individually(and not in
"bulk") sold or leased(for a period longer than onuear), arid,
(b) A Certificate of OGc p ncy hasubeen issued for a building on the
parcel, and the fees"set fortliunder Section4 of this Agreement have been paid.
3.14"Amendment or Cancellation of,, ement. This Agreement may be
amended or canceled in wihol�or inwpartonly by written consent of all parties. This provision
shall not lima ar_iyr)f— y o or DEVELOPER as provided by this Agreement.
3.15 Termination TAgreement shall be deemed terminated and of no further
effect�upon-the occurrence of'any o e;following events:
4
Expiration of the stated term of this Agreement as set forth in Subsection
3.11.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption
of the ordinance approg this Agreement.
(c) The adoption of a referendum measure overriding or repealing the
ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement
including issuance of all required occupancy permits and acceptance by CITY or applicable
public agency of all required dedications.
W02-WEST:3MPB1\402367481.1 -12-
r
(e) Termination of this Agreement based on any default of DEVELOPER and
following the termination proceedings required pursuant to any development agreement policies
and procedures adopted by the CITY and in force and effect on the Effective Date.
Termination of this Agreement shall not constitute termination of any other land
use entitlements approved for the Property. Upon the termination of this 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 Agreement which has occurred prior to such termin6tion'or with respect to any
obligations which are specifically set forth as surviving this Agreeni6 t. Upon such termination,
any public facilities and services mitigation fees paid pursuant to`Section 4 of this Agreement by
DEVELOPER to CITY for commercial development on which',construet�on has not yet begun
shall be refunded to DEVELOPER by CITY.
3.16 Notices. z'
3.16.1 As used in this Agreement, "notice"=includes,but i:, limited to,
the communication of notice, request, demand, approval, sta:ement,report, acceptance, consent,
waiver, appointment or other communication required or permuted hereunder.
m
3.16.2 All notices shalljbe m writing and r,'bOlconsidered given either:
(i)when delivered in person to the recipienN amed belbw; or(n) iil e date of delivery shown
on the return receipt, after deposit in the United StatesYmail in a,sealed envelope as either
registered or certified mail with°return receipt requested, and�postage and postal charges prepaid,
and addressed to the rectpieiit narned below; or( i) on the date of delivery shown in the records
s
of the telegraph comply after tr emission by telegraph to the recipient named below. All
notices shall be addressed as follows w}
i
If to CITY. John R. Harper, City Attorney
City of Grand Terrace Harper&Burns
22795,Barton Road; f 453 Glassell Street
Grand Teiiace, C g
�s`:�92313-5295 Orange, CA 92666
Attn: Citk'1Vlanager Telephone: (714) 771-7728
Telephone. 09)430-2226 Facsimile: (714) 744-3350
Facsimile (909) 783-2600
Copy to:
Joyce Powers,
Community and Economic Development
Director
W02-WEST:3MPB1\402367481.1 -13-
If to DEVELOPER: Sean Varner, Esq.
Stater Bros.Markets Varner&Brandt, LLP
301 South Tippecanoe Ave. 3750 University Avenue, Suite 610
San Bernardino, CA 92408 Riverside, CA 92501-3323
Telephone: (909) 733-5002 Telephone: (951) 274-7777
Facsimile: (909) 733-4002 Facsimile: (951) 274-7770
Attn: Mike Slaton
Copy to:
Jacobsen Family Holdings, LLCM
21800 Burbank Blvd., Suite 330 �"
Woodland Hills, CA 91367
Telephone: (818) 251-9911 �
Facsimile: (818)251-9912
Attn: Douglas Jacobsen �� w
3.16.3 Either party may,by notice "given at any time,require
subsequent notices to be given to another peson-cr entity, whetter arty or an officer or
representative of a party, or to a different address,or bo h.Notices"given before actual receipt
of notice of change shall not be invalidatedy the change:.
y ,
4. PROJECT DEVELOPMNgqT. '
4 1 ,Rights to De %el'op. Subject to the-terms of this Agreement, including the
Reservations of Authority;DEVELOPER shall ha�ue a vested right to develop the Property in
accordance with, and to the extent 6f;-the TSMDP. The Project shall remain subject to all
Subsequent Develii ntent Appra is required~to complete the Project as contemplated by the
TSMDP
4.2 EffectaAreernn Land Use Regulations. Except as otherwise
k
provided under�the terms of this Agreement"W , including the Reservations of Authority, the
rules, regulaf ons,and official- olicies governing permitted uses of the Property, the density
and intensity of us&of the Property, the maximum height and size of proposed buildings, and
the design, improve ent'a'd 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 TSMDP pursuant to the CITY's Site and Architectural Review process and Conditional
Use Permit process where specified by the TSMDP, and as provided by this Agreement
including,but not limited to, the Reservations of Authority.
4.3 Master Development Plan. It is the intent of the parties that
DEVELOPER shall commence development of the Project on or after the Effective Date in
W02-WEST:3MPB1\402367481.1 -14-
i
accordance with the Project Approvals. The Project shall be developed and completed in
conformance with the Project Approvals and any and all other plans, specifications and
similar development documents required by this Agreement, except for such changes as may
be mutually agreed upon in writing by and between DEVELOPER and CITY. CITY agrees
to approve preliminary and construction plans and preliminary and landscaping plans, if
consistent with the Project Approvals, subject only to CITY's Site and Architectural Review
process or Conditional Use Permit process where specified by the TSMDP.
4.3.1 DEVELOPER to Obtain all Proiect Approvals. For each phase
of the Project subsequent to Development Unit 1, DEVELOPER hall prepare and submit
complete development applications and any other required applieatzoq),document, fee, charge
or other item (including, without limitation, deposit, fund or surety)required for construction
or installation of the Project,pursuant to all Applicabl(;, a s and Projcct Approvals.
4.3.2 Proiect Changes If any revisions to the Prole&are required by
a governmental body, DEVELOPER shall promptl _-(qke any such revisions that aye(i)
generally consistent with the scope of development, 2` 'iyould not,result in any i serial
additional improvements not identified in the approved T„MDP, Project Approvals and
Subsequent Development Approvals; and,(iii)would not impose any material financial burden
on the Project,without DEVELOPER's'written consent thereto
4.3.3 Conditions of\Mp r- val.'Notwithstariding any provision to the
contrary in this Agreement, DEVELOPER agree&to'aceept andcomply fully with any and all
reasonable conditions of/approval applicable to-l' approv Is;�permits or other governmental
actions regarding the construction or installationof the Proiect that are both: (i) consistent
with this Agreemenf,"6 ,,(ii)woi#&11not result in any material additional improvements not
identified in the approvd&TSMD,,;Proiect Approvals and Subsequent Development
Approvals.
4.3.4 Pa'V'tnent of Costs and Fees. DEVELOPER and CITY agree
that CITY has not provided�and shalfnot provide any financial assistance or incentive to
DEVELOPER in connection,with the "onstruction or installation of the Project.
` 4,4 DEVELOPER Changes to Proiect Plans and Specifications Duriniz Course
of Construction DEVELOPER shall have the right, during the course of construction of the
Project, to make "rri hor field changes," with CITY approval, if such changes do not affect the
type of use to be conducted within all or any portion of a structure. "Minor field changes"
shall be defined as those changes from the approved construction drawings,plans and
specifications included in the Project Site Plan and Project Approvals that have no reasonable
effect on the Project and are made in order to expedite the work of construction in response to
field conditions. Nothing contained in this Subsection 4.4 shall be deemed to constitute a
waiver of or change in any approvals governing any such minor field changes or in any
approvals by any government body otherwise required for any such minor field changes.
However, in no case,may field changes be made to any aspect of the Project Site Plan and
W02-WEST:3MPB1\402367481.1 -15-
Project Approvals for which Incentive Bonus Points, as identified in"Exhibit F", were
granted.
4.5 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 numerous factors which are not within the control of
DEVELOPER, such as market orientation and demand, interest rates, absorption, completion
and other similar factors. The 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
.tuning or phasing
requirements set forth in the TSMDP which are required in order to provide for the orderly
development of the Property. a
4.6 Chanszes 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 desirab�e in the Project�App'ovals,
subject to the following: ;
4.6.1 Minor Changes and Adiust s. If and when the parties find
that minor changes or adjustments are necessary or appropriate to.,the Project or the TSMDP,
they shall, unless otherwise required by I N',""6ffectuate such chang s-dr adjustments through
administrative amendments approved by tke 4City-M,4nager, which; a ter execution, shall be
attached hereto addenda and become a part&reof;�and-may be- her changed and amended
from time to time as necessary;with approva byrthe City Ma"ager as may be requested by
DEVELOPER. Minor changes or adjustments`shall be those' which are consistent with the
overall intent of the`TSMDP an-10,ty,is Agreement,and which do not materially alter the overall
land uses,nature, scope, ntensity'df development;or�design of the Project.
4.6.2 ,,Unless otherw-1 erequired by law, as determined in CITY's
reasonab e iscrett a chang646 the Project Approvals shall be deemed"minor" and not
requareIn amendment"tothis Agreement provided such change does not:
I > 1 \
(a) `, .Alter the permitted uses of the Property as a whole; or,
v; (b) Significantly increase the density or intensity of use of the
Property as a-whole- or,
t (c) Significantly increase the maximum height and size of
permitted buildings; or, delete a requirement for the reservation or dedication of land
for public purposes within the Property as a whole; or,
(d) Constitute a project requiring a subsequent or supplemental
environmental impact report pursuant to Section 21166 of the Public Resources Code.
i
W02-WEST:3MPB1\402367481.1 -16-
(e) Impact the design quality which was a basis for Incentive Bonus
Points described in Exhibit"F" as determined by the City Manager.
4.7 Reservations of Authority.
4.7.1 Limitations, Reservations and Exceptions. Notwithstanding any
other provision of this Agreement, the following Subsequent Land Use Regulations shall
apply to the development of the Property:
(a) Processing fees and charges of ev�ry�kmd and nature imposed
by CITY to cover the estimated actual costs to CITY of rocessing applications for
Development Approvals or for monitoring comphancewith�any�Djevelopment
Approvals granted or issued.
(b) Procedural regulations�f le ating to hearing bodies;petitions,
applications,notices, findings, records, hearings, reports,recommendations,appeals
and any other matter of procedure, except as specifically set forth in the Barton Road
Specific Plan and this Agreement, and applicable tothe Project on the Effective Date.
Oc Re lations'• overnin construction standards and specifications
� � g .� g �, p
including, without limitation, the`GITX's,Building Code,Pl bing Code,Mechanical
Code, Electrical Code, Fire Code and Grading-Code. F � ;.
(d) Regulations wlich<`m"ay be"in.conflict with the TSMDP but
which are reasona ly necessary to proti��the public health and safety. To the extent
possible, any such regulations shall be applied and construed so as to provide
DEVELOPER�yMh the rights and assurances,provided under this Agreement.
xt
(e) ` Regulations wh}eh are not in conflict with the TSMDP, the
Projec provals or SVbkquent Projec Approvals. Any regulation whether adopted
y initiative' r otherwise;limiting�the rate or timing of development of the Property
shall be deemed to conflict witthe TSMDP and shall therefore not be applicable to
the�development of\.the Proporty.
(f) , Regulations which are in conflict with the TSMDP provided
DEVELOPER has given written consent, in its sole and absolute discretion, to the
application#of such regulations to development of the Property.
4.7.2 Subseauent Development Approvals. This Agreement shall not
prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent
Land Use Regulations which do not conflict with the TSMDP, the Project Approvals or this
Agreement, nor shall this 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 TSMDP, this Agreement or the
Project Approvals.
W02-WEST:3MPB1\402367481.1 -17-
4.7.3 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
Agreement,prevent or preclude compliance with one or more of the provisions of this
Agreement, such provisions of this Agreement shall be modified or suspended as may be
necessary to comply with such State or Federal laws or regulations;provided, however,that
this 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. ,yn�,,
4.7.4 Intent. The parties acknowledge aq agree that CITY is
restricted in its authority to limit its police power by contractsand that the foregoing
limitations,reservations and exceptions are intended to reserve to CITY all of its police power
� max.
which cannot be so limited. This 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.
4.8 Public Works. If DEVELOPER"is requir4l�.this Agreemqu to
construct any public works facilities which will be dedicatedo CITY or any other public
agency upon completion, and if required by applicable laws to do so, DEVELOPER shall
perform such work in the same manner`an&.subject to the same.iequirements as would be
j
applicable to CITY or such other public agency should it have undedaken such construction.
a< .
4.9 Life of Subdivision Map"s,Development Approvals and Permits. The
term of each Project Approval and SubsequeAUWroval, including without limitation,
subdivision maps, shall;a t mati%ally be extended for the longer of the term of this
Agreement (including any extensions) or the term otherwise applicable to such Approval if
this Agreement were na longer in effect. The terri%gf'this Agreement shall be extended by a
time period equal to the sum`ofanyperiods_oftime during which a development moratorium,
as defined iif e Aibin 66452 6(f j_of the Subdivision Map Act, is in effect.
4.10 Vestrn1�,Tentativ&Maps. If any tentative or final subdivision map, or
tentatie or final parcel map,�,heretoforc or hereafter approved in connection with
development of the Property,;is a vesting map under the Subdivision Map Act and if this
Agreement is determined by a final judgment to be invalid or unenforceable insofar as it
grants a vested to develop to DEVELOPER, then and to that extent the rights and
protections affordec �DEUELOPER under the laws and ordinances applicable to vesting maps
shall supersede the pro, ions of this Agreement. Except as set forth immediately above,
development of the Property shall occur only as provided in the TSMDP and this Agreement,
and the provisions in this Agreement shall be controlling over any conflicting provision,
including a provision of law or ordinance concerning vesting maps.
4.I l 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.
W02-WEST:3MPB 1\402367481.1 -18-
4.12 Development Impact Fees.
4.12.1 Amount and Components of Fee. The Development Impact
Fees applicable to the Project shall be those fees set forth in Exhibit "E-1" hereto, subject to
the credits/reimbursement set forth in Exhibit "E-2" hereto.
4.12.2 Time of Payment. The fees required to be paid by
DEVELOPER pursuant to this Agreement shall be paid to CITY pnorJ9 the issuance of the
applicable building permit for each commercial unit.
4.13 Credit.
� f
4.13.1 The CITY acknowledges that the DEVELOPER may be
required to pay certain fees, assessments and exactions vG"loch.may be expended for certain
public improvements and other public benefits, or to,construct certain public improvements
which will benefit lands within the CITY outside the Property s;,
4.13.2 The CITY shall credit D �k
LOPER in accordance with
Exhibit "E-2" herein. �m
4.14 Development Incentive-Bonuses01
4.14 1 Pursuant to the�Bartoi Road Specific Plan and the Project
Approvals; the CITY has granted develop me r incentive bonuses based upon the overall
merits of the Project. The ProJectsuccessfulyconsolidates multiple parcels and provides an
integrated plan, architecture and' ignage for development of Master Plan Area 1 of Planning
Area 1 of the Bart' 'Road,Specif,'Plan, and provides a number of other features and
amenities which exceed tY "CITjM s development standards and standards of the Barton Road
'
Specific Plan;sqch that the Pro�ec q ahfies for",Incentive Bonuses or Bonus Points in the
form of re axations"of development regulations, approved through the CITY's Site and
�,.
ArchiCectural Review process. TheProject Approval on July 27,2010 include a determination
that-the Project is entitled to?Incenti , onuses or Bonus Points,which may be used by the
DEVELOPER for Development Unt't 1 through 4, as more specifically set forth on Exhibit
nFn
5. REVIE"OR COMPLIANCE.
5.1 Pe fodic Review. The Community and Economic Development Director
shall review this Agfeement periodically as required by law, in order to ascertain the good
faith compliance by DEVELOPER with the terms of the Agreement.
W02-WEST:3MPB 1\402367481.1 -19-
5.2 Procedure.
5.2.1 During any periodic review, DEVELOPER may be required to
demonstrate good faith compliance with the terms of the Agreement. The burden of proof on
this issue shall be on DEVELOPER.
5.2.2 Upon completion of any periodic review, the Community and
Economic Development Director shall submit a report to the City Council of the CITY,
setting forth the evidence concerning good faith compliance by DEVELOPER with the terms
of this Agreement and his or her recommended finding on that issue.
5.2.3 If the City Council of the CIT {finds o he basis of substantial
evidence that DEVELOPER has complied in good faith with the terms and�conditions of this
Agreement,the review shall be concluded.
5.2.4 If the City Councif,of the CITY 'Makes a preliminarynding
that DEVELOPER has not complied in good faith wrth'the teAs and conditions�of this
Agreement, the CITY may pursue any remedy at law or equity for the breach of any provision
of this Agreement. "
6. DEFAULT AND REMEDIES.
Remedies in General. In genel, ch o :xl?e parties hereto may pursue any
remedy at law or equity available for the breach - any provision of this Agreement.
6.1 ,Spec fic Performance. The parties acknowledge that money damages and
remedies at law generally-are inadequate and speeifie`performance and other non-monetary
relief are particularly appzoprrat remedies for the;"enforcement of this Agreement and should
be available toall arties,based�oni the follog
y ,
(a) Due to the size?nature and scope of the project, it may not be practical
or possible to restore the�Property totri tural condition once implementation of this
Agreem6hfl.as 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 esources and performed extensive planning and processing of
the Project in agreeing to the terms of this Agreement and will be investing even more
significant time and"resour es in implementing the Project in reliance upon the terms of this
Agreement, and it is not�possible to determine the sum of money which would adequately
compensate DEVELOPER for such efforts.
6.2 Termination or Modification of Agreement for Default of DEVELOPER.
CITY may terminate or modify this Agreement for any failure of DEVELOPER to perform
any material duty or obligation of DEVELOPER under this Agreement, or to comply in good
faith with the terms of this Agreement (hereinafter referred to as "default"); provided,
however, CITY may terminate or modify this Agreement pursuant to this Section only after
W02-WBST:3MPB1\402367481.1 -20-
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 sixty(60)
days after the effective date of such notice or, in the event that such default cannot be cured
within such sixty(60) day period but can be cured within a longer time, has failed to
commence the actions necessary to cure such default within such sixty(60) day period and to
diligently proceed to complete such actions and cure such default.
6.3 Termination of Agreement for Default of CITY, ISELOPER may
terminate this Agreement only in the event of a default by CITY-Aft the performance of a
material term of this Agreement and only after providing writt not ee to CITY of default
setting forth the nature of the default and the actions, if any required y,CITY to cure such
default and,where the default can be cured, CITY has f;4l1.ed`toaake such actions and cure
such default within sixty(60) days after the effective/date of such notice or,in�,the event that
such default cannot be cured within such sixty(60)°d y period but can be cured within a
longer time,has failed to commence the actions.necessary to cure such default wlthTh such
YN
sixty(60) day period and to diligently proceed to complete such`"ctions and cure such default.
7. THIRD PARTY LITIGATIONS �N
7.1 General Plan and/or MU, Road Specific Plan Lit nation. CITY has
determined that this Agreement is consistek with its General Plaa,and the Barton Road
Specific Plan(collectively referred to as the "General Pla>< "), and that the General Plan meets
all requirements of law. DEVELOPER has r`eyieVied the d al Plan and concurs with
CITY's determination.'yr a 4
7.2�Third PartvLit ation Concemin�'Aueement. DEVELOPER shall
defend, at its expense, including attorneys' fees indemnify, and hold harmless CITY, its
agents, officers and employees from"""any clam i,;,4ction or proceeding against CITY, its agents,
officers, or employees o attack, set,aside,void, or annul the approval of this Agreement, or
shall relinquish the rightlito the entitlement that is subject to attack. CITY shall promptly
notify-EVELOPER of aye§uch claim;`action or proceeding, and CITY shall cooperate in
the defense ?'If CITY fails'to promptly notify DEVELOPER of any such claim action or
7
proceeding;or if CITY fails td cooperate in the defense, DEVELOPER shall not thereafter be
responsible to def end, indemnify, or hold harmless CITY. CITY may in its discretion and at
its own expense pa,,1cipate,;m the defense of any such claim, action or proceeding.
91
7.3 Reservation of Rights. With respect to Subsection 8.2, 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"have no obligation to
reimburse CITY for any such voluntary expenses incurred for such defense, including
attorneys' fees.
W02-WEST:3MPB1\402367481.1 -21-
8. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit DEVELOPER,
in any manner, at DEVELOPER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or other security
device securing financing with respect to the Property. CITY acknowledges that the lenders
providing such financing may require certain Agreement interpretations and modifications
and agrees upon request, from time to time, to meet with DEVELOPER and representatives of
such lenders to negotiate in good faith any such request for interpretation:or modification.
CITY will not unreasonably withhold its consent to any such requested interpretation or
modification provided such interpretation or modification is consist nt,with the intent and
purposes of this Agreement. Any Mortgagee of the Property shall be"entitled to the following
rights and privileges: ;.
(a) Neither entering into this Agreementrior a breach of this Agreement shall
defeat,render invalid, diminish or impair the hen o�f-gany mortgage on the Property made in
good faith and for value, unless otherwise required ",-Jaw..
(b) The Mortgagee of any mortgage or deed oftrust encumbering the Property, or
any part thereof, which Mortgagee, has' in tted a request idNmting to the CITY in the
manner specified herein for giving notices;shall be entitled to recivF*ritten notification
from CITY of any default by DEVELOPER,in�he;pdrformance of "EVELOPER's
obligations under this Agreement. -
.2.
c If CITY't`e1�xe"ceives a re uest from a morn a ee requesting a co of an
O " & q gg q g copy y
notice of default given to DEVE ( PER under the terms of this 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 1Vrortg�gee shall he the right,but not the obligation,to cure
��%� .
the default during-the remamm cure period aaffc�wed such party under this Agreement.
(d) N Any Mortgagee who comes into possession of the Property, or any part
thereon,pursuant to foreclosure of the m ortgage or deed of trust, or deed in lieu of such
foreclosure,--shall take the Eroperty,.,or part thereof, subject to the terms of this Agreement.
Notwithstanding any other in
of this Agreement to the contrary, no Mortgagee shall
have an obligation or duty under this Agreement to perform any of DEVELOPER's
obligations or othe ,firmative 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 cohidition 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 Subsection 3.13 of this Agreement.
W02-WEST:3MPB1\402367481.1 -22-
9. MISCELLANEOUS PROVISIONS.
9.1 Incorporation of Recitals. The Recitals of fact set forth preceding this
Agreement are true and correct and are incorporated into this Agreement in their entirety by
this reference.
9.2 Recordation of Agreement. This Agreement and any amendment or
cancellation thereof shall be recorded with the San Bernardino County,-Recorder by the City
Clerk within the period required by Section 65868.5 of the Governrneii"de.
� �7/
9.3 Entire Agreement. This Agreement sets fort�l and contains the entire
understanding and agreement of the parties, and there are no oral or wyftten representations,
understandings or ancillary covenants, undertakings or agreements which are not contained or
expressly referred to herein.
f's
9.4 Severability. If any term, pro_ ion, covenant or condition of, 5%
Agreement shall be determined by a final judicial determinatiato be invalid, vor
unenforceable,the remainder of this Agreement shall not lie affect d thereby to the extent
such remaining provisions are not rendered impractical to°perform taking into consideration
the purposes of this Agreement. Notwithstanding the foregoing;the provision of the public
benefits set forth in Section 2 of this A' Avis an essential'element of this Agreement,
{ and CITY would not have entered into this Agreeme�it but for such provisions, and therefore
in the event such provisions are conclusively determined to beinvalid, void or unenforceable,
this entire Agreement shall be null and void and of no forcefand effect whatsoever.
9.5 JAie'rpretation and Gove i 61, aw. This Agreement and any dispute
arising hereundershall be.goverd&d and interpret inpaccordance with the laws of the State of
California. This Agreement shall be construed as a%whole according to its fair language and
common meaning to achieve the"„objectives and purposes of the parties hereto, and the rule of
constructon they ec that a � iguities are be resolved against the drafting party shall
to
not be employed in interpreting his Agreement, all parties having been represented by
counsefin the negotiation and preparatio hereof.
z?9 6 Sectio admfzs. All section headings and subheadings are inserted for
convenience only-and shall not affect any construction or interpretation of this Agreement.
9.7 Sift6l`ar and Plural. As used herein,the singular of any word includes the
plural.
9.8 Joint and Several Obligations. If at any time during the term of this
Agreement the Property is owned, in whole or in part,by more than one DEVELOPER, all
obligations of such DEVELOPERS under this 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 parcel which has been finally
subdivided and sold to such DEVELOPER as a member of the general public or otherwise as
W02-WEST:3MPB1\402367481.1 -23-
i�
an ultimate user shall have any obligation under this Agreement except as provided under
Section 4 hereof.
9.9 Time of Essence. Time is of the essence in the performance of.the
provisions of this Agreement as to which time is an element.
9.10 Waiver. Failure by a party to insist upon the strict performance of any of
the provisions of this 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 waivepof:such party's right to
insist and demand strict compliance by the other party with the terms of this Agreement
thereafter.
9.11 No Third Partv Beneficiaries. This Agreement is mad&and entered into
for the sole protection and benefit of the parties and their successors and assigns. No other
person shall have any right of action based upon any provision of this Agreement.
9.12 Force Mai eure.Neither party shall be deemedRlo be in defaul where
failure or delay in performance of any of its obligations under this Agreement is caused by
floods, earthquakes, other Acts of God,fires,wars,riots or similar hostilities, strikes and other
labor difficulties beyond the party's contzbl;.(including the partyjs employment force),
government regulations, court actions (suah,as restraining orders t5x,,/j.p tions), or other
causes beyond the party's control. If any such events shall occur,thelerm of this Agreement
and the time for performance by either party of any,of its obligat ons hereunder may be
extended by the written agreejent of the parixes for the per�od'of time that such events
prevented such performrice,provided that theAve in of this Agreement shall not be extended
under any circumstances for mofe'than five (5) years.
L 4l
9.13 Mutual Covenants-,The covenanis contained herein are mutual covenants
and also constitute conditions to the concurred or subsequent performance by the party
benefited ereby=ofth&covenai is to be performed hereunder by such benefited party.
9.14 Successors in Inter`..os . The burdens of this Agreement shall be binding
upon,nd the benefits of this-,,A
greement shall inure to, all successors in interest to the parties
to this Agreement. All provisions of this 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.
9.15 Counterparts. This 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.
W02-WEST:3MPB1\402367481.1 -24-
9.16 Jurisdiction and Venue. Any action at law or in equity arising under this
Agreement or brought by a party hereto for the purpose of enforcing, construing or
determining the validity of any provision of this 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.
9.17 Protect as a Private Undertaking. It is specificallyjunderstood and agreed
by and between the parties hereto that the development of the Proje�ls a..private
development, that neither party is acting as the agent of the other xn any respect hereunder,
and that each party is an independent contracting entity with respectfto the terms, covenants
and conditions contained in this Agreement. No partnership;Jgint venture or other association
of any kind is formed by this Agreement. The only relationshipbetween(`.I�TY and
DEVELOPER is that of a government entity regulating"the development o �nv f ate property
and the DEVELOPER of such property.
9.18 Further Actions and Instruments' Each of/theparties shall cooperate with
and provide reasonable assistance to the other to the extent contemplated hereunder in the
performance of all obligations under this Agreement and the satisfaction of the conditions of
this Agreement. Upon.the request of etherparty at any time, the other parry shall promptly
execute, with acknowledgment or affidavilife onably required, an&file or record such
required instruments and writings and takeny actlonsias may be zeasonably necessary under
the terms of this Agreement to carry out the e provisions of this
Agreement or to evidence or eonsummate theransactions c templated by this Agreement.
9.19�g nt for Se vice of Process151n the event DEVELOPER is not a resident
of the State of Calfortua or itis anassociation,partrie'rship or joint venture without a
member,partner or jomt v�entur resident of the,, ate of California, or it is a foreign
corporation; m;,any such event,DEVELOPER shall file with the Community and
EconomieDeveloprlent Director,"upon its execution of this Agreement, a designation of a
nature, erson residinglb the State of California, giving his or her name,residence and
busiiies addresses, as its�agent for thpurpose of service of process in any court action
arising 6,ffb-or based upon this Agreement, and the delivery to such agent of a copy of any
process in any such action shall constitute valid service upon DEVELOPER. If for any reason
service of such process uppmsuch agent is not feasible, then in such event DEVELOPER may
be personally servee�with.such process out of this County and such service shall constitute
valid service upon I7�EV�EI OPER. DEVELOPER is amenable to the process so served,
submits to the jurisdiction of the Court so obtained and waives any and all objections and
protests thereto. DEVELOPER for itself, assigns and successors hereby waives the provisions
of the Hague Convention(Convention on the Service Abroad of Judicial and Extra Judicial
Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
9.20 Authority to Execute. The person or persons executing this Agreement on
behalf of DEVELOPER warrants and represents that he or she/they have the authority to
execute this Agreement on behalf of his or her/their corporation,partnership or business entity
W02-WEST:3MPB1\402367481.1 -25-
and warrants and represents that he or she/they has/have the authority to bind DEVELOPER
to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Development
Agreement on the last day and year set forth below.
DEVELOPER
Dated: JACOBSEN FAMILY TRUST, a
Califorma,Limited Liability Company
By
Douglas.,Jacobsen
Dated: STATER'IIROS. MARKETS, a
California Corporation
By.
., CIT)
Dated: ' -,-/CITY OF GRAND TERRACE, a
' California Municipal Corporation
By:
Maryetta Ferre,Mayor
ATTEST:
By.
City Clerk
APPROVED AS TO LEGAL FORM:
City Attorney
W02-WEST:3MPB1\40236748 1.1 -26-
�- Exhibit "A"
Property Description
1167-231-03
1167-231-15
1167-231-21
1167-231-13
1167-231-08
1167-231-09
���..
1167-231-12 .
Y N
Cx
W9T
r
t�
Ot
Ilk
Niggg
wR. ..
I �
W02-WEST:3MPB1\402367481.1. -27-
Exhibit "B"
Property Subject to Development Agreement
Michigan Street
MIN
F 4
"O Tony QA a
noti off
hO J Z� y
Ova
Bull.4
c.. z
W ,
a 1167 23.Iout yrW
W
01
SM
ARMS
a
3 z r W r
nix . , 1
N
_ i - �.► •►
------------
z.
r � �
1167 231 15
H i
1167 231-03
Part xO x
1167 231-01
Not a Part ^,a
3,
1:167 311 01 ,
chi V�Iw'0 WWI =Not a Part
11,67 311 ;02 Not a Part ` ,
I
W02-WEST:3MPB1\402367481.1 -28-
Exhibit "C"
Existing Development Approvals
Auuroved by the Plannine Commission uursuant to Site & Architectural Review:
Grand Terrace Town Square Master Development Plan- SA 07-12
Master Sign Program No 09-01
Master Development Unit Phasing Plan—SA 07-12
Master Grading and Preliminary Grading Plans—SA 07-12
Sign Program for Development Unit 1 —SA 07-07
Grading and Landscaping Plan for Development Unit 1 SA`07-07
Site Plan and Elevations for Site Plan for Development Uzatt:;" ,a"SSA 07-07W
r
Auuroved by the Citv Council:
Final Environmental Impact Report
Grand Terrace Town Square Master Devffioi,nent Plan SA 07 1°2 "
Master Development Sign Program 09-01
w
Sign Program for Development Unit 1 r`
Site and Architectural Review 07-07
Tentative Parcel Map No., -,7(0,8-01) ?'>
Auuroved by the GrandTe ,race RDA:
Developrnefit and Disposition`Agreement dated February 15, 2005, and related amendments and
Implementation Agreements. �.,
Y:
r jF
W02-WEST:3MPB1\402367481.1 -29-
Exhibit "D"
Existing Land Use Regulations
Grand Terrace Municipal Code, in effect on the Effective Date of this Agreement
Grand Terrace Zoning Map and Development Code
Grand Terrace General Plan and Barton Road Specific Plan
kh
S �
F
2
� 1
t;
K
W02-WEST:3MPB 1\402367481.1 -3 0'
Exhibit "E-1"
Development Impact Fees
The City Council finds that the following fees are reasonably related to the cost of providing
infrastructure or facilities necessitated by development. The Development Impact Fees which are
applicable to the Project. Pursuant to this Agreement, offset by the credits for preexisting
uses/capacity are as set forth in Exhibit "E-2":
Storm Drainage Facilities $.186/sf of commercial-pace«
a`
General Facilities $.117/sf of commereial�space
� r
Public Use Facilities $0.000 (no fee for commercial uses)
Parkland/Open Space Acquisition $.051/sf J ,
Sewer Connection Fees $3000/connection+ $60 for every drainage fixture
unit(DFU) in excess of 17 each \X
Arterial an&t%raffic Signal--,Fees,
The City has determinedIthatz4 e Arterial and Tr..affic Signal�,fransportation-related)
Development Impact Fees and fee categories applicable to the Project are as follows:
V } r
Arterial Fees 19524 per 1,000 sf of gross leasable area
Traffic Signal Fees $ 840 per 1 00 sf of gross leasable area
Theaboureferenced Development Impact, Arterial and Traffic Signal Fees may be reviewed by
the City Clouncil commenc ng in the sixth(6th) year following the Effective Date of this
Agreementkndevery two years thereafter, and may be increased by the Consumer Price Index
factor then applied-by the City t{o each category of fees until such time as the fees are the same
(but not more than)hose in,(effect City-wide for the same improvements or services. The intent
of this provision is td dll'ow4t/1he gradual increase of Development Impact Fees applicable to the
Project consistent witl ' Iction 3.5 of this Agreement.
W02-WEST:3MPB1\402367481.1 -31-
Exhibit "E-2"
Credits/Reimbursement
In accordance with the findings and methodology of the Revenue & Cost Specialists,
Study prepared in 2005 and 2006, the City Council finds and determines that credit
should be given in the following categories of improvements/services for which
Development Impact Fees are collected by the City to recognize the contribution made by
preexisting development on the Property, or where it has been demonstrated that the
Project will not contribute any new requirement for additionaItapacity or infrastructure,
as indicated below:
� � a
Storm Drainage Facilities lOQ/ocreditl
General Facilities 100% credit2 ._.
Public Use Facilities $0�:00(}(no`fee for commercial uses)
Parkland/Open Space Acquisition 100%,dedit3
Sewer Connection Fees Z� � �100% credit
The credits set forth aboyewshall apply to th Proj c throughbuildout of DU 4.
�l
'4101
1 Justification Drainage:is retained on site, and previous uses contributed their fair share
to�the�existing system, hich was,-overbuilt at the time of the RCS Study. Project
contribution in this category is satisfied through buildout of DU 4.
2 Justificati n: Pre-existuig high density(mobilehome park, residential and commercial
uses) contributed their faif'share of general facilities; Project use is less intense then prior
uses on Property ProJ.ecf contribution in this category is satisfied through buildout of
DU 4.
i r
3 Justification: Pre-existing, high density(mobilehome park,residential and commercial
uses) contributed their fair share ofparkland/open space; Project use is less intense than
prior uses on Property. Project contribution in this category is satisfied through buildout
of DU 4.
4 The Project should be credited for capacity purchased in the system by previous
residential and commercial uses on the Property, in accordance with Section 4.68.040 of
the Municipal Code. The Project has been found to have excess reserved capacity in the
City's current wastewater treatment facilities through buildout of DU 4.
W02-WEST:3MPB1\402367481.1 —32—
Exhibit "F"
Incentive Bonuses for Development Units 1 through 4
Page 1
The following methodology allocates Bonus Incentive Points to each element of the
Project which either falls into a specific category established by the Barton Road Specific
Plan for such allocation(e.g., lot consolidation, reciprocal access and reduced access
points, integrated design and architecture), or as proposed by the Development where the
Project exceed the Barton Road Specific Plan standards within aparticul-ar phase (e.g.,
enhanced landscaping,pedestrian amenities, enhanced design detail).
/ r
Bonus Incentive Points for Master Development Plan(Ap_lasesl `` ,, Points
Allocation
Y � \,I"Proposed Recommended
Consolidated lots into single master plan(Master Plan�Area
1 of Planning Area 1 of the BRSP) in a single integrated 20 20
Plan ;
Reciprocal Access and reduced access,,points ozn �I 10 10
p P
Reciprocal parking for access within phded develo-Went I 10 I 10
Master design and integrated style �' g` I 10 5
Master sign prograa;�itegr�`ated,style/consolidated 10 5
face/reduced numhe,
Total-Bonus Points/All Phases 60 50
BoniffIncentives Points, or Phased (Development Units 1 &2 Points
Allocation .'
Provis!6oAI of public or semi public'pedestrian open space 5 5
Covered trellis with landscaping and pedestrian walkway 5 5
(enhanced focal°point)
/-
Scored pattern/decgratv6 sidewalks at store fronts I 5 5
N:
Enhanced landscali g in parking lot areas 5 5
Total Bonus Points/Phase 1 I 20 20
Total Bonus Points TSMDP +Phase 1 80 70
Based on the points allocation set forth above, the entire project is entitled to 70 Bonus
Incentive Points, 50 of which attach to the Master Development Plan as a whole, and 20
of which are accrued within Phase 1.
W02-W EST:3MPB 1\402367481.1 -3 3-
r' Exhibit "F"
Incentive Bonuses for Development Units 1 through 4
Page 2
Proiect features which exceed City standards and for which Incentive Bonuses are
requested in the form of reduced standards:
Proposed Recommended
Increased building (tower) height for Stater Bros. Market
Off-setting consideration: Tower is not occupied space, and / 3 -3
adds articulation of building surfaces, distinguishes anchor"(,,/ `
Stater Bros. and adjacent parking lot lighting height
Off-setting consideration: Tenant height requirement;
redesign to mitigate with City-standard lights along -5 7
perimeter; design avoids "hot-spots".in parking fields and
reduces number of lighting elements in parking fields; ,n
Queuing at Driveway No. 1: Allow one vehicle (20 feet)"
queuing, add signage "No stopping`rstanding; direct to -3 -5
alternate access"
Total Bonus`Pomfs D,,educted I ;�-i l I -15
Balance of Bonus Poin�§ emaizurig 1 69 I 55
Future Phases Under the Barton Road Specific an and this methodology, the
Developer may seek,andreceiae additional Bonus Points in connection with
development-of future phases/The allocatlon and use of Bonus Points will be approved
pursuant-to�Site,and:Architect ural�Review.
/7
1,
W02-WEST:3MPB 1\40236748 1.1 -34-