HomeMy WebLinkAbout020519 Agenda - Special MeetingCity Council Agenda
SPECIAL MEETING
Tuesday, February 5, 2019
Closed Session - 5:00 p.m. – Room CC-8
Special Meeting – 5:30 p.m.
The Government Center
South Coast Air Quality Management District/
Main Auditorium
21865 Copley Drive, Diamond Bar, CA 91765
CAROL HERRERA
Mayor
STEVE TYE
Mayor Pro-Tem
ANDREW CHOU
Council Member
RUTH M. LOW
Council Member
NANCY A. LYONS
Council Member
City Manager Dan Fox • City Attorney David DeBerry • City Clerk Tommye Cribbins
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available for public inspection. If requested, the agenda will be made available in an alternative format to a person with
disability as required by Section 202 of the Americans with Disabilities Act of 1990. If you have questions regarding an agenda
item, please contact the City Clerk at (909) 839-7010 during regular business hours.
In an effort to comply with the requirements of Title II of the A mericans with Disabilities Act of 1990, the City of Diamond Bar
requires that any person in need of any type of special equipment, assistance or accommodation(s) in order to communicate at
a City public meeting, must inform the City Clerk a minimum of 72 hours prior to the scheduled meeting.
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DIAMOND BAR CITY COUNCIL MEETING RULES
Welcome to the meeting of the Diamond Bar City Council. Meetings are open to the public and
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Members of the public may address the Council on any item of business on the agenda during
the time the item is taken up by the Council. In addition, members of the public may, during the
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The Mayor may adjust this time limit depending on the number of people wishing to speak, the
complexity of the matter, the length of the agenda, the hour and any other relevant
consideration. Speakers may address the Council only once on an agenda item, except during
public hearings, when the applicant/appellant may be afforded a rebuttal.
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conduct of the meeting may result in the speaker being removed from the Council chambers.
INFORMATION RELATING TO AGENDAS AND ACTIONS OF THE COUNCIL
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chambers. The City Council may take action on any item listed on the agenda.
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CITY OF DIAMOND BAR
CITY COUNCIL AGENDA
February 05, 2019
Next Resolution No. 2019-02
Next Ordinance No. 02(2019)
CLOSED SESSION: 5:00 p.m., Room - CC-8
PUBLIC COMMENTS:
Closed Session Pursuant to Government Code Section
54956.9(d)(1)
Conference with legal counsel – existing litigation
City of Diamond Bar v. City of Industry, et al Los Angeles Superior
Court Case No. BS173224.
City of Diamond Bar v. City of Industry, et al Los Angeles Superior
Court Case No. BS171295.
City of Diamond Bar v. Oversight Board of the Successor Agency to
the Industry Urban-Development Agency, et al, Sacramento
Superior Court Case No. 34-2017-8000027 17-CY-WM-GDS.
Closed Session Pursuant to Government Code Section
54956.9(d)(2)
Conference with legal counsel – anticipated litigation (one case).
CALL TO ORDER: 5:30 p.m.
PLEDGE OF ALLEGIANCE: Mayor
FEBRUARY 5, 2019 PAGE 2
ROLL CALL: Chou, Low, Lyons, Mayor Pro Tem
Tye, Mayor Herrera
APPROVAL OF AGENDA: Mayor
1. PUBLIC COMMENTS:
Public Comments" is the time reserved on each regular meeting agenda to
provide an opportunity for members of the public to directly address the Council
on Consent Calendar items or matters of interest to the public that are not
already scheduled for consideration on this agenda. Although the City Council
values your comments, pursuant to the Brown Act, the Council generally cannot
take any action on items not listed on the posted agenda. Please complete a
Speaker's Card and give it to the City Clerk (completion of this form is voluntary).
There is a five-minute maximum time limit when addressing the City Council.
2. COUNCIL CONSIDERATION:
2.1 CONSIDERATION OF A SETTLEMENT AGREEMENT WITH THE CITY
OF CHINO HILLS AND THE CITY OF INDUSTRY REGARDING TRES
HERMANOS RANCH; APPROVING AN AMENDED AND RESTATED
TRES HERMANOS CONSERVATION AUTHORITY JOINT POWERS
AGREEMENT; AND APPOINTING REPRESENTATIVES TO SERVE AS
DIRECTORS AND ALTERNATE ON THE BOARD OF DIRECTORS OF
THE TRES HERMANOS CONSERVATION AUTHORITY.
Recommended Action: It is recommended that the City Council take the
following actions:
A. Adopt Resolution No. 2019-02 approving, and authorizing the City
Manager to execute, the Settlement Agreement and the Amended
and Restated Tres Hermanos Conservation Authority Joint Powers
Agreement (“Tres Hermanos JPA”) with the City of Chino Hills and
the City of Industry regarding Tres Hermanos Ranch, and finding
that approval or Resolution No. 2019-02 is categorically exempt
from the California Environmental Quality Act pursuant to Title 14,
California Code of Regulations, Sections 15325(a) and 15301;
B. Authorize the City Manager to take other actions necessary to
implement the Settlement Agreement and the Tres Hermanos JPA;
C. Appropriate $1,205,033 from the General Fund for Diamond Bar’s
contribution to the purchase of Tres Hermanos Ranch if such
purchase is approved by the newly constituted Tres Hermanos
Conversation Authority (“Authority”); and
FEBRUARY 5, 2019 PAGE 3
D. Appoint Mayor Carol Herrera and Mayor Pro Tem Steve Tye as the
Diamond Bar Directors, and Council Member Nancy Lyons as the
Diamond Bar Alternate Director to serve on the Authority’s Board of
Directors.
Requested by: City Manager
3. ADJOURNMENT:
Agenda #: 2.1
Meeting Date: February 5, 2019
TO: Honorable Mayor and Members of the City Council
FROM: Daniel Fox, City Manager
TITLE: CONSIDERATION OF A SETTLEMENT AGREEMENT WITH THE CITY
OF CHINO HILLS AND THE CITY OF INDUSTRY REGARDING TRES
HERMANOS RANCH; APPROVING AN AMENDED AND RESTATED
TRES HERMANOS CONSERVATION AUTHORITY JOINT POWERS
AGREEMENT; AND APPOINTING REPRESENTATIVES TO SERVE
AS DIRECTORS AND ALTERNATE ON THE BOARD OF DIRECTORS
OF THE TRES HERMANOS CONSERVATION AUTHORITY.
STRATEGIC
GOAL: Open, Engaged & Responsive Government
RECOMMENDATION:
It is recommended that the City Council take the following actions:
A. Adopt Resolution No. 2019-02 approving, and authorizing the City Manager to
execute, the Settlement Agreement and the Amended and Restated Tres
Hermanos Conservation Authority Joint Powers Agreement (“Tres Hermanos
JPA”) with the City of Chino Hills and the City of Industry regarding Tres
Hermanos Ranch, and finding that approval or Resolution No. 2019 -02 is
categorically exempt from the California Environmental Quality Act pursuant to
Title 14, California Code of Regulations, Sections 15325(a) and 15301;
B. Authorize the City Manager to take other actions necessary to implement the
Settlement Agreement and the Tres Hermanos JPA;
C. Appropriate $1,205,033 from the General Fund for Diamond Bar’s contribution to
the purchase of Tres Hermanos Ranch if such purchase is approved by the
newly constituted Tres Hermanos Conversation Authority (“Authority”); and
D. Appoint Mayor Carol Herrera and Mayor Pro Tem Steve Tye as the Diamond Bar
Directors, and Council Member Nancy Lyons as the Diamond Bar Alternate
Director to serve on the Authority’s Board of Directors.
2.1
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FINANCIAL IMPACT:
Diamond Bar’s contribution toward the purchase of the Tres Hermanos Ranch by the
Authority is $1,205,033. The City Council will need to appropriate these funds for the
acquisition. The City’s share of the Authority’s annual maintenance costs will be
determined through the budget process and is currently estimated at approximately
70,000 annually. An appropriation for the City’s share of the Authority’s maintenance
costs will be subject to further action by the City Council at a subsequent meeting.
BACKGROUND:
Tres Hermanos Ranch includes approximately 2,445 acres of undeveloped open space
located within the cities of Diamond Bar and Chino Hills. It has historically been used
for ranching, farming and cattle grazing, although in recent years the use has been
limited chiefly to cattle grazing. There is also a reservoir on the Tres Hermanos Ranch.
Approximately 695 acres of the Tres Hermanos Ranch are located within the
boundaries of Diamond Bar, and approximately 1,750 acres are located within the
boundaries of Chino Hills as is depicted in Attachment 1.
On February 3, 1978, Industry acquired Tres Hermanos Ranch and later that same year
transferred it to the Industry Urban-Development Agency (“RDA”), which was the
redevelopment agency established in Industry. In 2011 the Tres Hermanos Ranch was
transferred from the RDA to Industry. In 2012, the Tres Hermanos Ranch was
transferred from Industry to the Successor Agency as required by the Redevelopment
Dissolution Act of 2011—State legislation which provided for the dissolution and winding
down of the affairs of all redevelopment agencies in California.
In 2014, the State Department of Finance approved the Long Ranch Property
Management Plan (“Plan”) for the Successor Agency, which Plan governs the disposal
of property assets owned by the Successor Agency as set forth in the Redevelopment
Dissolution Act. The Tres Hermanos Ranch was included in that Plan.
During a period beginning in 2016, the City of Industry and San Gabriel Water & Power,
LLC (“San Gabriel”), took various actions to enter into a ground lease whereby the City
of Industry would lease various properties it owned, including the Tres Hermanos
Ranch, to San Gabriel for development of a massive solar facility (the “Master Lease”).
Inclusion of the Tres Hermanos Ranch in the Master Lease was subject to a condition
precedent that the City of Industry, in its sole discretion, purchase Tres Hermanos
Ranch by December 31, 2018. The Master Lease provides that if the City of Industry
made this purchase, that it would be amended to include the Tres Hermanos Ranch.
Industry did not elect to purchase Tres Hermanos Ranch by that date.
In August 2017, the Oversight Board to the Successor Agency approved the sale of
Tres Hermanos Ranch to the City of Industry, but placed a deed restriction on the Tres
Hermanos Ranch limiting uses to open space, public use or preservation (the “Deed
Restriction”). In response to that action, the approval of the Master Lease and
anticipating that the City of Industry might claim the solar facility described in the Master
Lease was allowed under the Deed Restriction, Diamond Bar and Chino Hills filed six
lawsuits collectively in Sacramento and Los Angeles counties, challenging on various
2.1
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grounds, among other things, the sale of Tres Hermanos Ranch by the Successor
Agency to the City of Industry and the Master Lease (the “Litigation”).
ANALYSIS:
The cities of Diamond Bar and Chino Hills entered into settlement discussions with the
City of Industry in an effort to resolve Diamond Bar’s and Chino Hill’s outstanding
concerns regarding the future of Tres Hermanos Ranch. All three cities ultimately
agreed that the Tres Hermanos Ranch provides important environmental, educational,
and recreational resources to the community and region. It was also determined that
the most prudent method to protect these resources and the interest of each respective
jurisdiction would be to transfer ownership of the Tres Hermanos Ranch to the re -
constituted Authority, in which all three cities would have representation on a Board of
Directors. Through the Authority, the planning and coordination for the long-term use of
the Tres Hermanos Ranch will allow for a more community-based approach to any
proposed future use consistent with open space preservation, the existing conditions on
the Tres Hermanos Ranch and the Deed Restriction.
To resolve the Litigation, the proposed Settlement Agreement (included as Attachment
2) will provide for the following:
The existing Tres Hermanos Conservation Authority Joint Powers Agreement will
be amended and restated to create a newly re -constituted Tres Hermanos
Conservation Authority pursuant to the Joint Powers Act, Government Code
sections 6500 et seq., (the “Tres Hermanos JPA”), which Authority will, among
other things:
Include the cities of Chino Hills, Diamond Bar and Industry as Members of the
Authority;
Create a Seven (7) member governing Board of Directors comprised of two
2) Council Members from Chino Hills, two (2) Council Members from
Diamond Bar and three (3) Council Members from Industry;
Provide that any proposed use of the property must be approved by the
Board of Directors and be consistent with the Deed Restriction and applicable
land use regulations of the cities of Chino Hills and Diamond Bar; and
Include additional provisions for administration, voting rights, budgeting, and
distribution of operating revenue and expenses concerning the Authority.
The City of Industry will acquire Tres Hermanos Ranch from the Successor
Agency in the amount of $41,650,000.
The City of Industry will transfer Tres Hermanos Ranch to the Authority for the
purchase price of $41,650,000.
The cities of Chino Hills and Diamond Bar will collectively deposit into escrow,
10% of the Tres Hermanos Conservation Authority’s purchase price, i.e.,
4,165,000 ($1,205,033 of which is Diamond Bar’s share), toward the acquisition
2.1
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of the Tres Hermanos Ranch by the Authority. At close of escrow this amount
will be transferred to the City of Industry, which will be credited with the balance
of the purchase price as its contribution toward the Authority’s acquisition.
The Tres Hermanos Ranch will be transferred to the Authority subject to the
Deed Restriction, limiting the use for “open space, public use or preservation”.
The conditions under which the cities of Chino Hills and Diamond Bar will
conditionally and ultimately with prejudice, dismiss the Litigation.
As is set forth in more detail in the attached Resolution, the Settlement Agreement,
creation of the Authority, and transfer of Tres Hermanos Ranch to the Authority will for
the reasonably foreseeable future, result in maintaining the Tres Hermanos Ranch in its
current existing condition. The three cities do not have any existing or contemplated
plans for any development of Tres Hermanos Ranch or addition to or subtraction from
any current uses thereon. Acquisition by the Authority and adoption of the Tres
Hermanos JPA will ensure that local land use authority, such as zoning and general
plan designation, remains with and will be subject to, the cities of Chino Hills and
Diamond Bar as it is currently. Any proposed future uses of Tres Hermanos Ranch will
be subject to the approval of the Authority’s Board of Directors and must be consistent
with both the Deed Restriction and the applicable land use regulations of the cities of
Chino Hills and Diamond Bar. Through contributions made by the Authority’s Members,
the maintenance of Tres Hermanos Ranch by the Authority will be continued as it is
presently.
The approval of the Settlement Agreement and Tres Hermanos JPA requires approval
by the city councils of the cities of Chino Hills and Industry, which will be concurrently
considering these actions along with Diamond Bar. If approved by all three cities, the
Authority will then meet to consider the purchase and sale agreement transferring Tres
Hermanos Ranch from the City of Industry to the Authority.
LEGAL REVIEW:
City Attorney has reviewed and approved as to form the Settlement Agreement and
related documents.
PREPARED BY:
Attachments:
2.1
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1. 2.1.a Tres Hermanos Ranch Vicinity Map
2. 2.1.b CC Reso 2019-02
3. 2.1.c Exhibit 1 - Tres Hermanos Settlement Agreement
2.1
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Tres H ermanos
0 2,500 5,000
Feet
This map shall not be reproduced or distri buted wit hout
prior written consent Copyright 2018: City of Diamond Bar
Tre s Herm ano s
City Bo und ary
Parks
Schools
þ60
2.1.a
Packet Pg. 11
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1379303.1
RESOLUTION NO. 2019-02
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DIAMOND
BAR APPROVING A SETTLEMENT AGREEMENT WITH THE CITY OF
CHINO HILLS AND THE CITY OF INDUSTRY; APPROVING AN
AMENDED AND RESTATED TRES HERMANOS CONSERVATION
AUTHORITY JOINT POWERS AGREEMENT; APPOINTING
REPRESENTATIVES TO SERVE AS DIRECTORS AND ALTERNATE ON
THE BOARD OF DIRECTORS OF THE TRES HERMANOS
CONSERVATION AUTHORITY; AND NOTICE OF CEQA EXEMPTION
REGARDING SAME
WHEREAS, the Successor Agency to the Industry Urban -Development Agency
the “Industry Successor Agency”) is the owner of certain real property which consists of
Assessor Parcel Numbers: 8701-021-271, 8701-022-270 and 8701-022-273 in Los
Angeles County, and 1000-011-19, 1000-011-20, 1000-011-21, 1000-011-22, 1000-
021-13, 1000-021-14, 1000-031-14 and 1000-031-15 in San Bernardino County,
commonly known as, and hereinafter referred to as, "Tres Hermanos Ranch"; and
WHEREAS, the Oversight Board of the Industry Successor Agency (the “Oversight
Board”) was established pursuant to California Health and Safety Code Section 34179 to
review and make determinations regarding various actions taken by the Industry
Successor Agency; and
WHEREAS, the Industry Successor Agency and Oversight Board approved the
sale of Tres Hermanos Ranch to the City of Industry in the amount of $41,650,000, and
required as a condition of such approval that a deed restriction limiting the use of the Tres
Hermanos Ranch to open space, public use, or preservation be included in the grant deed
conveying Tres Hermanos Ranch to Industry (the “Deed Restriction”); and
WHEREAS, the City of Industry entered into a Master Lease agreement and
amendments thereto, with San Gabriel Water and Power, LLC (the “Master Lease”), in
which the City of Industry ("Industry") agreed to lease to San Gabriel Water and Power,
LLC (“San Gabriel”), various properties it owns, or might in the future own, including the
Tres Hermanos Ranch, to develop a large solar facility, provided that certain conditions
precedent were met; and
WHEREAS, the Master Lease provides that Industry and San Gabriel would
amend the Master Lease to include the Tres Hermanos Ranch in the leased property,
provided that Industry elected, in its sole discretion, to acquire the Tres Hermanos Ranch
no later than December 31, 2018; and
2.1.b
Packet Pg. 12
Resolution No. 2019-02
2
1379303.1
WHEREAS, the cities of Chino Hills and Diamond Bar filed six lawsuits in
Sacramento and Los Angeles counties challenging, among other things, the sale of Tres
Hermanos Ranch by the Industry Successor Agency to Industry, the Oversight Board’s
approval thereof, and the Master Lease, on various grounds set forth in the lawsuits
collectively, the “Tres Hermanos Lawsuits”); and
WHEREAS, the cities of Chino Hills, Diamond Bar and Industry (collectively, the
Cities”) entered into settlement discussions to resolve the Tres Hermanos Lawsuits; and
WHEREAS, based on those discussions, the Cities have expressed their desire to
resolve the Tres Hermanos Lawsuits in the manner set forth in that certain Settlement
Agreement and Mutual Releases, a true and correct copy of which is attached to this
Resolution as Exhibit 1 and incorporated fully herein by this reference (the “Tres
Hermanos Settlement Agreement”).
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Diamond
Bar as follows:
Section 1. Recitals. The City Council finds the recitals set forth in this
Resolution to be true and correct.
Section 2. Settlement Agreement. The City Council approves the Tres
Hermanos Settlement Agreement and authorizes the City Manager to execute same and
to execute and take such further actions as may be necessary that are consistent with
and necessary to enter into the Tres Hermanos Settlement Agreement.
Section 3. Joint Powers Agreement. The City Council approves the Amended
and Restated Tres Hermanos Conservation Authority Joint Powers Agreement , a true
and correct copy of which is attached as Exhibit “A” to Exhibit 1 of this Resolution (the
Tres Hermanos JPA”), and authorizes the City Manager to execute same and to execute
such other documents and take such further actions as may be necessary to make
effective and implement the Tres Hermanos JPA.
Section 4. Appointment of Directors. Mayor Carol Herrera and Mayor Pro
Tem Steve Tye are appointed to serve as directors, and Council Member Nancy Lyons is
appointed to serve as the alternate , on the Board of Directors of the Tres Hermanos
Conservation Authority (the “Conservation Authority”), and to exercise such powers as
are set forth in the Tres Hermanos JPA.
Section 5. Environmental Determination.
A. Pursuant to the Settlement Agreement, Industry will acquire Tres Hermanos
Ranch from the Industry Successor Agency subject to the Deed Restriction. Upon
recording of a grant deed transferring Tres Hermanos Ranch from the Industry Successor
Agency to Industry, Industry will immediately transfer Tres Hermanos Ranch to the
Conservation Authority by grant deed in accordance with a purchase and sale agreement
2.1.b
Packet Pg. 13
Resolution No. 2019-02
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1379303.1
between Industry and the Conservation Authority, a true and correct copy of which is
attached as Exhibit “B” to Exhibit 1 of this Resolution (the “PSA”).
B. The transfer of Tres Hermanos Ranch to the Conservation Authority is
subject to the approval of the Conservation Authority’s Board of Directors, which is
scheduled to convene its first meeting on February 7, 2019, to consider the approval of
the PSA.
C. Tres Hermanos Ranch includes approximately 2,445 acres of land,
approximately 1,750 acres of which are located within the jurisdiction of the City of Chino
Hills ("Chino Hills") and 695 acres within the jurisdiction of the City of Diamond Bar
Diamond Bar"). Tres Hermanos Ranch is primarily open space, with minor ancillary
uses such as the Arnold Reservoir, residence for a caretaker and cattle grazing. For over
40 years, Tres Hermanos Ranch has been owned by either Industry or the Industry
Successor Agency.
D. As set forth in the general plans of Diamond Bar and Chino Hills, Tres
Hermanos Ranch consists of non-native grasslands used primarily for grazing and
agriculture, a freshwater emergent wetland, Southern Willow Scrub, pockets of Coastal
Sage Scrub, considered sensitive habitat by the California Department of Fish and
Wildlife, Sycamore Alluvial Woodland and Coast Live Oak Woodland. In addition, the
Chino Hills general plan has identified the Western Pond Turtle as being identified around
the Arnold Reservoir and as a state species of concern. It identifies several potential
historical resources such as structures and/or artifacts associated with the Tres
Hermanos Adobe, a multi-arch dam and the Arnold Reservoir. Although public access to
Tres Hermanos Ranch is limited, it is believed that Tres Hermanos Ranch is home to
mule deer, mountain lions, bobcats and other animal and bird species native to this part
of Southern California.
E. If the Conservation Authority’s Board of Directors approves the PSA, Tres
Hermanos Ranch will be transferred to the Conservation Authority subject to the Deed
Restriction. As set forth in the Tres Hermanos JPA, the general purpose of the
Conservation Authority is to “… coordinate the overall conservation, use and potential
improvement of the Ranch through collaboration by its Members….” As set forth more
fully in the Tres Hermanos JPA, any proposed use of Tres Hermanos Ranch will require
the approval of the Conservation Authority’s Board of Directors and must be consistent ,
as applicable, with the current zoning and general plan designations of Chino Hills and
Diamond Bar, as well as the Deed Restriction. The Conservation Authority will operate,
repair and maintain Tres Hermanos Ranch and existing tangible property or facilities
located thereon, in accordance with its general purpose and the Deed Restriction.
Administration of the Conservation Authority and funding therefore will be shared
obligations of the Cities.
F. There are no proposed new uses, new improvements or major alterations
contemplated on Tres Hermanos Ranch for the foreseeable future.
2.1.b
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Resolution No. 2019-02
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1379303.1
G. In considering this Resolution, the staff report, and all other documents, oral
testimony and other evidence presented at the hearing on this Resolution, the City
Council finds that, consistent with the preceding discussion in this Paragraph 5, the City
Council's adoption of this Resolution approving the Settlement Agreement and the Tres
Hermanos JPA and which contemplates the acquisition of Tres Hermanos Ranch by the
Conservation Authority (collectively, the “Actions”), are categorically exempt from the
California Environmental Quality Act ("CEQA") for the following reasons: (1) the Actions
will result in the transfer of ownership interests of Tres Hermanos Ranch to the
Conversation Authority, the primary purpose of which is to preserve open space and
existing habitat and historical resources including, but not limited to, those identified in
Sections 5.C and 5.D of this Resolution, which Actions are categorically exempt from
CEQA review pursuant to California Code of Regulations, Title 14, Chapter 3 (“CEQA
Guidelines”), Section 15325; and (2) the Actions will result in the operation, repair,
maintenance or minor alteration of existing public structures, facilities, mechanical
equipment or topographical features including, but not limited to, those identified in
Section 5.C and 5.D of this Resolution, with negligible or no expansion of the existing
uses, which Actions are categorically exempt from CEQA review pursuant to CEQA
Guidelines Section 15301.
Section 6. This Resolution shall take effect immediately upon its passage and
adoption and execution by the Mayor.
PASSED, APPROVED, AND ADOPTED this 5th day of February, 2019.
Carol Herrera, Mayor
ATTEST:
I, Tommye A. Cribbins, City Clerk of the City of Diamond Bar, California, do hereby
certify that the foregoing Resolution was duly and regularly passed , approved and
adopted by the City Council of the City of Diamond Bar, California, at its Special meeting
held on the 5th day of February 2019, by the following Roll Call vote:
AYES: COUNCILMEMBERS:
NOES: COUNCILMEMBERS:
ABSENT: COUNCILMEMBERS:
ABSTAIN: COUNCILMEMBERS:
Tommye A. Cribbins, City Clerk
City of Diamond Bar
2.1.b
Packet Pg. 15
Resolution No. 2019-02
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1379303.1
Attachments:
Exhibit 1: Tres Hermanos Settlement Agreement
Exhibit 1A: Amended and Restated Tres Hermanos Conservation Authority
Joint Powers Agreement
Exhibit 1B: Purchase and Sale Agreement/Joint Escrow Instructions
2.1.b
Packet Pg. 16
SMRH:489412557.3 -1-
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
THIS SETTLEMENT AGREEMENT ("Agreement") is made and entered into
as of February 5, 2019, by and among the CITY OF CHINO HILLS ("Chino Hills"), the CITY
OF DIAMOND BAR ("Diamond Bar"), the CITY OF INDUSTRY ("Industry") and the CITY
OF INDUSTRY CITY COUNCIL (the "Industry City Council" and, collectively with Industry,
the "Industry Parties"), and the SUCCESSOR AGENCY TO THE INDUSTRY-URBAN
DEVELOPMENT AGENCY (the "Successor Agency") and the BOARD OF DIRECTORS OF
THE SUCCESSOR AGENCY TO THE INDUSTRY-URBAN DEVELOPMENT AGENCY
the "Successor Agency Board" and, collectively with the Successor Agency, the "Successor
Agency Parties"). The aforementioned parties are collectively defined herein as the "Parties" and
each individually as a "Party." This Agreement is made with reference to the following facts:
RECITALS
A. Certain claims, demands and differences have existed heretofore among
the Diamond Bar and Chino Hills, on the one hand, and the Industry Parties and the Successor
Agency Parties, on the other hand.
B. The Successor Agency owns approximately 2,445 acres of largely
undeveloped land, 695 acres of which is located within the boundaries of Diamond Bar and
1,750 acres of which is located within the boundaries of Chino Hills, which is commonly known
as Tres Hermanos Ranch ("Tres Hermanos").
C. Diamond Bar and Chino Hills have filed the following six lawsuits against
all or some of the Industry Parties, the Successor Agency Parties, the Oversight Board of the
Successor Agency to the Industry Urban-Development Agency (the "Oversight Board"), San
Gabriel Valley Water and Power, LLC ("SGVWP") and other parties relating to the approval of
the sale of Tres Hermanos by the Successor Agency to Industry (collectively, the "Tres
Hermanos Lawsuits"):
1. City of Diamond Bar v. City of Industry, et al., Los Angeles
Superior Court Case No. BS171295 (the "Diamond Bar Los Angeles Lawsuit").
2. City of Chino Hills v. City of Industry, et al., Los Angeles Superior
Court Case No. BS171398 (the "Chino Hills Los Angeles Lawsuit").
3. City of Chino Hills v. City of Industry, et al., Los Angeles Superior
Court Case No. BS172995 (the "Chino Hills PRA Lawsuit").
4. City of Diamond Bar v. City of Industry, et al., Los Angeles
Superior Court Case No. BS173224 (the "Diamond Bar PRA Lawsuit").
5. City of Diamond Bar v. Oversight Board of the Successor Agency
to the Industry-Urban Development Agency, et al., Sacramento Superior Court Case No. 34-
2017-80002718-CU-WM-GDS (the "Diamond Bar Sacramento Lawsuit").
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6. City of Chino Hills v. Oversight Board of the Successor Agency to
the Industry-Urban Development Agency, et al., Sacramento Superior Court Case No. 34-2017-
80002719-CU-WM-GDS (the "Chino Hills Sacramento Lawsuit").
D. With respect to the Chino Hills Sacramento Lawsuit, Chino Hills caused
the recordation of that certain Notice of Pendency of Action (the "Chino Hills Lis Pendens")
i) on February 26, 2018 as Instrument No. 2018018 in the Official Records of Los Angeles
County, California (the "LAC Official Records") and (ii) on January 31, 2018 as
Document No. 2018-0035375 in the Official Records of San Bernardino County, California (the
SBC Official Records"). With respect to the Diamond Bar Sacramento Lawsuit, Diamond Bar
caused the recordation of that certain Notice of Pendency of Action (the "Diamond Bar Lis
Pendens") (i) on January 29, 2018 as Instrument No. 20180092644 in the LAC Official Records
and (ii) on January 31, 2018 as Document No. 2018-0035624 in the SBC Official Records.
E. The Parties desire to settle and dispose of, fully and completely, any and
all matters between them heretofore arising out of, connected with or relating to the Tres
Hermanos Lawsuits, including without limitation any claims that could have been raised in
connection with the Tres Hermanos Lawsuits accruing prior to the date of this Agreement,
without any further court proceedings, trial, appeal or adjudication of any issue of fact or law,
and without any admission with respect to such matters by any Party.
F. This Agreement is not to be construed as a settlement or waiver of any
claim or cause of action that the Parties have or may have, or that any individual Party has or
may have, as against SGVWP or its affiliates, members, managers or successors or assigns.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
described below, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Notice of Conditional Settlement. Within seven (7) business days after the
satisfaction of the conditions precedent set forth in Section 2.1, 2.2 and 2.3, below, counsel for
Chino Hills and Diamond Bar shall file notices of conditional settlement with respect to the
Chino Hills Los Angeles Lawsuit, the Diamond Bar Los Angeles Lawsuit, the Chino Hills
Sacramento Lawsuit and the Diamond Bar Sacramento Lawsuit (collectively, the "Los
Angeles/Sacramento Lawsuits"), using Judicial Council Form CM-200, indicating that each is a
conditional settlement and stating that a request for dismissal will be filed no later than
February 29, 2028; provided, however, that following such conditional settlement, the Los
Angeles/Sacramento Lawsuits shall be dismissed pursuant to Section 2, below, following the
satisfaction of the condition precedent set forth in Section 2.4, below.
2. Dismissal of Lawsuits. Chino Hills and Diamond Bar shall (a) (i) file and serve
requests for dismissal with prejudice of the Los Angeles/Sacramento Lawsuits, executed by their
respective counsel, and (ii) record expungements of the Chino Hills Lis Pendens and the
Diamond Bar Lis Pendens, signed by their respective counsel, in the LAC Official Records and
the SBC Official Records, all within seven (7) business days following satisfaction of all of the
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conditions precedent set forth in Sections 2.1, 2.2, 2.3 and 2.4, below, and (b) Chino Hills and
Diamond Bar shall file and serve requests for dismissal without prejudice of the Chino Hills
PRA Lawsuit and the Diamond Bar PRA Lawsuit, executed by their respective counsel, within
seven (7) business days following satisfaction of the conditions precedent set forth in Sections
2.1, 2.2 and 2.3, below:
2.1 Joint Powers Agreement. On or before February 5, 2019, the governing
bodies of Diamond Bar, Chino Hills and Industry (collectively, the "City Parties" and each
individually a "City Party") shall have each lawfully approved in accordance with the Joint
Exercise of Powers Act (Cal. Gov't Code § 6500 et seq.) and other applicable laws, and each
City Party shall have executed, that certain Amended and Restated Tres Hermanos Joint Powers
Agreement, in the form attached hereto as Exhibit "A" (the "JPA"), which shall reconstitute the
Tres Hermanos Conservation Authority (the "Authority").
2.2 Purchase and Sale Agreement. On or before February 8, 2019, the
Industry City Council and the governing body of the Authority shall have each lawfully
approved, and Industry, as seller, and the Authority, as buyer, shall have entered into that certain
Purchase and Sale Agreement and Joint Escrow Instructions, in the form attached hereto as
Exhibit "B" (the "Authority Purchase Agreement"), pursuant to which the Authority shall
acquire fee title to Tres Hermanos from Industry immediately following Industry's acquisition of
fee title to Tres Hermanos from the Successor Agency pursuant to that certain Purchase and Sale
Agreement and Joint Escrow Instructions Trusts Hermanos Ranch (the "Industry Purchase
Agreement"), which was approved by the Oversight Board on August 24, 2017 and subsequently
ratified" by the Successor Agency Board and the Industry City Council on September 28, 2017.
The purchase price for Tres Hermanos in the Authority Purchase Agreement is $41,650,000.
Chino Hills and Diamond Bar will collectively pay a portion of the purchase price in the
aggregate amount of $4,165,000, in proportion to the portions of Tres Hermanos within their
respective jurisdictional limits.
2.3 Acquisition of Tres Hermanos. On or before February 13, 2019, Industry
shall have acquired fee title to Tres Hermanos pursuant to the Industry Purchase Agreement and
the Authority shall have immediately thereafter acquired fee title to Tres Hermanos pursuant to
the Authority Purchase Agreement.
2.4 Resolution of All SGVWP Disputes. The Industry Parties and SGVWP
and its members, managers, agents, representatives, employees and affiliates (collectively, the
SGVWP Parties") shall have settled and resolved all existing and potential disputes among them
concerning that certain Master Ground Lease dated as of May 17, 2016, by and between
Industry, as landlord, and SGVWP, as tenant (as amended, the "Master Lease"), as "ratified" by
the Industry City Council on October 12, 2017, and the transfer of Tres Hermanos to the
Authority (collectively, the "SGVWP/Industry Disputes"), which settlement and resolution shall
require, without limitation, that the SGVWP/Industry Disputes, if any, shall have been (a) fully
and finally settled and/or (b) adjudicated and non-appealable, so that (i) neither Industry nor
SGVWP can interfere in any manner with or otherwise affect the sale and transfer of Tres
Hermanos by Industry to the Authority in accordance with the Authority Purchase Agreement or
the Authority's use and administration of Tres Hermanos in accordance with the JPA following
such sale and transfer, and (ii) SGVWP has no right or interest whatsoever in or with respect to
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Tres Hermanos pursuant to the Master Lease or otherwise and that the Master Lease shall have
been terminated and have no further force or effect. For purposes of this Section 2.4, the term
settled" means, without limitation on the preceding sentence, that (A) the Industry Parties and
the SGVWP Parties shall have dismissed with prejudice all lawsuits and other judicial
proceedings by the Industry Parties against SGVWP Parties, or by the SGVWP Parties against
the Industry Parties, Diamond Bar, Chino Hills and the Authority, with respect to the
SGVWP/Industry Disputes, and (B) in the event litigation has been formally initiated against the
Diamond Bar/Chino Hills Parties (as defined in Section 5, below) and/or the Authority, the
SGVWP Parties shall have released the Diamond Bar/Chino Hills Parties and/or the Authority,
and each of them, as applicable, from any and all Claims (as defined in Section 6.1, below).
Notwithstanding anything to the contrary in this Section 2.4, Industry is permitted to maintain
any action or initiate any cause(s) of action against SGVWP, so long as Industry does not seek to
invalidate the transfer of Tres Hermanos to the Authority and/or validate the Master Lease.
3. Waiver of Attorney' Fees re Los Angeles/Sacrament o Lawsuits. In the
event that the Los Angeles/Sacramento Lawsuits are not dismissed in accordance with Section 2,
above, and (a) any or all of the Los Angeles/Sacramento Lawsuits are thereafter adjudicated or
otherwise resolved in favor of Chino Hills and/or Diamond Bar, in whole or in part, Chino Hills
and Diamond Bar shall have no right to seek attorneys' fees, interest or costs, or any other
monetary damages from the Industry Parties or the Successor Agency Parties in connection
therewith, and (b) any or all of the Los Angeles/Sacramento Lawsuits are thereafter adjudicated
or otherwise resolved in favor of the Industry Parties and/or the Successor Agency Parties, in
whole or in part, neither the Industry Parties nor the Successor Agency Parties shall have any
right to seek attorneys' fees, interest or costs, or any other monetary damages from the Chino
Hills or Diamond Bar in connection therewith.
4. Industry Resolution of SGVWP Disputes. Industry shall use its
reasonable efforts to resolve and settle all of the SGVWP/Industry Disputes prior to the transfer
of fee title to Tres Hermanos to the Authority, provided that such resolution is reasonably
determined by the Industry City Council to be in Industry's best interest. In the event that such
resolution does not occur prior to such transfer, Industry shall continue to use its reasonable
efforts to achieve such resolution as soon as possible thereafter. Notwithstanding the foregoing,
in the event that Industry pursues any claims, suits and/or administrative proceedings against
SGVWP relating to the Master Lease, Industry's pursuit of such claims, suits and/or
administrative proceedings shall not constitute a breach under this Agreement, provided that
Industry does not seek to invalidate the transfer of Tres Hermanos to the Authority and/or
validate the Master Lease.
5. Indemnification. Industry agrees to indemnify, defend and hold harmless
Diamond Bar and Chino Hills, and their respective officers, elected and appointed officials,
agents, employees, representatives, administrators, attorneys, assigns and successors in interest
collectively, the "Diamond Bar/Chino Hills Parties"), and each of them, with respect to any
Claims that arise out of or relate in any way to the SGVWP/Industry Disputes, including without
limitation any dealings between Industry and SGVWP or its affiliates involving Tres Hermanos
or any adjacent property owned or controlled, in whole or in part, by Industry. The foregoing
indemnification obligation shall include, but not be limited to, the burden and expense of
defending all claims, suits and administrative proceedings (with counsel reasonably approved by
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the indemnified parties), even if such claims, suits or proceedings are groundless, false or
fraudulent, and conducting all negotiations of any description, and paying and discharging, when
and as the same become due, any and all judgments, penalties or other sums due against such
indemnified persons. Chino Hills and Diamond Bar, at their sole expense, may employ
additional counsel of its choice to associate with counsel representing Industry, provided that,
notwithstanding anything to the contrary in this Section 5, Industry shall have no obligation to
indemnify the Diamond Bar/Chino Hills Parties with respect to the attorneys' fees associated
with such additional counsel. The obligations of Industry under this Section 5 shall survive the
termination of this Agreement.
6. Mutual Releases. The Parties promise, agree and specifically release as follows,
which releases shall become effective upon the satisfaction of all of the conditions precedent set
forth in Section 2, above:
6.1 Industry Release. Except as to such rights or remedies as may be created
by this Agreement, the Authority Purchase Agreement and the JPA (collectively, the "Settlement
Documents"), Industry fully, finally and forever irrevocably releases, remises and discharges the
Diamond Bar/Chino Hills Parties, and each of them, from any and all past or present suits,
actions or causes of action, in law or in equity, debts, liens, contracts, agreements, promises,
liabilities, claims, demands, damages, losses, costs or expenses, of any nature whatsoever,
whether known or unknown, suspected or unsuspected (collectively, "Claims"), whether known
or unknown, disclosed or undisclosed, suspected or unsuspected, as a result of any act, event or
omission that occurred prior to the date of this Agreement arising out of, connected with or
incidental to Tres Hermanos, the Master Lease or the Tres Hermanos Lawsuits, including any
and all Claims for the recovery of any damages, costs, expenses or fees, including attorneys' fees,
associated therewith (collectively, the "Released Claims").
6.2 Chino Hills/Diamond Bar Release. Except as to such rights or remedies as
may be created by the Settlement Documents, Chino Hills and Diamond Bar fully, finally and
forever irrevocably releases, remises and discharges the Industry Parties and their officers,
elected and appointed officials, agents, employees, representatives, administrators, attorneys,
assigns and successors in interest, and each of them, from any and all Released Claims.
6.3 Limitations on Releases. The Parties acknowledge and agree that the
releases in Sections 6.1 and 6.2, above, are expressly limited to Released Claims and do not
include any other Claims of any kind, including without limitation any Claims for breach of any
Settlement Document or the failure to satisfy any conditions precedent set forth in the Settlement
Documents.
6.4 Waiver of Civil Code Section 1542. With respect to the Released Claims,
each Party specifically waives the benefit of the provisions of Section 1542 of the California
Civil Code, which provides as follows:
A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her,
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would have materially affected his or her settlement with the debtor or
released party."
Each Party has been advised by its attorneys of the meaning of Section 1542 of the California
Civil Code, and of the implications of waiving the benefits thereof. The Parties agree that this
waiver is an essential part of this Agreement, which would not have been entered into without
such provision.
7. Covenant Not to Sue. Each Party agrees not to sue any other Party, or in any way
assist any other person or entity in suing any other Party, with respect to any Released Claim.
This Agreement may be pleaded as a full and complete defense to, and may be used as the basis
for an injunction against any dispute, suit, or other proceeding that may be instituted, prosecuted,
or attempted in breach of any such Released Claim.
8. Representations and Warranties. Each of the Parties represents, warrants and
agrees as to itself as follows:
8.1 Such Party has received independent legal advice from its attorneys with
respect to the advisability of making the settlement provided for herein, and with respect to the
advisability of executing the Settlement Documents, and it is entering into this Agreement of its
own informed and free will and based upon its own judgment.
8.2 Neither such Party nor any official, agent, employee, representative or
attorney of or for it has made any statement or representation to any other Party regarding any
fact relied upon in entering into the Settlement Documents, and it is not relying upon any
statement, representation or warranty or promise, written or oral, of any other Party (or of any
officer, agent, employee, representative, trustee or attorney for any other Party) in executing the
Settlement Documents, or in making the settlement provided for herein, except as expressly
stated in the Settlement Documents.
8.3 Such Party has made such investigation of the facts pertaining to this
settlement and the Settlement Documents and of all the matters pertaining thereto as it deems
necessary and it has executed the Settlement Documents without fraud, duress or undue
influence.
8.4 Such Party or its responsible officer has carefully read and considered the
Settlement Documents and understands the contents hereof and the significance of its contents.
8.5 This Agreement has been duly approved, executed and delivered by, and
constitutes the valid and binding obligation of, such Party, and that the individual executing this
Agreement on behalf of such Party has the authority to do so and bind such Party.
8.6 Each as otherwise expressly represented, warranted or provided in the
Settlement Documents, such Party assumes the risks (a) that it may hereafter discover facts in
addition to or contrary to those it believed to exist or relied upon in entering into the Settlement
Documents, (b) that it may have mistakenly understood matters relevant to entering into the
Settlement Documents and (c) that another Party may have negligently misrepresented or
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negligently failed to disclose facts in connection with the entering into of the Settlement
Documents. Notwithstanding any such claims of misunderstanding, mistake, negligent
misrepresentation or negligent nondisclosure, such Party intends that the Settlement Documents
thereafter shall continue in full force and effect and shall not be subject to rejection or rescission
for any reason, provided that such Party reserves all rights provided for in the Settlement
Documents.
8.7 Such Party has not heretofore assigned, transferred, or granted, or
purported to assign, transfer, or grant, any of the Released Claims or any part thereof.
8.8 Each term of this Agreement (other than Recitals A through F, above) is
contractual and not merely a recital and each of Recitals A through F, above, is true and correct.
8.9 Such Party is aware that it may hereafter discover claims or facts in
addition to or different from those it now knows or believes to be true with respect to the matters
related herein. Nevertheless, it is the intention of such Party to fully, finally and forever settle
and release all such matters, and all claims relative thereto, which do now exist, may exist, or
heretofore have existed between them. In furtherance of such intention, the releases given herein
shall be and remain in effect as full and complete mutual releases of all such matters,
notwithstanding the discovery or existence of any additional or different claims or facts relative
thereto.
8.10 The consideration recited herein is the only consideration for entering into
this Agreement and that no promises or representations of other or further consideration have
been made by any person or entity.
9. No Admissions. Each Party acknowledges that this Agreement effects the
settlement of claims that are denied and contested by one or more other Parties, and that nothing
contained herein can be construed as an admission of liability by or on behalf of any Party, all of
which liability is expressly denied.
10. Own Counsel. Each of the Parties acknowledges that it has been represented by
counsel of its own choice throughout all of the negotiations that preceded the execution of this
Agreement and in connection with the preparation and execution of this Agreement.
11. Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original and all of which taken together shall constitute one and the
same instrument.
12. Captions. The captions of paragraphs contained in this Agreement are for
reference only and shall not affect the meaning of any provision of this Agreement.
13. Own Costs. As between themselves, each Party shall bear its own costs, expenses
and attorneys' fees that it has heretofore incurred in connection with or arising out of the matters
set forth in the Recitals hereinabove.
14. Entire Agreement. It is expressly understood and agreed that the Settlement
Documents contain and represent the entire agreement between the Parties with respect to the
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Released Claims, the settlement thereof and subject matter hereof, and merge, supersede and
replace all prior and contemporaneous prior discussions, understandings, negotiations,
agreements, representations, conditions, warranties, covenants and all other communications
between the Parties, whether written or oral, relating to such subject matter.
15. Amendment. This Agreement may be modified or amended only by an
agreement in writing that is approved by the governing body of each Party and duly executed by
all of the Parties, provided that such approval and execution by the Successor shall not be
required following the transfer of fee title to Tres Hermanos from Industry to the Authority.
16. Binding Effect. This Agreement is binding upon and shall inure to the benefit of
each of the Parties and their respective officers, elected and appointed officials, agents,
employees, representatives, administrators, attorneys, assigns and successors in interest.
17. Severability. In the event any covenant, condition, or other provision herein is
held to be invalid, void, or illegal, the same is deemed severed from the remainder of this
Agreement and will not affect, impair or invalidate any other covenant, condition, or other
provision herein unless a court finds that the stricken provision(s) were integral to this
Agreement and that it would be unfair to enforce the balance of the Agreement. If any covenant,
condition, or other provision herein is held to be invalid due to its scope or breadth, such
covenant, condition, or other provision shall be deemed valid to the extent of the scope or
breadth permitted by law.
18. Arm's Length Negotiations. This Agreement has been negotiated at arms' length
between persons knowledgeable in the matters dealt with herein. In addition, each of the Parties
has been represented by independent legal counsel of its own choice. Accordingly, any rules of
law, including, without limitation, Section 1654 of the California Civil Code, or any other
statute, legal decision, or common law principle of similar effect, that would require
interpretation of any ambiguities in this Agreement against the party that drafted it, is of no
application and is hereby expressly waived. The provisions of this Agreement will be interpreted
in a reasonable manner to effect the intentions of the Parties and of this Agreement.
19. Governing Law/Venue. This Agreement is made and entered into in the County
of Los Angeles, State of California, and the rights and obligations of the parties hereunder shall
in all respects be construed and enforced in accordance with, and governed by, the laws of the
State of California. The Parties agree that all legal actions (including, without limitation,
proceedings at law or in equity) arising out of this Agreement, shall be commenced and
maintained only in the Los Angeles County Superior Court, in any other appropriate court in Los
Angeles County, California, or in the United States District Court for the Central District of
California. Each Party hereby agrees to submit to the jurisdiction of any and all such courts and
further agree that venue shall be proper only in such courts.
20. Mistake. Each Party has investigated the facts pertaining to the Settlement
Documents to the extent such Party deems necessary. In entering into the Settlement
Documents, each Party assumes the risk of mistake with respect to such facts. The Settlement
Documents are intended to be final and binding upon the Parties regardless of any claim of
mistake.
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21. No Waiver. No provision herein may be waived unless in writing and signed by
the Party or Parties whose rights are thereby waived. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein.
22. Construction. This Agreement has been reviewed by the Parties, and by their
respective attorneys, and the Parties have had a full opportunity to negotiate their contents. The
Parties agree that the language in all parts of the Settlement Documents shall in all cases be
construed as a whole, according to its fair meaning.
23. No Third Parties Benefited. Nothing in this Agreement or the Covenant
Agreement, express or implied, is intended to confer upon any person or entity, other than the
Parties or their respective permitted successors and assigns, any rights or benefits under or by
reason of this Agreement or the Covenant Agreement.
24. Attorneys' Fees. In the event that any litigation shall be commenced concerning
this Agreement or any Party's performance under this Agreement, the court, in its discretion, may
award to the prevailing Party in such litigation, in addition to such other relief as may be granted,
that Party's reasonable costs and expenses, including without limitation attorneys' fees and court
costs, whether or not taxable, in addition to any other relief to which it may be entitled.
25. Exhibits. All Exhibits attached hereto are incorporated herein by this reference
and made a part of this Agreement.
SIGNATURES ON FOLLOWING TWO PAGES]
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26. Business Day. The term "business day" means any day other than Saturday,
Sunday or a holiday on which the U.S. Postal Service does not deliver regular mail.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
as of the date first hereinabove set forth.
CITY OF CHINO HILLS
By: __________________________
Konradt Bartlam, City Manager
ATTEST:
By: __________________________
Cheryl Balz, City Clerk
Approved as to form:
By: __________________________
Mark D. Hensley,
City Attorney
CITY OF DIAMOND BAR
By: _________________________
Daniel Fox, City Manager
ATTEST:
By: _________________________
Tommye Cribbins, City Clerk
Approved as to form:
By: _________________________
David DeBerry,
City Attorney
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CITY OF INDUSTRY & CITY COUNCIL
OF THE CITY OF INDUSTRY
By: __________________________
Troy Helling, City Manager
ATTEST:
By: __________________________
Julie Gutierrez-Robles,
Deputy City Clerk
Approved as to form:
By: __________________________
James M. Casso,
City Attorney
SUCCESSOR AGENCY OF THE
INDUSTRY-URBAN DEVELOPMENT
AGENCY AND ITS BOARD OF
DIRECTORS
By: ___________________________
Troy Helling, Executive Director
ATTEST:
By: __________________________
Julie Gutierrez-Robles,
Deputy Agency Secretary
Approved as to form:
By: _________________________
James M. Casso,
Agency General Counsel
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EXHIBIT "A"
FORM OF JPA
AMENDED AND RESTATED
TRES HERMANOS CONSERVATION AUTHORITY
JOINT POWERS AGREEMENT
By and Between
CITY OF INDUSTRY, CALIFORNIA
CITY OF CHINO HILLS, CALIFORNIA
And
CITY OF DIAMOND BAR, CALIFORNIA
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TABLE OF CONTENTS
RECITALS ......................................................................................................................................5
AGREEMENT .................................................................................................................................6
CHAPTER 1. DEFINITIONS ........................................................................................................6
CHAPTER 2. PURPOSE AND POWERS .....................................................................................7
2.1 AUTHORITY CREATED ...................................................................................... 7
2.2 COMMON POWERS ............................................................................................. 8
2.3 GENERAL PURPOSE ........................................................................................... 8
2.4 POWERS ................................................................................................................ 8
CHAPTER 3. ORGANIZATION .................................................................................................10
3.1 MEMBERSHIP..................................................................................................... 10
3.2 BOARD................................................................................................................. 10
3.3 PRINCIPAL OFFICE ........................................................................................... 11
3.4.MEETINGS .......................................................................................................... 11
3.5 QUORUM ............................................................................................................. 11
3.6 POWERS AND LIMITATIONS .......................................................................... 11
3.7 AGENDAS - SECRETARY DUTIES ................................................................. 11
3.8 TREASURER ....................................................................................................... 12
3.9 LEGAL COUNSEL .............................................................................................. 12
3.10 EXECUTIVE DIRECTOR ................................................................................... 12
3.11 DEPUTY EXECUTIVE DIRECTOR .................................................................. 13
3.12 ROTATION OF ADMINISTRATION ................................................................ 13
3.13 BOND ................................................................................................................... 13
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3.14 STATUS OF OFFICERS AND EMPLOYEES ................................................... 13
3.15 POLITICAL REFORM ACT ............................................................................... 14
CHAPTER 4. FUNDING AND ADMINISTRATION ................................................................14
4.1 FUNDING............................................................................................................. 14
4.2 ADDITIONAL COST OBLIGATIONS............................................................... 15
4.3 APPROVAL BY MEMBERS’ CITY COUNCILS .............................................. 16
4.4 EMERGENCY MAINTENANCE ....................................................................... 16
4.5 PURCHASING POLICY...................................................................................... 16
CHAPTER 5. BUDGETARY PROVISIONS ..............................................................................16
5.1 ANNUAL BUDGET ............................................................................................ 16
5.2 DISBURSEMENTS .............................................................................................. 17
5.3 ACCOUNTS ......................................................................................................... 17
5.4 EXPENDITURES WITHIN APPROVED ANNUAL BUDGET ........................ 17
5.5 REVENUES .......................................................................................................... 17
5.6 USES AS OF THE EFFECTIVE DATE .............................................................. 18
CHAPTER 6. BOARD VOTING REQUIREMENTS .................................................................18
CHAPTER 7. LAND USE REGULATIONS/DEED RESTRICTION ........................................19
CHAPTER 8. LIABILITY/INSURANCE ....................................................................................19
8.1 LIABILITY ........................................................................................................... 19
8.2 INDEMNIFICATION/HOLD HARMLESS/INSURANCE ................................ 19
8.3 GOVERNMENT CLAIMS .................................................................................. 21
CHAPTER 9. ADMISSION OR WITHDRAWAL OF MEMBERS ...........................................21
9.1 NEW MEMBERS ................................................................................................. 21
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9.2 WITHDRAWAL ................................................................................................... 22
9.3 BREACH .............................................................................................................. 22
9.4 PENALTIES ......................................................................................................... 23
CHAPTER 10. AUTHORITY TERMINATION AND DISPOSITION OF ASSETS ................23
10.1 TERMINATION ................................................................................................... 23
10.2 DISTRIBUTION OF PROPERTY ....................................................................... 23
CHAPTER 11. MISCELLANEOUS ............................................................................................26
11.1 AMENDMENTS .................................................................................................. 26
11.2 NOTICE ................................................................................................................ 26
11.3 PARTIAL INVALIDITY ..................................................................................... 27
11.4 GOVERNING LAW/VENUE .............................................................................. 27
11.5 INTEGRATION ................................................................................................... 27
11.6 NO THIRD-PARTY BENEFICIARIES ............................................................... 27
11.7 RECORDATION .................................................................................................. 27
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AMENDED AND RESTATED
TRES HERMANOS CONSERVATION AUTHORITY
JOINT POWERS AGREEMENT
This Amended and Restated Tres Hermanos Conservation Authority Joint Powers
Agreement (“Agreement”), shall be effective as of February 5, 2019, (“Effective Date”) and is
made by and between the following public entities, (each individually a “Party” and collectively,
the “Parties”):
A. City of Industry (“Industry”)
B. City of Chino Hills (“Chino Hills”)
C. City of Diamond Bar (“Diamond Bar”)
RECITALS
A. Chino Hills and Diamond Bar entered into that certain Joint Exercise of Powers
Agreement dated January 19, 1999 (the “1999 Agreement”), the stated purpose of which was to
create a joint powers authority to coordinate the overall development and conservation of the Tres
Hermanos Ranch (the “Ranch”), by preparing studies, plans, environmental reviews and similar
information and by making recommendations to its members to take such actions to implement its
recommendations. In1999 Industry was made an ex-officio non-voting member of the Joint
Powers Authority, but Industry’s status was, as of the Effective Date, unclear.
B. The Ranch consists of approximately 2,445 acres of largely undeveloped property.
Approximately 1,750 acres are within Chino Hills and 695 acres are within Diamond Bar. The
Ranch was acquired by the Industry Urban-Development Agency in 1978 and is currently owned
by the Successor Agency to Industry's Urban Development Agency (“Successor Agency”).
Industry proposed to purchase the Ranch from the Successor Agency. Industry entered into a lease
agreement and various amendments thereto with San Gabriel Valley Water and Power, LLC, a
private entity (collectively the “Lease”) which was applicable to the Ranch in the event the Lease
was (i) in effect, and (ii) the Ranch was purchased by Industry prior to December 31, 2018. Chino
Hills and Diamond Bar objected to Industry’s proposed purchase and use, and initiated litigation
in Sacramento and Los Angeles Superior Courts to (i) set aside the approvals related to Industry’s
purchase of the Ranch and (ii) invalidate the Lease (the “Litigation”).
C. After initiation of the Litigation, the Parties began settlement discussions to resolve
the Litigation, which resulted in the Parties entering into a settlement agreement dated February 5,
2019, (the “Settlement Agreement”) which Settlement Agreement included as a condition thereof,
that the Parties enter into this Agreement.
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D. As part of the Settlement Agreement, Chino Hills and Diamond Bar will
collectively contribute to Industry ten percent (10%) of Industry’s $41,650,000 purchase price for
the Ranch from the Successor Agency. Chino Hills’ and Diamond Bar’s pro rata shares of the ten
percent (10%) contribution were calculated on the basis of the amount of acreage of Ranch
property within each city’s jurisdiction. Based upon this calculation, Chino Hills will contribute
2,959,967 to Industry and Diamond Bar will contribute $1,205,033 to Industry.
E. The Parties agree that the Ranch serves as an important environmental, scientific,
educational, and recreational resource, and that the most prudent method of managing the Ranch
to best serve their respective jurisdictions is to transfer ownership of the Ranch to a re-constituted
Tres Hermanos Conservation Authority in which all Parties have representation.
F. The Parties have further determined that the planning and coordination of any
future preservation, development or use of the Ranch by the re-constituted Tres Hermanos
Conservation Authority will allow for rational regional land use planning and environmental
conservation, as well as enable the Parties to realize significant cost savings and administrative
efficiencies.
G. The Parties have determined that the administrative and maintenance costs
associated with the Ranch should be funded by the Parties, with costs apportioned as outlined by
this Agreement.
H. The Parties each have the power and authority to perform and contract with one
another pursuant to the Joint Exercise of Powers Act, sections 6500 et. seq. of the Government
Code (“Joint Powers Act”), for the performance of the duties and functions that form the basis of
this Agreement.
I. The Parties intend that in entering into this Agreement that it shall replace and
supersede in its entirety the 1999 Agreement and all amendments and/or addendums to the 1999
Agreement and the joint powers authority created thereunder.
AGREEMENT
In consideration of the foregoing recitals and the mutual covenants contained in this
Agreement, it is agreed between and among each of the Parties that this Agreement amends,
replaces and supersedes in its entirety the 1999 Agreement, any amendments or addendums
thereto, and the joint powers authority created thereunder as follows:
CHAPTER 1. DEFINITIONS
1.1 “Authority” shall mean the joint powers authority known as the Tres Hermanos
Conservation Authority, created by this Agreement pursuant to the Joint Powers Act.
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1.2 “Board” is the Board of Directors and the governing body of the Authority.
1.3 “Director” shall mean the voting representative appointed by the governing body
of each Member to represent said Member on the Board.
1.4 “Deed Restriction” shall mean the deed restriction set forth in the grant deed
transferring the Ranch to the Authority that limits the use of the Ranch to open space, public use
or preservation.
1.5 “Fiscal Year” shall mean the twelve-month period commencing July 1st and
concluding June 30th.
1.6 “Members” shall mean Industry, Chino Hills, and/or Diamond Bar (and each
individually a “Member”), and any public entity that becomes a Member to this Agreement and
which has not otherwise withdrawn from such membership or been terminated from such
membership pursuant to Chapter 9, below.
1.7 “Ranch” shall mean the land described in the legal description and depicted in the
map attached hereto as Exhibit “A”, consisting of approximately 2,445 acres of largely
undeveloped open space located within Diamond Bar and Chino Hills. The Ranch shall constitute
the jurisdictional boundaries of the Authority.
1.8 “Staff” shall mean all employees of Industry, Chino Hills, and Diamond Bar
performing services related to the operation of the Authority and maintenance and operation of the
Ranch in a manner to be determined by the Board, or such individual or entity as may be appointed
by the Board to perform these functions.
CHAPTER 2. PURPOSE AND POWERS
2.1 AUTHORITY CREATED
The Authority is formed pursuant to the provision of Joint Powers Act; provided, however,
that this Agreement shall terminate by its own terms if escrow transferring the Ranch to the
Authority does not close within thirty (30) days after the Effective Date, unless otherwise extended
in writing by the Parties. The Authority shall be considered a public entity separate and apart from
the Members. The Authority shall within thirty (30) days after the Effective Date and after any
amendment to this Agreement, cause a notice of this Agreement and any subsequent amendment
thereto, to be prepared and filed with the office of the California Secretary of State containing the
information required by Government Code section 6503.5.
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2.2 COMMON POWERS
Chino Hills and Diamond Bar are general law cities and Industry a charter city, duly
organized and validly existing under the laws of the State of California and have the power to carry
on their business as is necessary and applicable to the purpose of this Agreement, including but
not limited to owning property, land use planning and conservation.
2.3 GENERAL PURPOSE
The general purpose of this Agreement is to create a public entity to coordinate the overall
conservation, use and potential improvement of the Ranch through collaboration by its Members
whose representatives on the Board will coordinate and provide for the maintenance of the Ranch,
determine proposed uses thereof, and ensure that any proposed disposition or use of the Ranch are
consistent with (a) applicable land use, zoning, and other laws and regulations and (b) the Deed
Restriction.
This Agreement is intended to provide a formal mechanism by which the Authority can
fund this collaborative effort to the satisfaction of each of the Parties.
2.4 POWERS
The Authority, through its Board, shall have the power, in its own name, to do any and all
of the following:
A. To jointly exercise the common powers of the Members;
B. To make and enter into contracts, including but not limited to, contracting with
other public agencies for services, equipment and related items;
C. To acquire, hold or dispose of all or any portion of the Ranch and other property by
any lawful means, including, without limitation, by gift, purchase, lease or sale;
D. To determine and authorize all uses of the Ranch consistent with and subject to the
Deed Restriction and the general plan and zoning laws of the city in which the
Ranch is located;
E. To incur debts, liabilities or obligations, subject to the limitations specified in this
Agreement and, to the extent permitted by law, borrow funds on a temporary basis
to meet operational expenses until expected revenue is available for that purpose;
F. To the extent permitted by law, to enter into lease agreements, lease-purchase
agreements, licenses, or other financial arrangements extending beyond the current
budgetary cycle, necessary or convenient to the operation of the Authority so long
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as such agreement or financial arrangements contain substantially the following
provisions:
The Authority receives its funds on an annual budgetary cycle from its
individual Members. The Authority agrees to use its best efforts to obtain
authorization and appropriation of funds from its individual Members to
pay lease payments due under this Agreement, including, without limitation,
the inclusion in its budget request for each fiscal year during the term of
this Agreement a request for adequate funds to meet in full its obligation
hereunder. The Board may terminate this Agreement in the event funds are
not appropriated or appropriations are withdrawn or withheld upon thirty
30) days written notice. Termination under this provision shall not
constitute a default or breach. The Authority shall not be obligated to pay
any additional lease payments but shall, after written notice from Lessor,
deliver the equipment or property to the Lessor or its assignee. Lessor
acknowledges that the individual Members of the Authority shall not be
liable for the debts of the Authority;
G. To invest any money in the treasury pursuant to Section 6505.5 of the Joint Powers
Act that is not required for the immediate needs of the Authority, as the Board
determines is advisable, in the same manner and upon the same conditions as
local agencies, pursuant to Government Code section 53601;
H. To receive gifts, contributions, grants, and donations of property, funds, services
and other forms of assistance from any person, firm, entity, corporation or public
agency;
I. To sue and be sued in its own name;
J. To adopt rules, regulations, policies, by-laws and procedures consistent with the
terms of this Agreement for governing the operation of the Authority; and
K. To exercise any other power in the manner and according to the methods provided
by applicable laws, rules or regulations or this Agreement, subject only to the
restrictions on the manner of exercising such powers that may be applicable to the
Members.
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CHAPTER 3. ORGANIZATION
3.1 MEMBERSHIP
The Members of this Authority shall be Chino Hills, Diamond Bar and Industry, so long
as each Member has not withdrawn from, or had its membership in the Authority terminated, as
provided in Sections 9.2 and 9.3 below. Any new Member must be approved by way of an
amendment to this Agreement in accordance with Chapter 6 and Sections 9.1 and 11.1 below.
3.2 BOARD
A. The Board shall consist of seven (7) voting Directors and one (1) alternate from
each Member. Directors and alternates shall at all times, while serving as a Director
or alternate, be holding office on a Member’s city council. Directors and one
alternate shall be appointed by each Member’s city council as follows:
1. Three (3) Directors and an alternate from Industry;
2. Two (2) Directors and an alternate from Chino Hills; and
3. Two (2) Directors and an alternate from Diamond Bar.
B. Each Director, and alternate, shall hold office from the time of appointment and
shall serve at the pleasure of the appointing city council. Upon occurrence of
vacancy due to a Director leaving office as a city council member or for some other
reason, a successor shall be appointed.
C. A Director shall not receive compensation, but may be reimbursed by the Authority
for expenses and reasonably incurred and approved in advance by the Board while
performing duties required by this Agreement and as further specified and limited
by resolution of the Board.
D. Annually, at its first meeting of each new calendar year, the Board shall select a
chairperson and vice chairperson from among the Directors; provided, however,
that: (i) the chairperson and vice chairperson shall not be Directors representing the
same Member; and (ii) the positions of chairperson and vice chairperson shall
alternate each year among all Members so that each Member has one Director
serving as a chairperson and one Director as vice chairperson once during each
three-year period.
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3.3 PRINCIPAL OFFICE
The principal office of the Authority shall be located at the city hall of the Member whose
city manager is serving as Executive Director.
3.4. MEETINGS
The time of regular meetings of the Board shall be determined by resolution. Regular,
adjourned, and special meetings of the Board shall be called, noticed and conducted in accordance
with the Ralph M. Brown Act or other relevant open meeting law. Each Member shall be entitled
to have its Directors, or its alternate, when a Member’s appointed Director cannot attend, in
attendance to establish a quorum or to vote upon matters coming before the Board. Meetings shall
be held at the city hall of the Member whose city manager is serving as Executive Director.
3.5 QUORUM
Attendance by a majority of the Directors at a meeting, which majority must include at
least one Director from each Member, shall constitute a quorum for the purpose of transacting
business relating to the Authority; provided, however, that any action by the Board must be taken
in accordance with the voting requirements set forth in this Agreement, including Chapter 6 below.
3.6 POWERS AND LIMITATIONS
All powers of the Authority set forth in Section 2.4 are reserved to it and may be exercised
by the Board, unless otherwise limited by law. The Board may adopt rules and regulations for the
conduct of its affairs that are not in conflict with this Agreement.
3.7 AGENDAS - SECRETARY DUTIES
The secretary of the Authority (“Secretary”) shall provide notice of, prepare and post
agendas for, and keep minutes of, each regular, adjourned and special meeting of the Board and
other records, as necessary, of the Board. The Secretary shall send a copy of the minutes to each
Director and otherwise perform the duties necessary to ensure compliance with provisions of law
including, without limitations, any applicable “open meeting law” such as the Ralph M Brown
Act.
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3.8 TREASURER
The treasurer of the Authority shall hold the office of treasurer and auditor (“Treasurer”),
in accordance with Government Code section 6505.6, and shall perform the duties as authorized
in Section 6505 et seq. of the Government Code. The Treasurer shall cause an independent audit
to be made by a certified public accountant in compliance with Section 6505 of the Government
Code. The certified public accountant shall be annually appointed by the Board. The Treasurer
shall keep all revenues of the Authority in a separate account from any Member accounts, and, if
available, an interest-bearing account, and otherwise perform the duties and responsibilities of that
office as specified in Sections 6505 et seq. of Government Code. Any surplus funds not
immediately needed may be invested in accordance with the investment policy annually adopted
by the Board, as required by Government Code section 53646, and consistent with Government
Code sections 16429.1, 53601, 53635, and 53684, as they may be amended. Any funds held by
the joint powers authority pursuant to the 1999 Agreement shall, upon the Effective Date, be
transmitted to the Treasurer for the Authority and placed in the Authority’s account. Those funds
shall be used to satisfy the obligations of Diamond Bar and Chino Hills to fund Maintenance Costs
as defined in Section 4.1.A below). Diamond Bar and Chino Hills shall each be credited with
50% of the transmitted funds, currently in the amount of $90,499.
3.9 LEGAL COUNSEL
The Diamond Bar City Attorney shall serve as the Authority’s initial general counsel;
provided, however, that the Board shall appoint an independent general counsel within six months
of the Effective Date, which independent legal counsel shall not provide or be providing any other
legal services to any Member without the express written approval by the Board. Cost for general
counsel services shall be considered Maintenance Costs. Extraordinary legal services (for example
prosecuting on behalf of or defending the Authority, its officers, and agents in a legal action) shall
be considered Extraordinary Costs (as defined in Section 4.2 below). The Members agree that the
provision of legal services to the Authority by the Diamond Bar City Attorney shall not preclude
or constitute a conflict of interest with respect to the Diamond Bar City Attorney providing city
attorney services to Diamond Bar.
3.10 EXECUTIVE DIRECTOR
The executive director of the Authority (“Executive Director”) shall perform any duties
necessary and appropriate for the day-to-day management and operation of the Authority and
award and execute contracts in amounts set forth in this Agreement and as otherwise authorized
by the Board.
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3.11 DEPUTY EXECUTIVE DIRECTOR
The deputy executive director of the Authority (“Deputy Executive Director”) is authorized
to and shall perform those functions of the Executive Director when the Executive Director is not
available. The Deputy Executive Director shall inform the Executive Director of all actions taken
during the period of the Executive Director’s unavailability as soon as reasonable practicable.
3.12 ROTATION OF ADMINISTRATION
From the Effective Date, the Industry City Manager shall serve as the Executive Director,
the Diamond Bar City Manager shall serve as the Deputy Executive Director, the Chino Hills
Finance Director shall serve as the Treasurer, and the Industry City Clerk shall serve as Secretary.
The offices of Executive Director, Deputy Executive Director, Treasurer and Secretary shall be
held until December 31, 2020. Beginning on January 1, 2021, the offices shall rotate, so that
Diamond Bar’s City Manager shall serve as Executive Director, Chino Hills’ City Manager shall
serve as Deputy Executive Director, Industry’s Finance Director shall serve as Treasurer, and
Diamond Bar’s City Clerk shall serve as Secretary. These offices shall be held for two years and
then beginning on January 1, 2023, Chino Hills’ City Manager shall serve as Executive Director,
Industry’s City Manager shall as Deputy Executive Director, Chino Hills’ Finance Director shall
as Treasurer, and Chino Hills’ City Clerk shall as Secretary. After two years in office, the offices
shall rotate effective January 1, 2025, to the initial year’s officer appointments and then the same
rotation set forth above shall be repeated for the term of this Agreement.
3.13 BOND
The Treasurer, auditor and such other persons who may have access to, or handle, any
revenue of the Authority shall be required to file an official bond in an amount determined by the
Board and consistent with the provisions of Section 6505.1 of the Government Code. This bonding
requirement shall be satisfied if an existing bond is extended to cover the duties required by this
Agreement. The costs of complying with the requirements of this Section shall be considered an
administrative expense of the Authority.
3.14 STATUS OF OFFICERS AND EMPLOYEES
In accordance with the Joint Powers Act, all of the privileges and immunities from liability,
exemptions from laws, ordinances and rules, and all pension, relief, disability, workers
compensation and other benefits which apply to the activities of officers, agents, or employees of
any of the Members when performing their respective duties or functions for that Member, shall
apply to each of them to the same degree and extent while engaged in the performance of any
activity, function or duty pursuant to the Agreement on behalf of the Authority.
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3.15 POLITICAL REFORM ACT
The Directors, and their alternates, shall be considered public officials within the meaning
of the Political Reform Act of 1974, as amended, and its regulations, for the purposes of financial
disclosure, conflict of interest and other requirements of such Act and regulations and shall file
annual statements of economic interest as required, along with any other officers of the Authority
who may be required to do so. Other persons working for or on behalf of the Authority may be
required to file such statements in accordance with the Authority’s conflict of interest code, which
shall be adopted by the Board promptly.
CHAPTER 4. FUNDING AND ADMINISTRATION
4.1 FUNDING
A. Each Member shall pay an equal one-third share (“Maintenance Cost Member
Share”) of the cost for the reasonable annual and recurring maintenance of the
Ranch, for insurance, for legal and costs of administration of the Authority and a
reasonable reserve as established by the Board (“Maintenance Costs”). Such costs
shall be specified in the annual budget approved by the Authority in accordance
with this Agreement.
B. For the Authority’s first fiscal year, which fiscal year shall be from the Effective
Date to June 30, 2020, each Member shall contribute a Maintenance Cost Member
Share of One Hundred Thousand Dollars ($100,000.00), which amount shall be
transmitted to the Treasurer within 30 days of the Effective Date and deposited into
a separate Authority account; provided, however, that Diamond Bar and Chino
Hills shall receive credits against their respective contributions for funds
transmitted to the Treasure in accordance with Section 3.8 above.
C. After the initial fiscal year, the Treasurer shall invoice each Member its
Maintenance Cost Member Share on July 1 of each Fiscal Year and payment in full
shall be due within 30 days of receipt of each invoice. A 3% penalty shall be
assessed for any late payments received after the 30-day period and payments more
than 30 days late shall in addition, accrue interest at the rate of 10% per annum.
D. Should the actual Maintenance Costs exceed the budgeted amount, those costs shall
be carried over into the next Fiscal Year as Maintenance Costs and added to the
amount to be invoiced to each Member as Maintenance Costs in relation to the
Maintenance Cost Member Share of each Member. If the Authority does not have
sufficient funds on hand to pay the Maintenance Costs, it shall estimate the amount
needed for the remainder of the Fiscal Year and invoice each Member such amount
in accordance with each Member’s Share.
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4.2 ADDITIONAL COST OBLIGATIONS
A. Any costs over and above Maintenance Costs (“Extraordinary Costs”), including
capital improvements, extraordinary legal costs and non-routine maintenance shall
be identified in the budget approved by the Authority. As part of the budget
process, the Board shall separately estimate the Extraordinary Costs and each
Member’s proportionate share of such costs, taking into consideration which
Member(s) will primarily benefit from the Extraordinary Costs (each an
Extraordinary Cost Member Share”). If Extraordinary Costs are not known at the
time of budget approval, the budget shall be amended to include those costs and
Members shall be invoiced separately for the Extraordinary Cost Member Share of
each Member as determined by the Board.
B. Notwithstanding the above, Industry has identified that the Arnold Reservoir dam
is in need of a one-time repair and requires remediation, to wit, the construction
and/or installation of erosion control measures on the wet side of the earthen dam
the “Remediation Work”). At the time this Agreement was approved by the
Members, Industry was still in the process of analyzing and engineering the
Remediation Work. Industry agrees to complete this process and prepare plans and
specifications for the Remediation Work, perform the Remediation Work and pay
all costs associated with the Remediation Work. The plans and specifications shall
be submitted to each Member’s city engineer for their reasonable review and
comment, at a cost to the respective Member, not the Authority. Any such
comments shall be in writing and provided to Industry within seven (7) business
days of receipt of the plans and specifications. The Members’ city engineers shall
work in good faith to resolve all comments, if any. As consideration for Industry’s
performance of and payment for the Remediation Work, the Authority agrees, at no
cost to Industry, to cooperate and take all reasonable steps to assist Industry in
securing the necessary permit, if any, to perform the Remediation Work and to issue
an encroachment permit to Industry to perform the Remediation Work. The
encroachment permit for the Remediation Work shall contain such conditions as
are standard and customary for third parties performing work on the Members’
public property, including, but not limited to, insurance and indemnity
requirements, and shall be approved as to form by Authority’s General Counsel.
Notwithstanding the foregoing, Industry may satisfy the insurance and indemnity
requirements of the encroachment permit by including the Authority, its appointed
officials, officers, agents, and attorneys as additional insureds and indemnified
parties in the contract awarding the Remediation Work; provided such provisions
are reasonably satisfactory to, and approved in writing by, the Authority’s General
Counsel. After completion of the one-time Remediation Work, Industry shall not
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be responsible for any future repair, maintenance or other work to the Arnold
Reservoir dam.
4.3 APPROVAL BY MEMBERS’ CITY COUNCILS
To the extent any Member is required to pay either its Maintenance Cost Member Share or
Extraordinary Cost Member Share, the obligation to pay such amounts is binding on a Member
only if approved by that Member’s city council, which approval may be approved as part of each
Member’s adoption of its annual city budgets.
4.4 EMERGENCY MAINTENANCE
In the event the Ranch or any improvement thereon suffers damage requiring emergency
repairs, the Executive Director, upon written notification to the Board and its general counsel and
written concurrence from all of the Members’ city managers, is authorized without prior Board
approval to expend funds to have the necessary emergency repairs completed as soon as possible
from available Authority funds, but in no event, shall such expenditures exceed $15,000 per Fiscal
Year per emergency event without prior Board approval. The Board shall convene as soon as
reasonably practical to ratify any such expenditure and to approve any expenditure exceeding
15,000. The cost of such repairs shall be borne equally by each Member. For purposes of this
Section 4.4, an emergency shall exist if all Members’ city managers agree the circumstances set
forth in Public Contract Code section 20168 exist.
4.5 PURCHASING POLICY
In procuring services and public works contracts, the Authority shall initially follow the
purchasing policies of Chino Hills and applicable provisions of the Public Contracts Code. The
Board shall direct that a purchasing policy be presented to the Board within one year of the date
first written above, and upon adoption by resolution, it shall become the purchasing policy of the
Authority. The Executive Director is authorized to approve purchases and execute contracts
authorized by the budget with a value of up to $15,000 per fiscal year. Purchases and contracts
with a value exceeding $15,000 per fiscal year must be approved by the Board. The Board may
alter such authority by Resolution.
CHAPTER 5. BUDGETARY PROVISIONS
5.1 ANNUAL BUDGET
The Board shall adopt an annual budget and procedures therefore so that by April 30th of
each year the budget may be timely submitted to the Members to include in their annual city
budgets. A preliminary draft of the budget shall be presented to the Board by March 30th of each
year and as provided in Chapter 4 above, shall separate out Maintenance Costs and Extraordinary
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Costs and the Maintenance Cost Member Share and Extraordinary Cost Member Share of each
Member. The Board shall establish a reasonable reserve and the policy and timing for funding
such reserve. Upon Board adoption, the budget shall be immediately transmitted to each Member
for consideration and if approved by each Member’s city council, be included in each Member’s
annual budget for the Fiscal Year in which the budget is approved.
5.2 DISBURSEMENTS
The Treasurer shall draw checks and/or warrants in accordance with policies and/or
procedures established by this Agreement and as otherwise established by Resolution of the Board.
A summation of such payments shall be presented to the Board quarterly at a Board meeting as
part of the Treasurer’s quarterly report.
5.3 ACCOUNTS
All funds shall be placed in Authority accounts segregated from any Member accounts and
the receipt, transfer or disbursement of funds shall be accounted for in accordance with generally
accepted accounting principles applicable to government entities. There shall be strict
accountability for all funds. All interest earnings, revenues and expenditures shall be reported
quarterly to the Board as part of the Treasurer’s quarterly report.
5.4 EXPENDITURES WITHIN APPROVED ANNUAL BUDGET
All expenditures shall be within the limitations of the approved annual budget, and as
required for emergency repairs, or as such budget is amended by the Board.
5.5 REVENUES
Any revenue derived or generated from any use, lease, license or disposition of any portion
of the Ranch shall remain with the Authority to use for Authority purposes and to offset, in whole
or part, any Authority costs. In the event revenues exceed the Authority’s costs during any Fiscal
Year and the full funding of any reserve amount as established by the Board as provided in Section
5.1 above, such revenues shall be distributed at the end of each Fiscal Year to each Member as
follows: (1) if the portion of the Ranch from which such revenues are derived is located entirely
within Chino Hills, 50% to Industry and 50% to Chino Hills; (2) if the portion of the Ranch from
which such revenues are derived is located entirely within Diamond Bar, 50% to Industry and 50%
to Diamond Bar; and (3) if the portion of the Ranch from which any excess revenues are derived
is located in both Chino Hills and Diamond Bar, the revenue shall be split among the Members in
equal one-third shares. The Board may, on a case-by-case basis, provide for revenue sharing based
on a different formula in accordance with the voting requirements in Chapter 6 below.
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5.6 USES AS OF THE EFFECTIVE DATE
The Members agree that the use of the Ranch for cattle grazing as it currently exists and
persons that have been residing on the Ranch with the knowledge of Industry may remain on the
Ranch for a period of not less than 180 days from the Effective Date, provided that such use and
residency does not intensify or otherwise pose any danger or liability to the Authority as
determined by the Board. By the end of the 180-day period, the Board shall in good faith consider
such uses and residency and take such actions as the Board deems reasonably necessary to
formalize any contractual relationships pertaining to such use and residency or, in its sole
discretion, determine to cease such use and residency.
CHAPTER 6. BOARD VOTING REQUIREMENTS
All actions of the Board shall require at least four votes, including at least two votes from
Industry and at least one vote from each Member; provided, however, that special voting rules
shall apply in the following situations:
A. Any proposed use, lease or disposition of all or a portion of the Ranch by a Member or
third party, shall require four votes, including at least two votes from Directors from
Industry and at least one vote of a Director from the Member within whose
jurisdictional boundaries the Ranch property proposed for such use, lease or disposition
is located. If the portion of the Ranch proposed for a use, lease or disposition, is located
in both Diamond Bar and Chino Hills, approval of at least one Director from both
Diamond Bar and Chino Hills, and two Directors from Industry shall be required.
B. Any action that is required by the Authority to enforce Industry’s obligations under
Section 8.2H below, or Authority’s decision to retain separate legal counsel to defend
the Authority Parties against Claims pursuant to Section 8.2H below, shall require a
vote of at least four Directors, but no vote from a Director from Industry shall be
required.
C. Termination of a Member, penalties assessed against a Member for a breach under
Sections 9.3 and 9.4 below, and/or any action to enforce any Member liabilities or
obligations under this Agreement or the Purchase and Sale Agreement and Joint
Escrow Instructions between Industry dated February 6, 2019 by and between Industry
and the Authority, shall require a vote of at least four Directors, but no vote from a
Director from the breaching, obligated or liable Member shall be required.
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CHAPTER 7. LAND USE REGULATIONS/DEED RESTRICTION
Any use, lease, license or disposition of all or any portion of the Ranch as set forth in
Chapter 6 above, shall be consistent with the Deed Restriction and the land use, building and other
applicable laws, regulations and processing requirements of the jurisdiction in which the property
proposed for such use, lease, license or disposition is located (i.e., Chino Hills and/or Diamond
Bar). Board approval of a such use, lease, license or disposition of all or a portion of the Ranch
shall not in any way limit a Member’s regulatory authority over such proposed use or disposition.
Notwithstanding any other provision herein, Chino Hills and Diamond Bar each have the authority
to transfer residential units from the portion of the Ranch that is located within their respective
City’s boundaries without the approval of the Authority and the Authority shall have no rights or
obligations with regard to such transfers.
CHAPTER 8. LIABILITY/INSURANCE
8.1 LIABILITY
The debts, liabilities and obligations of the Authority shall not be considered the debts,
liabilities or obligations of any Member, except as otherwise provided in this Chapter or State law.
8.2 INDEMNIFICATION/HOLD HARMLESS/INSURANCE
A. Except as otherwise specifically provided in this Section 8.2, the Authority shall
defend, indemnify and hold harmless each Member, its officers, agents, employees,
attorneys, representatives and volunteers from and against any loss, injury, damage,
claim, lawsuit, liability, expense, or damages of any kind or nature arising out of or
in connection with this Agreement, including the acts or omissions of Member
employees, officers, Staff, agents, attorneys, representatives and volunteers, while
performing services for the Authority. The Authority shall finance its obligation
pursuant to this Section by establishing a liability reserve fund, by purchasing
commercial insurance, and/or by joining a joint powers insurance authority
JPIA”) as determined by the Board. In the event that the Authority’s financial
obligations to indemnify, defend and hold harmless, pursuant to this Section,
exceed the liability reserve fund and the proceeds from any applicable insurance or
JPIA coverage maintained by the Authority (“Unfunded Liability”), the Board shall
make a recommendation to each Member’s city council as to whether to fund
Unfunded Liability and the proportionate share of such funding to be contributed
by each Member. No Member shall be liable for such contribution unless each
Member’s city council agrees to the contribution toward the Unfunded Liability
recommended by the Board at the time the need to contribute to the Unfunded
Liability arises.
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B. Notwithstanding anything to the contrary in Section 8.2A above, the Authority, its
officers, agents, contractors, employees, representatives, Staff and volunteers, shall
not be liable, in any manner, to any Member, or to an officer, official, or employee
of any Member, for any loss, injury, damage, claim, lawsuit, liability, expense, or
damages which may be incurred by, or brought against a Member, or to an officer,
official or employee of any Member, regardless of whether or not such liability may
have arisen, in whole or in part, by the negligent acts, conduct, or omissions of one
or more of the above.
C. Each Member shall assign to the Authority its rights, title, and interest to recover
damages from any third party for claims arising out of this Agreement, to the extent
that the Authority has met its obligations to defend, indemnify and hold harmless
such Member pursuant to this Chapter.
D. Should any Member utilize the Ranch for its own purposes, which use must be
approved in accordance with Section 6.A above, such Member shall indemnify,
defend, and hold harmless the Authority and the other Members from all claims,
demands, actions, liability, or damages of any kind or nature, arising out of such
use.
E. Each Member shall defend, indemnify and hold harmless the Authority, its officers,
agents, and representatives from and against any loss, injury, damage, claim,
lawsuit, liability, expense, or damages of any kind or nature arising out of or in
connection with any conduct of its employees, officers, agents, attorneys,
representatives, and volunteers to the extent that any such loss, injury, damage,
claim, lawsuit, liability, expense or damages arises out of conduct which is not
within such person’s scope of duties for the Authority.
F. The Authority shall purchase general liability insurance or in the alternative,
participate in a joint insurance pool or some combination thereof, to cover any
damages or loss relating to the Ranch as well as any loss, injury, damage, claim,
lawsuit, liability, expense, or damages alleging a dangerous condition of the Ranch
or otherwise arising out of this Agreement. The cost of such insurance and/or
membership in a joint insurance pool shall be considered Maintenance Costs. A
current certificate of insurance evidencing general liability coverage or such other
proof as may be reasonably acceptable, shall be approved by the Authority's general
counsel and filed with the Secretary.
G. No provisions of this Agreement shall be construed as to require any Member to
obtain or maintain liability or other insurance coverage not otherwise required by
law.
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H. Notwithstanding anything to the contrary in this Agreement, Industry shall
indemnify, defend, and hold harmless the Authority, its Directors, officers, Staff,
agents, attorneys and employees, if any (collectively, “Authority Parties”), from
and against any loss, injury, damage, claim, lawsuit, liability, expense, or damages
collectively, “Claims”) of any kind or nature arising out of or in connection with
any dispute between Industry and San Gabriel Valley Water and Power, LLC, its
directors, officers, employees, assigns, successors, and affiliates (collectively, “San
Gabriel Parties”), including without limitation any dispute arising out of the Lease;
provided, however, that should the Authority Parties incur any legal costs in
defending any Claims, the costs of such defense shall be shared among the
Members as follows: Industry shall pay 50% of such costs; Chino Hills shall pay
35.5% of such costs and Diamond Bar shall pay 14.5% of such costs. In the event
any litigation is commenced by the Authority to enforce Industry’s obligations
under this Section 8.2H, the prevailing party in such litigation shall be entitled to
its reasonable costs and expenses, including without limitation, reasonable
attorneys’ fees and courts costs, as awarded by a court of competition jurisdiction,
in addition to any other relief to which the Authority may be entitled.
8.3 GOVERNMENT CLAIMS
A. To the extent authorized by Government Code section 935 and any other laws, all
claims against the Authority for money or damages, including any claims otherwise
excepted from the claims filing requirement by Government Code section 905, shall
be subject to and presented within the time and manner prescribed in Part 3 of
Division 3.6 of Title 1 of the Government Code. A signed written claim shall be
presented to the Authority by mail or personal delivery by the claimant or a person
authorized by claimant to act on his or her behalf. The claim shall conform to the
requirements of Government Code section 910.
B. Unless otherwise designated by the Board, the city manager of each Member, or
their designees shall comprise a Claims Committee. The Claims Committee shall,
in consultation with legal counsel for the Authority, review all claims and make
recommendations to the Board concerning their disposition.
CHAPTER 9. ADMISSION OR WITHDRAWAL OF MEMBERS
9.1 NEW MEMBERS
Additional public entities may become Members of the Authority upon such terms and
conditions as may be specified by the Board. New Members shall pay to the Authority an amount
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to be determined by the Board at the time of application and become new Members upon meeting
such additional conditions imposed upon them by the Board. Approval of a new Member shall be
in accordance with Chapter 6 above.
9.2 WITHDRAWAL
A Member may voluntarily withdraw from the Authority at the end of any Fiscal Year and
terminate its rights and obligations pursuant to this Agreement by giving written notice of its
intention to withdraw to the Secretary no later than December 31st. The written notice shall be
accompanied by a resolution from the city council of the Member specifying its intent to withdraw
from the Authority and shall be effective as of June 30th of the current Fiscal Year. Any written
notices received between December 31st and June 30th, shall be effective in the following Fiscal
Year. Withdrawal of a Member shall not relieve the withdrawing Member of its share of any debts
or other liabilities incurred by the Authority prior to the effective date of such withdrawal, or any
liabilities imposed upon or incurred by the Member pursuant to this Agreement prior to the
effective date of such withdrawal. Upon the effective date of a withdrawal, the withdrawing
Member shall not be entitled to any revenue being generated by a use, lease, or license of all or a
portion of the Ranch under Section 5.5; provided, however, that it shall remain entitled to its
proportionate share of revenue from (1) any existing or future long-term lease (i.e., a lease of all
or a portion of the Ranch with a term of thirty-five (35) years or more, including any extension
options thereto exercised by the tenant under such lease), and (2) any sale of all or any portion of
the Ranch when, and if such, occurs. The withdrawn Member’s share of any revenue from a long-
term lease or the sale of all or any portion of the Ranch shall be reduced, however, by (1) any
amounts that were due the Authority by the withdrawn member and have not been paid, and (2)
one third of the amount of Maintenance Costs, Extraordinary Costs and/or Unfunded Liabilities
that have been paid by the remaining Members since the date of the Member’s withdrawal, plus
interest on such costs at the rate of five percent (5%) per annum from the time they are incurred or
were due from the withdrawn Member, but not paid. The Board may, with the approval of each
Member’s city council, agree to different terms for a Member withdrawal.
9.3 BREACH
In addition to any other remedies available at law, including, but not limited to specific
performance, the Board shall have the authority to terminate the membership of any Member in
the event the Member materially breaches its duties pursuant to this Agreement. For the purposes
of this Section, the term “material breach” shall include, without limitation, a failure of a Member
to fund its Member Share Maintenance Cost or its Extraordinary Cost Member Share, the failure
to make any contributions or pay any assessment when due, and the failure to defend or indemnify
other Members as required in Sections 8.2.D, 8.2.E, and 8.2.H, above. The Board shall give the
breaching Member notice of the breach and the right to cure the breach within thirty (30) days of
the notice. If the breach cannot be reasonably cured within thirty (30) days, the Board shall provide
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additional time; provided that the breaching Member commences such cure within such thirty (30)
day period and diligently prosecutes such cure to completion. If the breaching Members fails to
cure or diligently pursue such cure of the breach within the time provided to the reasonable
satisfaction of the Board, the Board shall have the right to terminate the Membership of the
breaching Member. Termination of a Member for breach shall not relieve the terminated Member
of its proportionate share of any debts or other liabilities incurred by the Authority or any liabilities
imposed upon or incurred by the Member pursuant to this Agreement prior to the effective date of
such termination. For purposes of determining the terminated Member’s share of revenues, a
termination shall be treated the same as a withdrawal under Section 9.2 above; provided, however,
that any costs incurred by the remaining Members to cure the terminated Member’s breach shall
reduce the terminated Member’s right to share in revenues.
9.4 PENALTIES
Notwithstanding anything to the contrary in Section 9.3 above, and without waiving any
other remedies available by law or through this Agreement, the Board may determine not to
terminate a Member for a material breach. To the extent the non-breaching Members pay any
costs for which the breaching Member is responsible, including, but not limited to, costs to cure
the breaching Member’s breach, the breaching Member’s share of any revenues under this
Agreement shall be reduced by the amount paid by the non-breaching Member(s)’ to cure the
breach and the non-breaching Member(s) share of revenues shall be increased in proportion to the
amounts such Members have paid under this Section 9.4, until the non-breaching Members are
reimbursed for any such payments, plus interest at the rate of five percent (5)% per annum from
the time such payments are made.
CHAPTER 10. AUTHORITY TERMINATION AND DISPOSITION OF ASSETS
10.1 TERMINATION
The Authority shall continue to exercise the joint powers specified in this Agreement until
termination of this Agreement. This Agreement shall terminate if: (a) a majority of the Members
give the Authority written notice of their intention to withdraw, whether at the same time or
different times, as specified in Section 9.2; (b) all of the Members mutually agree to terminate this
Agreement; or (c) if the Ranch is purchased in its entirety by a third party or parties.
Notwithstanding the foregoing, no termination of the Authority shall occur until all Authority
debts, liabilities, and obligations and other payments are made in accordance with a resolution
adopted by the Board.
10.2 DISTRIBUTION OF PROPERTY
A. The Authority is the fee owner of the Ranch. In the event of a termination of this
Agreement due to the withdrawal by both Chino Hills and Diamond Bar pursuant
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to Section 9.2 above, Industry shall have the first right to purchase the Ranch,
subject to the Deed Restriction. Within forty-five (45) days of a written notice
received by the Authority that results in both Chino Hills and Diamond Bar
withdrawing from the Authority, Industry shall provide the Authority with written
notice of its desire to purchase the Ranch (“Industry Notice”). In the event the
Authority receives the Industry Notice, Industry’s purchase price shall be
4,165,000 (“Industry Purchase Price”), which is the difference between Industry’s
original contribution of $37,485,000 toward the Authority’s purchase of the Ranch
and the Authority’s original purchase price of the Ranch in the amount of
41,650,000 (“Authority Purchase Price”). The Industry Purchase Price shall be
paid to Chino Hills in the amount of $2,959,967 and paid to Diamond Bar in the
amount of $1,205,033.
B. In the event of a termination of this Agreement that is due in part to a withdrawal
of Industry pursuant to Section 9.2 above, Chino Hills and Diamond Bar shall have
the first right to purchase portions of the Ranch, subject to the Deed Restriction.
Within forty-five (45) days of receipt of Industry’s written notice of withdrawal,
Chino Hills and/or Diamond Bar shall provide the Authority with written notice of
their/its desire to purchase that portion of the Ranch lying within their respective
jurisdictions (“Purchase Notice”). In the event the Authority receives a Purchase
Notice from Chino Hills, the purchase price for Chino Hills shall be $26,615,698
Chino Hills Purchase Price”), which is the difference between Chino Hills’
original contribution of $2,959,967 toward the Authority Purchase Price and that
portion of the Authority Purchase Price attributable to the 1750.46 acres of the
Ranch lying within Chino Hills’ jurisdiction ($29,599,666). The full amount of the
Chino Hills Purchase Price shall be paid to Industry. In the event the Authority
receives a Purchase Notice from Diamond Bar, the purchase price shall be
10,844,312 (“Diamond Bar Purchase Price”), which is the difference between
Diamond Bar’s original contribution of $1,205,033 toward the Authority Purchase
Price and that portion of the Authority Purchase Price attributable to the 712.63
acres of the Ranch lying within Diamond Bar’s jurisdiction ($12,050,334). The full
amount of the Diamond Bar Purchase Price shall be paid to Industry.
C. In the event this Agreement is terminated for any other reason or a Member does
not elect its right of first purchase, the Ranch, or portion thereof, shall be conveyed
to the Members as tenants in common in the following manner:
1. That portion of the Ranch within the jurisdictional limits of Chino Hills shall be
conveyed to Industry and Chino Hills as tenants in common, 50% to Industry and
50% Chino Hills. In consideration thereof, Chino Hills shall pay to Industry
11,839,866 (“Chino Hills Tenancy Price”), which is 50% of the difference
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between that portion of the Authority’s original purchase price attributable to the
1750.46 acres of the Ranch lying within Chino Hills’ jurisdiction ($29,599,666)
and Chino Hills’ contribution of $2,959,967 to Authority’s original purchase price
of the Ranch.
2. That portion of the Ranch within the jurisdictional limits of Diamond Bar shall be
conveyed to Industry and Diamond Bar as tenants in common, 50% to Industry and
50% to Diamond Bar. In consideration thereof, Diamond Bar shall pay to Industry
4,820,134 (“Diamond Bar Tenancy Price”), which is 50% of the difference
between that portion of the Authority’s original purchase price attributable to the
712.63 acres of the Ranch lying within Diamond Bar’s jurisdiction ($12,050,334)
and Chino Hills’ contribution to Authority’s original purchase price of $1,205,033.
3. In the event Chino Hills and/or Diamond Bar do not, respectively, elect to pay the
Chino Hills Tenancy Price or the Diamond Bar Tenancy Price, Industry shall have
the first right to purchase the Ranch lying within the jurisdiction of the city not
making such an election. Industry’s purchase price for that portion of the Ranch
lying within Chino Hills shall be $2,959,967 and shall be paid to Chino Hills.
Industry’s purchase price for that portion of the Ranch lying within Diamond Bar
shall be $1,205,033 and shall be paid to Diamond Bar. Notwithstanding the
foregoing, the Members may seek a different method of disposing of the Ranch in
the event of an involuntary termination; provided it is approved first by the Board
pursuant to Section 6.A above and subsequent to such approval, by Industry’s city
council and the city council of the Member within whose jurisdictional boundaries
the Ranch property proposed for disposition is located.
D. Each Member hereby covenants and agrees that either during the duration of this
Agreement or upon the conveyance of the Ranch into tenants in common as set
forth above, each Member: (a) agrees that it shall not institute or cause to be
instituted the partition or division of all or any portion of the Ranch (or the sale or
long-term lease of all or a portion of the Ranch in lieu thereof); (b) agrees that no
partition or division of all or any portion of the Ranch (or sale or long-term lease in
lieu thereof) shall be permitted or occur; (c) expressly waives its respective rights
under applicable law relating to partition or division of all or any portion of the
Ranch (or sale or long-term lease in lieu thereof); and (d) shall direct and authorize
the Authority and its Members to execute such documents and take such actions as
necessary to implement the conveyances contemplated by this Section.
E. Upon termination of the Authority, any remaining funds, property (excluding the
Ranch itself) or other assets of the Authority, following discharge of all debts,
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liabilities and obligations of the Authority, shall be distributed to the Members
equally, unless the Board provides for an alternative distribution.
CHAPTER 11. MISCELLANEOUS
11.1 AMENDMENTS
This Agreement may only be amended with the approval of each Member’s city council in
writing and executed by all Members.
11.2 NOTICE
Any notice or instrument required to be given or delivered pursuant to this Agreement shall
be deemed given when personally delivered to the Member of the Authority, or deposited in the
United States mail, first class postage pre-paid, and properly addressed to the principal office of
the Member or the Authority, which may be changed upon written notice as provided herein to all
other Members. The addresses of the principal office for each Member, which may be changed
upon thirty (30) days written notice to the other Members, are as follows:
City of Industry:
15625 East Stafford Street
City of Industry, CA 91744
Attn: City Manager
With a copy to:
City of Industry
15625 East Stafford Street
City of Industry, CA 91744
Attn: City Attorney
City of Chino Hills:
14000 City Center Drive
Chino Hills, CA 91709
Attn: City Manager
With a copy to:
City of Chino Hills
14000 City Center Drive
Chino Hills, CA 91709
Attn: City Attorney
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City of Diamond Bar:
21810 Copley Drive
Diamond Bar, CA 91765
Attn: City Manager
With a copy to:
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
Attn: City Attorney
11.3 PARTIAL INVALIDITY
If one or more of the Chapters, Sections, paragraphs or provisions of this Agreement is
determined to be invalid or unenforceable by a court of competent jurisdiction, each and all of the
remaining Chapters, Sections, paragraphs or provisions shall not be affected and shall continue to
be valid and enforceable to the fullest extent permitted by law, provided, the remaining Chapters,
Sections, paragraphs or provisions can be construed in substance to constitute the Agreement the
Parties intended in the first instance.
11.4 GOVERNING LAW/VENUE
This Agreement shall be construed in accordance with and governed by the laws of the
State of California and the Members agree to submit to the jurisdiction of California courts. Venue
shall be Los Angeles County.
11.5 INTEGRATION
This Agreement constitutes the entire agreement of the Members with respect to those
matters addressed herein and supersedes all prior agreements, understandings, statements,
negotiations and representations between the Parties with respect thereto, including, but not limited
to, in its entirety, the 1999 Agreement.
11.6 NO THIRD-PARTY BENEFICIARIES
It is not the intent of the Parties to create duties or obligations to or rights in third parties
not a Party to this Agreement.
11.7 RECORDATION
Upon this Agreement being approved and fully executed, the Clerk of the Board shall cause
this Agreement to be recorded and provide the Board with evidence of such recordation.
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IN WITNESS WHEREOF, the Members have caused this Agreement to be executed by
their duly authorized officers, and to have their official seals affixed hereto as of the date first
stated above.
CITY OF INDUSTRY
By___________________________________
Troy Helling, City Manager
ATTEST:
By: _____________________________________
Julie Gutierrez-Robles
Deputy City Clerk
APPROVED AS TO FORM:
By: _________________________________
James M. Casso
City Attorney
CITY OF CHINO HILLS
By___________________________________
Konradt Bartlam, City Manager
ATTEST:
By: _____________________________________
Cheryl Balz
City Clerk
APPROVED AS TO FORM:
By: _________________________________
Mark Hensley
City Attorney
CITY OF DIAMOND BAR
By___________________________________
Daniel Fox, City Manager
ATTEST:
By: _____________________________________
Tommye Cribbins, City Clerk
APPROVED AS TO FORM:
By: _________________________________
David DeBerry, City Attorney
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Exhibit “A”
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Exhibit “A”
LEGAL DESCRIPTION OF THE LAND
PARCEL 1: (Los Angeles County)
A PORTION OF SECTION 1 AND ALL OF SECTION 12, TOWNSHIP 2 SOUTH, RANGE 9
WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF LOS ANGLES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SECTION 12; THENCE EAST 80
CHAINS TO THE SOUTHEAST CORNER OF SECTION 12; THENCE NORTH 80 CHAINS
TO THE NORTHEAST CORNER OF SAID SECTION 12; THENCE ON A COURSE OF
ABOVE NORTH 61° 28' WEST 90.83 CHAINS MORE OR LESS, TO A POINT IN THE
WEST LINE OF SAID SECTION 1, DISTANT 43.02 CHAINS NORTH OF THE
SOUTHWEST CORNER THEREOF; THENCE SOUTH ALONG THE WEST LINES OF
SAID SECTION 1 AND 12 TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION THEREOF INCLUDED WITHIN THE LAND,
DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED ON JULY 05,
1968 AS INSTRUMENT NO. 399 IN BOOK D-4405 PAGE 993 OF OFFICIAL RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE STATE OF CALIFORNIA, RECORDED ON
NOVEMBER 17, 1971 AS INSTRUMENTS NO. 253 AND 254 IN BOOK D-5259 PAGES 626
AND 630 OF OFFICIAL RECORDS IN SAID COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA RECORDED ON MARCH 07, 1975 AS INSTRUMENTS NO.
281 AND 282 IN BOOK D-6579 PAGES 1 AND 11 OF OFFICIAL RECORDS IN SAID
COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND DESCRIBED AS PARCEL A, IN THE GRANT DEED TO POMONA UNIFIED
SCHOOL DISTRICT, RECORDED APRIL 07, 1993 AS DOCUMENT NO. 93-653577, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
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PARCEL A:
THAT PORTION OF THE SOUTH HALF OF SECTION 1 AND THE NORTH HALF OF
SECTION 12,TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO MERIDIAN, IN
THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF PARCEL 3 OF PARCEL MAP
NO. 13350 AS PER MAP FILED IN BOOK 144 AT PAGES 12 AND 13 OF PARCEL MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, A RADIAL LINE
THROUGH SAID POINT BEARS NORTH 65° 33' 44" WEST; THENCE ALONG THE
SOUTHWESTERLY LINE OF SAID PARCEL 3 NORTH 61° 55' 24" WEST 242.81 FEET TO
THE MOST EASTERLY CORNER OF SAID LAND AS DESCRIBED IN THE DEED TO
THE STATE OF CALIFORNIA RECORDED ON NOVEMBER 17, 1971, AS INSTRUMENT
NO. 254 IN BOOK D-5259 PAGE 630 OF OFFICIAL RECORDS; THENCE ALONG THE
SOUTHWESTERLY BOUNDARIES OF SAID DEED TO THE STATE OF CALIFORNIA,
AS FOLLOWS:
SOUTH 80° 26' 22" WEST 357.29 FEET, NORTH 39° 50' 49" WEST 184.88 FEET; NORTH
08° 58' 26" WEST, 186.31 FEET TO THE SOUTHWESTERLY LINE OF PARCEL 1 AS
SHOWN ON RECORD OF SURVEY FILED IN BOOK 83 PAGES 62 AND 63 OF RECORD
OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE ALONG SAID LAST MENTIONED SOUTHWESTERLY LINE NORTH 61° 55'
24" WEST 2446.02 FEET; THENCE SOUTH 26° 04' 36" WEST 915.27 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A
RADIUS OF 1500.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 15° 00' 00", AN ARC DISTANCE OF 392.70 FEET TO
THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 120.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
NORTH 78° 55' 24" WEST; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 60°00'00", AN ARC DISTANCE OF 125.66 FEET; THENCE
TANGENT TO SAID LAST MENTIONED CURVE, SOUTH 48° 55' 24" EAST 170.71 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 2500.00 FEET; THENCE SOUTHEASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE 16° 02' 34", AN ARC DISTANCE OF 700.00
FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTH
HAVING A RADIUS OF 1125.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
SOUTH 25° 02' 02" WEST; THENCE EASTERLY ALONG SAID COMPOUND CURVE
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THROUGH A CENTRAL ANGLE OF 73° 27' 26", AN ARC DISTANCE OF 1442.33 FEET;
THENCE TANGENT TO SAID COMPOUND CURVE NORTH 41° 34' 36" EAST 225.00
FEET; THENCE SOUTH 61° 55' 24" EAST 70.00 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH HAVING A RADIUS OF 100.00 FEET;
THENCE EASTERLY ALONG SAID LAST MENTIONED CURVE THROUGH A
CENTRAL ANGLE OF 60° 00' 00", AN ARC DISTANCE OF 104.72 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE TO THE SOUTH HAVING A RADIUS
OF 75.00 FEET; A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 31° 55' 24"
EAST; THENCE EASTERLY ALONG SAID REVERSE CURVE THROUGH A CENTRAL
ANGLE OF 78° 30' 00" AN ARC DISTANCE OF 102.76 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 350.00
FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 46° 34' 36" EAST;
THENCE SOUTHEASTERLY ALONG SAID COMPOUND CURVE THROUGH A
CENTRAL ANGLE OF 22° 30' 00", AN ARC DISTANCE OF 137.44 FEET; THENCE
TANGENT TO SAID LAST COMPOUND CURVE SOUTH 20° 55' 24" EAST 105.00
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTH AND
HAVING A RADIUS OF 265.00 FEET; THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 112° 00' 00", AN ARC DISTANCE OF 518.01 FEET;
THENCE TANGENT TO LAST MENTIONED CURVE NORTH 47° 04' 36" EAST 137.02
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTH AND
HAVING A RADIUS OF 200.00 FEET; THENCE EASTERLY ALONG SAID LAST
MENTIONED CURVE THROUGH A CENTRAL ANGLE OF 67° 27' 44", AN ARC
DISTANCE OF 235.49 FEET; THENCE TANGENT TO SAID LAST MENTIONED CURVE,
SOUTH 65° 27' 40" EAST 38.64 FEET TO THE WESTERLY LINE OF CHINO HILLS
PARKWAY (100.00 FEET WIDE) AS EXISTED ON APRIL 5, 1993, AND AS
ESTABLISHED BY THE COUNTY ENGINEER OF SAN BERNARDINO; THENCE
ALONG SAID CHINO HILLS PARKWAY, AS FOLLOWS:
NORTH 24° 32' 20" EAST 72.06 FEET AND NORTHERLY ALONG A TANGENT CURVE
CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1750.00 FEET THROUGH
A CENTRAL ANGLE OF 00° 06' 04", AN ARC DISTANCE OF 3.09 FEET TO THE POINT
OF BEGINNING.
AND ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN
THE LAND DESCRIBED AS PARCEL RW-1, CHINO HILLS PARKWAY RIGHT-OF-
WAY, BY FINAL ORDER AND JUDGMENT IN CONDEMNATION, RECORDED
AUGUST 25, 1995, INSTRUMENT NO. 95-1398248, OFFICIAL RECORDS.
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PARCEL 2 (San Bernardino County)
REAL PROPERTY IN THE CITY OF CHINO HILLS, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL NO. 1:
THOSE PORTIONS OF SECTIONS 14 AND 23, IN GOVERNMENT LOT 38, TOWNSHIP 2
SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO
SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN RECORD OF SURVEY
RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, LYING SOUTHEASTERLY OF THE SAID
RANCHO LINE BETWEEN STATIONS 13 AND 14, AS SHOWN ON SAID MAP.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 104, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
PARCEL NO. 2:
THE WEST 1/2 OF SECTION 13; THE WEST 1/2 OF SECTION 24; THE NORTHWEST 1/4
OF SECTION 25 AND THE NORTH 1/2 OF SECTION 26, ALL IN GOVERNMENT LOT 38,
TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN
THE RANCHO SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN THE RECORD OF
SURVEYS, RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 83, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 92, OFFICIAL RECORDS.
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ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 104, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
APNs: 1000-011-19, 1000-011-20, 1000-011-21, 1000-011-22, 1000-011-13, 1000-011-14,
1000-031-14, 1000-031-15, 8701-022-270, 8701-021-271 and 8701-022-273.
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EXHIBIT "B"
FORM OF AUTHORITY PURCHASE AGREEMENT
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
TRES HERMANOS RANCH)
This Purchase and Sale Agreement and Joint Escrow Instructions (Tres Hermanos Ranch)
this "Agreement"), dated as of February 7, 2019 (the "Effective Date"), is entered into by and
between the CITY OF INDUSTRY, a municipal corporation ("Seller" or "Industry"), and the
TRES HERMANOS CONSERVATION AUTHORITY, a joint exercise of powers authority
established pursuant to Section 6500 et seq. of the California Government Code ("Buyer"),
which authority is comprised of the City of Chino Hills ("Chino Hills"), the City of Diamond
Bar ("Diamond Bar") and Industry (Seller and Buyer are hereinafter sometimes individually
referred to as a "Party" and collectively referred to as the "Parties"), with reference to the
following facts:
RECITALS
A. Seller is in escrow (the "First Escrow") with First American Title Insurance
Company (Escrow No. NCS-885653) to purchase that certain real property commonly known as
Tres Hermanos Ranch, which consists of the following APNs: 8701-021-271, 8701-022-270 and
8701-022-273 (Los Angeles County) and 1000-011-19, 1000-011-20, 1000-011-21 and 1000-
011-22, 1000-021-13 and 1000-021-14, 1000-031-14 and 1000-031-15 (San Bernardino County),
as more particularly described on Exhibit A attached hereto, together with all of Seller's right,
title and interest in and to any and all hereditaments, appurtenances, rights, permits, licenses,
privileges, development rights and easements relating to such land, including without limitation
Seller's right, title and interest in and to all streets, alleys and rights-of-way in, on, across, in
front of, abutting or adjoining such real property and all water rights and mineral rights
collectively, the "Land").
B. On or about August 24, 2017, the Oversight Board (the "Oversight Board") of
the Successor Agency approved Seller's purchase of the Property via adoption of Resolution No.
OB 2017-05, for the total purchase price of $41,650,000.
C. Seller, the City Council of the City of Industry (the "Industry City Council"), the
Successor Agency, the Board of Directors of the Successor Agency to the Industry-Urban
Development Agency, Chino Hills and Diamond Bar have entered into that certain Settlement
Agreement and Mutual Releases (the "Settlement Agreement") dated as of February 5, 2019, a
copy of which (without exhibits) is attached hereto as Exhibit D, pursuant to which Chino Hills
and Diamond Bar have agreed to dismiss certain lawsuits filed by Chino Hills and Diamond Bar
against Seller, the Successor Agency and other parties relating to the Land upon the satisfaction
of specified conditions precedent, including without limitation the execution of this Agreement
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and the transfer of the Property (as defined in Section 1, below) to Buyer pursuant to the terms
and conditions hereof.
D. Therefore, Buyer desires to purchase the Property from Seller, and Seller desires
to sell the Property to Buyer, on the terms and conditions contained in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, Seller and Buyer hereby agree as follows:
1. PURCHASE AND SALE. Pursuant to the terms and conditions contained in this
Agreement, Seller hereby agrees to sell and convey to Buyer, and Buyer hereby agrees to
purchase and accept from Seller, the following property (collectively, the "Property"): (a) the
Land ; and (b) all buildings, fixtures, structures, parking areas, landscaping and other
improvements located on the Land (the "Improvements").
2. PURCHASE PRICE AND INDEPENDENT CONSIDERATION.
A. Purchase Price. The purchase price for the Property shall be Forty-One Million
Six Hundred Fifty Thousand Dollars ($41,650,000.00) (the "Purchase Price"), of which (a)
Industry shall be credited with a payment of $37,485,000.00, (b) Diamond Bar shall pay
1,205,033.00 and (c) the Chino Hills shall pay $2,959,967.00 (each, a "Payment" and,
collectively, the "Payments"). With the exception of Industry's credit, the Payments shall be
deposited into the Escrow (as defined in Section 3.A, below) at least one (1) business day prior
to the Close of Escrow (as defined in Section 3.C, below) and the Purchase Price shall be paid to
Seller in cash at the Close of Escrow. Notwithstanding the above, if any of the conditions
precedent to closing set forth in Section 5, below, are not satisfied or waived, by the applicable
Party and the Close of Escrow fails to occur as a result thereof, the Payments shall be fully
refundable, and shall be refunded, to Chino Hills and Diamond Bar.
B. Independent Consideration. Upon the execution of this Agreement, Buyer shall
pay the sum of One Hundred Dollars ($100.00) (the "Independent Consideration") to Seller,
which shall be completely nonrefundable to Buyer in all events, it being the intent of the Parties
to recognize that such amount has been bargained for and agreed to as independent consideration
for Buyer's exclusive right to purchase the Property and for Seller's execution and delivery of this
Agreement.
3. ESCROW.
A. Opening of Escrow. Buyer has opened an escrow (the "Escrow") at the offices of
First American Title Insurance Company ("Escrow Holder"). The principal office of Escrow
Holder for purposes of this Agreement is 18500 Von Karman Avenue, Suite 600, Irvine,
California 92612, Attention: Patty Beverly, Escrow Officer, Telephone: (949) 885-2465,
Email: pbeverly@firstam.com. Upon mutual execution of this Agreement, Buyer and Seller
shall deliver three fully executed originals of this Agreement to Escrow Holder and Escrow
Holder shall promptly execute the attached Acceptance of Joint Escrow Instructions and shall
thereupon be empowered to act under this Agreement and shall thereafter carry out its duties as
Escrow Holder hereunder. The purchase and sale of the Property shall be completed through the
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Escrow. This Agreement, together with the provisions of Exhibit B attached hereto, shall
constitute joint escrow instructions to Escrow Holder in connection with the Escrow. In the
event of any inconsistency between the provisions in the main body of this Agreement and the
provisions of Exhibit B, the provisions in the main body of this Agreement shall prevail.
B. Additional Instructions. Buyer and Seller hereby agree to execute such additional
instructions not inconsistent with this Agreement as may be reasonably required by Escrow
Holder in order to perform its obligations as Escrow Holder hereunder.
C. Closing of Escrow. The Escrow shall close (the "Close of Escrow") on or before
February 13, 2019, after satisfaction of the conditions precedent to closing set forth in Sections 4,
below, unless otherwise extended in writing by the Parties (the "Closing Deadline"). For
purposes of this Agreement, the Close of Escrow shall mean the date on which the Grant Deeds
as defined in Section 5.A(iii), below) are recorded in the Los Angeles County Recorder's Office
and the San Bernardino County Recorder's Office (the "Official Records").
4. TITLE INSURANCE.
A. Title Pro Forma. Buyer acknowledges receipt on February 5, 2019 of pro forma
policy No. 885653 for the Property (the "Title Pro Forma") prepared by First American Title
Insurance Company (the "Title Company"). In the event that the Title Company delivers any
supplement to the Title Pro Forma to Buyer after the date of this Agreement that includes any
new title matter affecting the Property ("New Title Matter") that is not set forth in the original
Title Pro Forma and would (i) have a material adverse effect on the value or contemplated us of
the Property, then Buyer shall have the right to object to any such New Title Matter(s) within
five business (5) days following Buyer's receipt of such supplemental title report by written
notice to Seller and Escrow Holder, provided that (A) any New Title Matter that is a monetary
lien encumbering all or a portion of the Property is deemed disapproved and (B) the Closing
Deadline shall be extended as necessary to accommodate such five (5) business-day objection
period and a period of five (5) business days thereafter for Seller to respond to any objection by
Buyer. In the event that such New Title Matter(s) are not removed, or modified or endorsed in a
manner reasonably acceptable to Buyer, prior to the Close of Escrow, Buyer shall have the right
either to (A) waive its objection to such New Title Matter(s), in which case such New Title
Matter(s) shall be conclusively deemed approved, or (B) cancel the Escrow by written notice to
Seller and Escrow Holder, in which case the provisions in the final sentence of Section 2.A,
above, and the final paragraph of Section 5.B, above, shall apply.
B. Title Insurance. Prior to the Close of Escrow, Buyer shall obtain from the Title
Company an irrevocable and unqualified commitment to deliver to Buyer at the Close of Escrow
an ALTA owner's extended coverage policy of title insurance, including the endorsements in the
Title Pro Forma (the "Title Policy"), naming Buyer as insured, with a liability amount equal to
the Purchase Price, showing title to the Property to be vested in Buyer, subject only to (a) the
exceptions shown on the Title Pro Forma, (b) any New Title Matter(s) approved by Buyer
pursuant to Section 4.A, above, (c) matters of title suffered or created by or with the written
consent of Buyer and (d) the standard printed exceptions to coverage contained in the Title
Policy (collectively, the "Approved Exceptions"). The Title Policy shall be conclusive
evidence of good and indefeasible title as to all matters insured thereby. Escrow Holder shall
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provide the original Title Policy to Seller. Seller agrees to execute the Title Company's standard
owner's affidavit if and to the extent required by the Title Company with respect to the issuance
of the Title Policy.
5. CONDITIONS TO CLOSING.
A. Buyer's Conditions to Closing. The Close of Escrow and Buyer's obligation to
purchase the Property pursuant to this Agreement are subject to the satisfaction of the following
conditions at or prior to the Close of Escrow:
i) Seller's Acquisition of the Property. Seller shall have acquired fee title to
the Property prior to the Close of Escrow.
ii) Title Insurance. The Title Company shall have satisfied the condition
relating to the Title Policy set forth in Section 4.B, above.
iii) Delivery of Grant Deeds. Not less than one (1) business day prior to the
Close of Escrow, Seller shall have deposited into the Escrow, two (2) originals of the Grant Deed
in the form attached hereto as Exhibit C, each duly executed and acknowledged by Seller and in
recordable form (collectively the "Grant Deeds" and each individually, a "Grant Deed").
iv) Delivery of Additional Documents. Buyer shall have timely delivered to
Escrow Holder such other instruments and documents that may be reasonably required by
Escrow Holder to transfer the Property to Buyer.
v) No Default. Seller shall not be in material default of Seller's obligations
under this Agreement.
vi) Representations and Warranties. All of the representations and warranties
made by Seller in this Agreement or in any document, instrument or certificate that shall be
delivered by Seller to Buyer under this Agreement shall be true and correct in all material
respects as of the Close of Escrow.
vii) No Material Adverse Change. Following the execution of this Agreement,
and until the Close of Escrow, no change shall have occurred with respect to the physical
condition of the Property that (a) could have a material adverse effect on the value of the
Property or its contemplated use or (b) renders untrue any representation or warranty of Seller
under this Agreement in a material respect.
If any of the conditions precedent to Buyer's obligations set forth above fail to occur at or before
the Close of Escrow through no fault of Buyer, then Buyer may either (A) waive such condition
and proceed to close the Escrow or (B) cancel the Escrow and terminate this Agreement by
written notice to Seller and Escrow Holder, in which case Escrow Holder shall return all of the
Payments it has received, together with all interest earned thereon, to the parties who deposited
the Payments into the Escrow.
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B. Seller's Conditions to Closing. The Close of Escrow and Seller's obligation to sell
the Property to Buyer pursuant to this Agreement are subject to the satisfaction of the following
conditions precedent at or prior to the Close of Escrow:
i) No Default. Buyer shall not be in material default of Buyer's obligations
under this Agreement, including, but not limited to, Buyer's obligation to deliver the Purchase
Price into the Escrow on or before the Closing Deadline.
ii) Delivery of Certificate of Acceptance. Not less than one (1) business day
prior to the Close of Escrow, Buyer shall have deposited into Escrow two originals of a
certificate of acceptance in the form included in Exhibit C attached hereto, duly executed by
Buyer.
iii) Representations and Warranties. All of the representations and warranties
made by Buyer in this Agreement or in any document, instrument or certificate that shall be
delivered by Buyer to Seller under this Agreement shall be true and correct in all material
respects as of the Close of Escrow.
iv) Delivery of Additional Documents. Buyer shall have timely delivered to
Escrow Holder such other instruments and documents that may be reasonably required by
Escrow Holder to transfer the Property to Buyer.
If any of the conditions precedent to Seller's obligations set forth above fail to occur at or before
the Close of Escrow through no fault of Seller, then Seller may either (A) waive such condition
and proceed to close the Escrow or (B) cancel the Escrow and terminate this Agreement by
written notice to Buyer and Escrow Holder, in which case Escrow Holder shall return all of the
Payments it has received, together with all interest earned thereon, to the parties who deposited
the Payments into the Escrow.
6. REPRESENTATIONS AND WARRANTIES.
A. Buyer hereby represents and warrants to Seller that (i) it has the legal power, right
and authority to enter into this Agreement and the instruments referenced herein, and to
consummate the transactions contemplated hereby, (ii) all requisite action (corporate, trust,
partnership or otherwise) has been taken by Buyer in connection with entering into this
Agreement and the instruments referenced herein, and the consummation of the transactions
contemplated hereby, and (iii) no consent of any other party is required for Buyer to execute this
Agreement and the instruments referenced herein and consummate the transaction contemplated
herein.
B. Seller hereby represents and warrants to Buyer that (i) it has the legal power, right
and authority to enter into this Agreement and the instruments referenced herein, and to
consummate the transactions contemplated hereby; (ii) all requisite action (corporate, trust,
partnership or otherwise) has been taken by Seller in connection with entering into this
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Agreement and the instruments referenced herein, and the consummation of the transactions
contemplated hereby; and (iii) no consent of any other party is required for Seller to execute this
Agreement and the instruments referenced herein and consummate the transaction contemplated
herein.
C. Buyer hereby represents and warrants to Seller that the execution, delivery and
performance of this Agreement by Buyer does not and will not materially conflict with, or
constitute a material violation or material breach of, or constitute a default under (i) the joint
powers agreement of Buyer, (ii) any applicable Law (as defined in Section 6.E, below) binding
upon or applicable to Buyer or (iii) any material agreement to which Buyer is a party.
D. Seller hereby represents and warrants to Buyer that the execution, delivery and
performance of this Agreement by Seller does not and will not materially conflict with, or
constitute a material violation or material breach of, or constitute a default under (i) the charter
or incorporation documents of Seller, (ii) any applicable law binding upon or applicable to Seller
or (iii) any material agreement to which Seller is a party.
E. Seller hereby represents and warrants to Buyer that (i) Seller has not released any
Hazardous Materials (as defined below) on the Property, (ii) Seller has no actual knowledge of
any release of Hazardous Materials on the Property, (iii) Seller has not received any notice of
any actual or alleged violation of any federal, State or local law, ordinance, rule, regulation or
order ("Law") from any governmental authority pertaining to the Property, or any investigation
relating thereto. and (iv) Seller does not have in its possession or control any report or study with
respect to the environmental condition of the Property. For purposes of this Agreement, the term
Hazardous Materials" shall mean any and all of those materials, substances, wastes,
pollutants, contaminants, byproducts, or constituents which have been determined to be injurious
to health or the environment, including without limitation those designated as hazardous or toxic
by any federal, state or local law, ordinance, rule, regulation or policy, and any other materials,
substances, wastes, pollutants, contaminants, by-products or constituents requiring remediation
under federal, state or local laws, ordinances, rules, regulations or policies.
F. Seller hereby represents and warrants to Buyer that, other than the Approved
Exceptions, (i) the only current occupants of the Property are Sherry Woods and Honorio Estrada
Macias and his family (the "Current Occupants"), who occupy the Property based on non-
written arrangements with the Successor Agency, (ii) the Property is not encumbered by any
options to purchase, rights of first refusal or contracts for lease or sale of the Property, (iii) there
are no liens or claims against the Property, (iv) there are no agreements that will affect the
Property or bind Buyer following the Close of Escrow, and (v) there is no actual or threatened (in
writing) litigation, proceeding, claim, appeal or arbitration against the Successor Agency or
Seller that would, if adversely determined, materially and adversely affect Seller's ability to
perform its obligations under this Agreement or consummate the transactions contemplated
hereby.
G. Seller hereby represents and warrants to Buyer that Seller has not entered into any
contract or other agreement with San Gabriel Valley Water and Power, LLC or any affiliate or
member thereof relating to the Property, other than that certain Master Ground Lease dated as of
May 17, 2016 and four (4) amendments thereto dated as of November 15, 2016, April 13, 2017,
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May 23, 2017 and June 30, 2017 (as amended, the "Master Lease"). It is acknowledged that, as
required by the Master Lease, the Property was not acquired by Seller on or before December 31,
2018, and the Parties therefore believe that the Property cannot be added to the real property
subject to the Master Lease.
H. The respective representations and warranties made by Seller and Buyer in this
Section 6 shall survive the Close of Escrow for a period of two (2) years and shall not merge into
the Grant Deeds. Each of the representations and warranties of Seller and Buyer that is to
survive the Close of Escrow shall be deemed remade as of the Close of Escrow.
I. Subject to the two-year limitation on the survival of the representations and
warranties specified in Section 6.G, above, Seller shall indemnify, defend, reimburse and hold
harmless Buyer from and against any and all claims, demands, losses, obligations, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs, whether or not any
action is filed or prosecuted) arising from or relating to any untruth of any of the representations
and warranties made by Seller pursuant to Section 6.G, above.
J. Subject to the two-year limitation on the survival of the representations and
warranties specified in Section 6.G, above, Buyer shall indemnify, defend, reimburse and hold
harmless Seller from and against any and all claims, demands, losses, obligations, costs and
expenses (including, without limitation, reasonable attorneys' fees and costs, whether or not any
action is filed or prosecuted) arising from or relating to any untruth of any of the representations
and warranties made by Buyer pursuant to Section 6.G, above.
7. CONDITION OF PROPERTY. Except as otherwise expressly and specifically
provided in this Agreement, the Property shall be conveyed from Seller to Buyer on an "AS IS"
condition and basis with all faults and Buyer agrees that Seller has no obligation to make
modifications, replacements or improvements thereto. Except as expressly and specifically
provided in this Agreement, Buyer and anyone claiming by, through or under Buyer hereby
waives its right to recover from and fully and irrevocably releases Seller, its respective officers,
directors, employees, representatives, agents, advisors, servants, attorneys, successors and
assigns, and all persons, firms, corporations and organizations acting on the City's behalf
collectively, the "Released Parties") from any and all claims, responsibility and/or liability that
Buyer may now have or hereafter acquire against any of the Released Parties for any costs, loss,
liability, damage, expenses, demand, action or cause of action arising from or related to the
matters pertaining to the Property described in this Section 7, excepting in all cases those costs,
losses, liabilities, damages, expenses, actions and causes of action arising from or related to (a) a
material matter known to Seller and not disclosed to Buyer, (b) a default by Seller under this
Agreement, (c) the untruth of any representation and warranty by Seller to Buyer in Section 6,
above, in any material respect or (d) the gross negligence or willful misconduct of Seller. This
release includes claims of which Buyer is presently unaware or which Buyer does not presently
suspect to exist which, if known by Buyer, would materially affect Buyer's release of the
Released Parties. Subject to the limitations with respect to the release at the end of the first
sentence of this Section, if the Property is not in a condition suitable for the intended use or uses,
then it is the sole responsibility and obligation of Buyer to take such action as may be necessary
to place the Property in a condition suitable for the intended use. Except as otherwise expressly
and specifically provided in this Agreement (which exception includes the representations and
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warranties of Seller in Section 6, above) and without limiting the generality of the foregoing,
THE CITY MAKES NO REPRESENTATION OR WARRANTY AS TO THE FOLLOWING:
i) THE VALUE OF THE PROPERTY; (ii) THE INCOME TO BE DERIVED FROM THE
PROPERTY; (iii) THE HABITABILITY, MARKETABILITY, PROFITABILITY,
MERCHANTABILITY OR FITNESS FOR PARTICULAR USE OF THE PROPERTY;
iv) THE MANNER, QUALITY, STATE OF REPAIR OR CONDITION OF THE PROPERTY;
v) THE COMPLIANCE OF OR BY THE PROPERTY OR ITS OPERATION WITH ANY
LAWS, RULES, ORDINANCES OR REGULATIONS OF ANY APPLICABLE
GOVERNMENTAL AUTHORITY OR BODY; (vi) COMPLIANCE WITH ANY
ENVIRONMENTAL PROTECTION OR POLLUTION LAWS, RULES, REGULATIONS,
ORDERS OR REQUIREMENTS; (vii) THE PRESENCE OR ABSENCE OF HAZARDOUS
MATERIALS AT, ON, UNDER OR ADJACENT TO THE PROPERTY; AND (viii) THE
FACT THAT ALL OR A PORTION OF THE PROPERTY MAY BE LOCATED ON OR
NEAR AN EARTHQUAKE FAULT LINE.
BUYER HEREBY ACKNOWLEDGES THAT IT HAS READ AND IS FAMILIAR WITH
THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542, WHICH IS SET
FORTH BELOW:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE
CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE
RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE
DEBTOR OR RELEASED PARTY."
BY INITIALING BELOW, BUYER HEREBY WAIVES THE PROVISIONS OF SECTION
1542 SOLELY IN CONNECTION WITH THE MATTERS WHICH ARE THE SUBJECT OF
THE FOREGOING WAIVERS AND RELEASES.
Buyer's Initials
The waivers and releases by Seller herein contained shall survive the Close of Escrow and the
recordation of the Grant Deeds and shall not be deemed merged into the Grant Deeds upon their
recordation.
8. CLOSE OF ESCROW.
A. Delivery of Documents and Payment. Not less than one (1) business day prior to
the Close of Escrow, Seller and Buyer shall deposit into Escrow the documents described in
Section 5, above. Escrow Holder shall deliver to Seller the Purchase Price when (i) Escrow
Holder has recorded the Grant Deeds in the Official Records, (ii) the Title Company is prepared
to issue to Buyer the Title Policy as provided in Section 4.B, above, and (3) all of the conditions
precedent specified in Section 5, above, have been satisfied or waived.
B. Recordation and Delivery. At the Close of Escrow, Escrow Holder shall (i)
record or cause to be recorded the Grant Deeds in the Official Records, (ii) deliver the Title
Policy as provided in Section 4.B, above, (iii) disburse all Payments deposited with Escrow
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Holder in payment of the Purchase Price and related closing and other costs associated with the
Escrow, (iv) deliver or cause to be delivered to Seller conformed copies of the recorded Grant
Deeds, and (v) deliver or cause to be delivered to Buyer conformed copies of the recorded Grant
Deeds.
C. Obligation to Refrain from Discrimination. Seller covenants and agrees for itself,
its successors and assigns, and for every successor in interest to the Property or any part thereof,
that there shall be no discrimination against or segregation of any person, or group of persons, on
account of sex, marital status, age, handicap, race, color, religion, creed, national origin or
ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the
Property, and Seller (itself or any person claiming under or through Seller) shall not establish or
permit any such practice or practices of discrimination or segregation with reference to the
selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees, or
vendees of the Property or any portion thereof. Notwithstanding the foregoing, upon the Close
of Escrow, the City shall be relieved of any further responsibility under this Section 8.C as to the
Property.
D. Form of Nondiscrimination and Nonsegregation Clauses. All deeds, leases or
contracts for sale for all or any portion of the Property shall contain the following
nondiscrimination or nonsegregation clauses:
i) In deeds: "The grantee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through
them, that there shall be no discrimination against or segregation of, any person or group of
persons on account of any basis listed in subdivision (a) or (d) of Section 12955 of the California
Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California
Government Code, in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of
the premises herein conveyed, nor shall the Grantee himself or herself, or any person claiming
under or through him or her, establish or permit any practice or practices of discrimination or
segregation with reference to the selection, location, number, use or occupancy of tenants,
lessees, subtenants, sublessees or vendees in the premises herein conveyed. The foregoing
covenants shall run with the land.
Notwithstanding the immediately preceding paragraph, with respect to familial
status, said paragraph shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the California Government Code. With respect to familial status, nothing in
said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of
the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955
of the California Government Code shall apply to said paragraph."
ii) In leases: "The lessee herein covenants by and for himself or herself, his
or her heirs, executors, administrators and assigns, and all persons claiming under or through him
or her, and this lease is made and accepted upon and subject to the following conditions: That
there shall be no discrimination against or segregation of any person or group of persons, on
account of any basis listed in subdivision (a) or (d) of Section 12955 of the California
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Government Code, as those bases are defined in Sections 12926, 12926.1, subdivision (m) and
paragraph (1) of subdivision (p) of Section 12955, and Section 12955.2 of the California
Government Code, in the leasing, subleasing, transferring, use or occupancy, tenure or
enjoyment of the premises herein leased nor shall the lessee himself or herself, or any person
claiming under or through him or her, establish or permit any such practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, sublessees, subtenants or vendees in the premises herein leased.
Notwithstanding the immediately preceding paragraph, with respect to familial
status, said paragraph shall not be construed to apply to housing for older persons, as defined in
Section 12955.9 of the California Government Code. With respect to familial status, nothing in
said paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of
the California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51
and Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955
of the California Government Code shall apply to said paragraph."
iii) In contracts: "The contracting party or parties hereby covenant by and for
himself or herself and their respective successors and assigns, that there shall be no
discrimination against or segregation of any person or group of persons, on account of any basis
listed in subdivision (a) or (d) of Section 12955 of the California Government Code, as those
bases are defined in Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision
p) of Section 12955, and Section 12955.2 of the California Government Code, in the sale, lease,
sublease, transfer, use, occupancy, tenure or enjoyment of the premises, nor shall the contracting
party or parties, any subcontracting party or parties, or their respective assigns or transferees,
establish or permit any such practice or practices of discrimination or segregation.
Notwithstanding the immediately preceding paragraph, with respect to familial status,
said paragraph shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the California Government Code. With respect to familial status, nothing in said
paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the
California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of
the California Government Code shall apply to said paragraph."
9. RESTRICTIVE COVENANTS. Buyer's use of the Property shall be limited to open
space, public uses and preservation uses. The foregoing restrictive covenant shall (i) remain in
effect in perpetuity, (ii) be binding on the Property and Buyer and its successors and assigns and
iii) be set forth with particularity in any document of transfer or conveyance by Buyer.
10. ENVIRONMENTAL INDEMNITIES.
A. Buyer's Indemnity. Buyer shall indemnify, defend, reimburse and hold harmless
Seller from and against any and all Environmental Damages (as defined below) arising from or
relating to (i) the presence or release of Hazardous Materials in, on or under the Property, but
only to the extent that such release occurs after the Close of Escrow, and (ii) any violation by
Buyer of any Environmental Requirements (as defined below) pertaining to the Property and the
activities thereon.
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B. Seller's Indemnity. Seller shall indemnify, defend, reimburse and hold harmless
Buyer from and against any and all Environmental Damages arising from or relating to (i) the
presence or release of Hazardous Materials in, on or under the Property, but only to the extent
that such release occurred prior to the Close of Escrow, and (ii) any violation by Seller of any
Environmental Requirements pertaining to the Property and the activities thereon.
C. Additional Indemnity Provisions.
i) The indemnification obligations set forth in Sections 10.A and 10.B,
above, shall include, but not be limited to, the burden and expense of defending all claims, suits
and administrative proceedings (with counsel reasonably approved by the indemnified parties),
even if such claims, suits or proceedings are groundless, false or fraudulent, and conducting all
negotiations of any description, and paying and discharging, when and as the same become due,
any and all judgments, penalties or other sums due against such indemnified persons. The
indemnified Party, at its sole expense, may employ additional counsel of its choice to associate
with counsel representing the indemnifying Party.
ii) The indemnification obligations set forth in in Sections 10.A and 10.B,
above, shall not apply to (i) any costs or expenses not reasonably incurred by the indemnified
Party or (ii) any Environmental Damages resulting from the gross negligence or willful
misconduct of the indemnified Party.
iii) The indemnification obligations under this Section 10 shall survive the
Close of Escrow and shall not merge into the Grant Deeds.
D. Definitions.
Environmental Damages" means all claims, judgments, damages, losses, penalties, fines,
liabilities (including strict liability), encumbrances, liens, costs and expenses of investigation and
defense of any claim, whether or not such claim is ultimately defeated, and of any good faith
settlement of judgment approved by Seller, of whatever kind or nature, including without
limitation reasonable attorneys' fees and disbursements and consultants' fees, any of which are
incurred at any time as a result of the existence of any Hazardous Materials in, on or under the
Property, or the existence of a violation of Environmental Requirements pertaining to the
Property, and including:
i) damages for personal injury, or injury to property or natural resources
occurring on the Property or originating on the Property; and
ii) fees incurred for the services of attorneys, consultants, contractors,
experts, laboratories and all other costs incurred in connection with the investigation or
remediation of such Hazardous Materials or violation of Environmental Requirements, including
the preparation of any feasibility studies or reports or the performance of any remediation work
required by any Governmental Authority.
Environmental Requirements" means all Laws of any and all Governmental Authorities
relating to the protection of human health or the environment, including (i) all requirements
pertaining to reporting, licensing, permitting, investigation and remediation of emissions,
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discharges, releases or threatened releases of Hazardous Materials and other chemical
substances, pollutants, contaminants or hazardous or toxic substances, materials or wastes,
whether solid, liquid or gaseous in nature, into the air, surface water, groundwater or land, or
relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport
or handling of Hazardous Materials and other chemical substances, pollutants, contaminants or
hazardous or toxic substances, materials, or wastes, whether solid, liquid or gaseous in nature,
and (ii) all requirements pertaining to the protection of the health and safety of employees or the
public.
Governmental Authority" means any federal, State, county, municipal or local
governmental or quasi-governmental agency, body or authority, or any political
subdivision, public corporation, district or other political or public entity or departments
thereof, having jurisdiction over the Property or any portion thereof.
11. POSSESSION. Upon the Close of Escrow, (a) Seller shall deliver to Buyer possession
of the Property free and clear of any and all current and future rights and interests of any and all
persons and entities to occupy, possess or use all or any portion of the Property, other than
whatever rights the Current Occupants possess to occupy the Property, and (b) Seller shall
deliver to Buyer the keys to the Improvements.
12. BROKERS. Seller and Buyer hereby represent to each other that there are no brokers,
finders, or other persons entitled to a commission, finder's fee or other payment in connection
with this Agreement. Buyer and Seller hereby agree to indemnify, defend, protect, and hold the
other harmless from and against any claims, liabilities, or damages for commissions or finder's
fees brought by any third party who has dealt or claims to have dealt with the indemnifying party
pertaining to the Property.
13. GOVERNING LAW/VENUE. This Agreement shall be construed and enforced in
accordance with the applicable laws of the State of California and venue shall be Los Angeles
County to the extent permitted by law and in San Bernardino County to the extent required by
law.
14. PROPERTY TAXES. To the extent required by law, Buyer shall be responsible for any
property taxes or other taxes or assessments levied against the Property to the extent attributable
to the period after the Close of Escrow, it being understood that Buyer does not believe that
Buyer will be responsible for paying any such taxes. Seller shall be responsible for any property
taxes or other taxes or assessments levied against the Property to the extent attributable to the
period prior to the Close of Escrow.
15. CLOSING COSTS. Buyer and Seller shall split equally customary escrow fees and
charges and the cost of the Title Policy. Any endorsements to the Title Policy requested by
Buyer shall be paid for by Buyer. Tenant rental payments (if any) and utility and other operating
costs of the Property shall be prorated as of the Close of Escrow with expenses prorated on an
accrual" basis and income prorated on a "cash" basis.
16. NOTICES. All notices or other communications required or permitted hereunder (a
Notice") shall be in writing, and shall be (a) personally delivered, sent by national overnight
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courier service, or sent by registered or certified mail, first class postage prepaid, return receipt
requested, or (b) sent by electronic mail, but only if either (i) the recipient of the Notice
acknowledges receipt of such transmission by email or (ii) a confirming copy of the Notice is
sent by one of the methods set forth in clause (a), above, not later than the first business day
following transmission. Personally and courier delivered notices shall be deemed given upon
actual personal delivery to designated address of the intended recipient. Mailed notices shall be
deemed given upon the date of actual receipt as evidenced by the return receipt. Electronically
mailed notices shall be deemed given upon the date the email is transmitted if transmitted
without indication of delivery failure prior to 5:00 p.m. local time for the recipient (and if
transmitted without indication of delivery failure after 5:00 p.m. local time for the recipient, then
delivery will be deemed duly given at 9:00 a.m. local time for the recipient on the subsequent
business day). Any Notice shall be sent, transmitted or delivered, as applicable, to the applicable
Party or Parties at the following addresses:
To Buyer: Tres Hermanos Conservation Authority
c/o City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
Attn: Daniel Fox, Deputy Executive Director
with copies to: City of Chino Hills
14000 City Center Drive
Chino Hills, CA 91709
Attn: Rad Bartlam, City Manager
City of Chino Hills
14000 City Center Drive
Chino Hills, CA 91709
Attn: Mark Hensley, City Attorney
City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
Attn: David DeBerry, City Attorney
City of Industry
15625 East Stafford Street
City of Industry, CA 91744
Attn: Troy Helling, City Manager
City of Industry
15625 East Stafford Street
City of Industry, CA 91744
Attn: James M. Casso, City Attorney
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To Seller: City of Industry
15625 East Stafford Street, Suite 100
City of Industry, California 91744
Attention: Troy Helling, City Manager
with a copy to: City of Industry
15625 East Stafford Street
City of Industry, CA 91744
Attn: James M. Casso, City Attorney
Any Party to this Agreement may change its address for receipt of notices by giving notice of
such change to the other Party in the manner set forth in this Section. Neither the rejection of a
notice by the addressee or the inability to deliver a notice because of a change of address for
which no change of address notice was received, shall affect the date on which such notice is
deemed received.
17. DEFAULT AND REMEDIES.
A. Buyer Default and Seller Exclusive Remedy. Seller hereby acknowledges and
agrees that, in the event that the Close of Escrow does not occur at the time and in the manner
provided in this Agreement due to the material failure of Buyer to comply with any of its
obligations under this Agreement ("Buyer Default"), Seller shall be entitled, as its sole and
exclusive remedy, to bring an action for specific performance of this Agreement against Buyer.
Nothing in this Section 14.A shall limit the right of Seller to seek injunctive relief from a court of
competent jurisdiction before, after or during the pendency of any proceeding with respect to its
action for specific performance.
B. Seller Default and Buyer Exclusive Remedies. Buyer hereby acknowledges and
agrees that, in the event that the Close of Escrow does not occur at the time and in the manner
provided in this Agreement due to the material failure of Seller to comply with any of its
obligations under this Agreement ("Seller Default"), including without limitation its failure to
convey fee title to the Property to Buyer, Buyer shall be entitled, as its sole and exclusive
remedies, to (i) Escrow Holder's return to Chino Hills and Diamond Bar of the Payments
deposited by Chino Hills and Diamond Bar into the Escrow (less the Independent Consideration)
and (b) an action for specific performance of this Agreement against Seller. Nothing in this
Section 14.B shall limit the right of Buyer to seek injunctive relief from a court of competent
jurisdiction before, after or during the pendency of any proceeding with respect to its action for
specific performance.
C. No Damages. Neither Party shall be entitled to any damages of any kind or nature
whatsoever with respect to a Seller Default or Buyer Default.
18. MISCELLANEOUS.
A. Time. Time is of the essence of this Agreement with respect to each and every
provision hereof in which time is a factor.
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B. Entire Agreement; Modifications. This Agreement, including the Exhibits
attached hereto, together with the Settlement Agreement s and the other documents described
and referred to herein, contain all of the agreements between the Parties pertaining to the subject
matter hereof and fully supersede any and all prior agreements and understandings between the
Parties. No change in, modification of or amendment to this Agreement shall be valid unless set
forth in writing and signed by all of the Parties subsequent to the execution of this Agreement.
C. Further Assurances. Each of the Parties agrees that it will, without further
consideration execute and deliver such other documents and take such other action, whether prior
or subsequent to the Close of Escrow, as may be reasonably requested by the other Party to
consummate more effectively the purposes or subject matter of this Agreement, including,
without limitation, such documents as shall be required to issue the Title Policy.
D. No Assignment. Neither Party shall be permitted to assign this Agreement, in
whole or in part, and any purported assignment of this Agreement by either Party in violation of
this sentence shall be void.
E. Severability. In the event that all or any portion of any provision in this
Agreement is held by a court of competent jurisdiction to be illegal or unenforceable, such illegal
or unenforceable provision or portion of a provision shall be severed from the other provisions
and/or portions of a provision which shall remain in full force and effect as if the illegal or
unenforceable provision or portion of provision was not a part of this Agreement, unless the
illegal or unenforceable provision provided a material portion of the consideration to Buyer or
Seller.
F. Exhibits. References herein to exhibits are to Exhibit A, Exhibit B, Exhibit C
and Exhibit D attached hereto, which exhibits are hereby incorporated by reference.
G. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original, but all of which together shall constitute one and the same
instrument. Signature pages may be detached from the counterparts and attached to a single
original of this Agreement to physically form one document.
H. Seller's Operation of the Property. From the Effective Date until the Close of
Escrow, Seller shall (a) operate the Property in substantially the same manner as it did prior to
the Effective Date, (b) perform all Seller's obligations under the Approved Exceptions, (c)
maintain the Property in good order, condition and repair, and (d) not execute any new lease,
agreement, or any document that would constitute a new encumbrance on title, or modify any
such existing agreement.
I. Legal Fees. Subject to the provisions of Section 14, above, if either Party brings
any action or suit against the other Party for any matter relating to or arising out of this
Agreement, then the prevailing Party in such action or dispute shall be entitled to recover from
the other Party its reasonable costs and expenses of suit, including without limitation court costs
and attorneys' fees actually and reasonably incurred, as awarded by a court of competent
jurisdiction.
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J. No Third Party Benefited. This Agreement is not intended nor shall it be
construed to create any third-party beneficiary rights in any person, except that Chino Hills and
Diamond Bar are third-party beneficiaries of this Agreement.
K. No Waiver. No waiver of any of the provisions of this Agreement shall be
deemed, or shall constitute, the waiver of any other provision, whether or not similar, nor shall
any waiver constitute a continuing waiver, nor shall a waiver in any instance constitute a waiver
in any subsequent instance. No waiver shall be binding unless executed in writing by the Party
making such waiver.
L. Headings. The paragraph headings and captions in this Agreement are for
convenience only and shall not limit or define the contents of this Agreement.
M. No Presumption re Drafter. The Parties acknowledge and agree that the terms and
provisions of this Agreement have been negotiated and discussed between the Parties and their
attorneys, and this Agreement reflects their mutual agreement regarding the same. Because of
the nature of such negotiations and discussions, it would be inappropriate to deem any Party to
be the drafter of this Agreement, and therefore no presumption for or against validity or as to any
interpretation hereof, based upon the identity of the drafter shall be applicable in interpreting or
enforcing this Agreement.
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IN WITNESS WHEREOF, Buyer and Seller have executed this Agreement as of the
date first written above.
SELLER":
CITY OF INDUSTRY,a municipal corporation
By
Troy Helling,City Manager
BUYER":
TRES HERMANOS CONSERVATION
AUTHORITY a joint exercise of powers
authority established pursuant to Section
6500 et seq.of the California Government
Code
By
Daniel Fox,
Deputy Executive Director
ATTEST:
Julie Robles Gutierrez,Deputy City Clerk
ATTEST:
Julie Robles Gutierrez,Secretary
APPROVED AS TO FORM:
By
James M.Casso,City Attorney
APPROVED AS TO FORM:
By
David DeBerry,Authority Counsel
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ACCEPTANCE OF JOINT ESCROW INSTRUCTIONS
The undersigned, as Escrow Holder in connection with the sale of the Property,
hereby acknowledges the terms and conditions of the joint escrow instructions set forth in the
Agreement and in Exhibit B attached thereto, and agrees to perform its obligations in
connection therewith.
Dated as of February 7, 2019.
FIRST AMERICAN TITLE INSURANCE
COMPANY
By
Print Name and Title)
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EXHIBIT A
LEGAL DESCRIPTION OF THE LAND
PARCEL 1: (Los Angeles County)
A PORTION OF SECTION 1 AND ALL OF SECTION 12, TOWNSHIP 2 SOUTH, RANGE 9
WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF LOS ANGLES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SECTION 12; THENCE EAST 80
CHAINS TO THE SOUTHEAST CORNER OF SECTION 12; THENCE NORTH 80 CHAINS
TO THE NORTHEAST CORNER OF SAID SECTION 12; THENCE ON A COURSE OF
ABOVE NORTH 61° 28' WEST 90.83 CHAINS MORE OR LESS, TO A POINT IN THE
WEST LINE OF SAID SECTION 1, DISTANT 43.02 CHAINS NORTH OF THE
SOUTHWEST CORNER THEREOF; THENCE SOUTH ALONG THE WEST LINES OF
SAID SECTION 1 AND 12 TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION THEREOF INCLUDED WITHIN THE LAND,
DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED ON JULY 05,
1968 AS INSTRUMENT NO. 399 IN BOOK D-4405 PAGE 993 OF OFFICIAL RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE STATE OF CALIFORNIA, RECORDED ON
NOVEMBER 17, 1971 AS INSTRUMENTS NO. 253 AND 254 IN BOOK D-5259 PAGES 626
AND 630 OF OFFICIAL RECORDS IN SAID COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA RECORDED ON MARCH 07, 1975 AS INSTRUMENTS NO.
281 AND 282 IN BOOK D-6579 PAGES 1 AND 11 OF OFFICIAL RECORDS IN SAID
COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND DESCRIBED AS PARCEL A, IN THE GRANT DEED TO POMONA UNIFIED
SCHOOL DISTRICT, RECORDED APRIL 07, 1993 AS DOCUMENT NO. 93-653577, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF THE SOUTH HALF OF SECTION 1 AND THE NORTH HALF OF
SECTION 12,TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO MERIDIAN, IN
THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
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ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF PARCEL 3 OF PARCEL MAP
NO. 13350 AS PER MAP FILED IN BOOK 144 AT PAGES 12 AND 13 OF PARCEL MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, A RADIAL LINE
THROUGH SAID POINT BEARS NORTH 65° 33' 44" WEST; THENCE ALONG THE
SOUTHWESTERLY LINE OF SAID PARCEL 3 NORTH 61° 55' 24" WEST 242.81 FEET TO
THE MOST EASTERLY CORNER OF SAID LAND AS DESCRIBED IN THE DEED TO
THE STATE OF CALIFORNIA RECORDED ON NOVEMBER 17, 1971, AS INSTRUMENT
NO. 254 IN BOOK D-5259 PAGE 630 OF OFFICIAL RECORDS; THENCE ALONG THE
SOUTHWESTERLY BOUNDARIES OF SAID DEED TO THE STATE OF CALIFORNIA,
AS FOLLOWS:
SOUTH 80° 26' 22" WEST 357.29 FEET, NORTH 39° 50' 49" WEST 184.88 FEET; NORTH
08° 58' 26" WEST, 186.31 FEET TO THE SOUTHWESTERLY LINE OF PARCEL 1 AS
SHOWN ON RECORD OF SURVEY FILED IN BOOK 83 PAGES 62 AND 63 OF RECORD
OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE ALONG SAID LAST MENTIONED SOUTHWESTERLY LINE NORTH 61° 55'
24" WEST 2446.02 FEET; THENCE SOUTH 26° 04' 36" WEST 915.27 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A
RADIUS OF 1500.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 15° 00' 00", AN ARC DISTANCE OF 392.70 FEET TO
THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 120.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
NORTH 78° 55' 24" WEST; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 60°00'00", AN ARC DISTANCE OF 125.66 FEET; THENCE
TANGENT TO SAID LAST MENTIONED CURVE, SOUTH 48° 55' 24" EAST 170.71 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 2500.00 FEET; THENCE SOUTHEASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE 16° 02' 34", AN ARC DISTANCE OF 700.00
FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTH
HAVING A RADIUS OF 1125.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
SOUTH 25° 02' 02" WEST; THENCE EASTERLY ALONG SAID COMPOUND CURVE
THROUGH A CENTRAL ANGLE OF 73° 27' 26", AN ARC DISTANCE OF 1442.33 FEET;
THENCE TANGENT TO SAID COMPOUND CURVE NORTH 41° 34' 36" EAST 225.00
FEET; THENCE SOUTH 61° 55' 24" EAST 70.00 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH HAVING A RADIUS OF 100.00 FEET;
THENCE EASTERLY ALONG SAID LAST MENTIONED CURVE THROUGH A
CENTRAL ANGLE OF 60° 00' 00", AN ARC DISTANCE OF 104.72 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE TO THE SOUTH HAVING A RADIUS
OF 75.00 FEET; A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 31° 55' 24"
EAST; THENCE EASTERLY ALONG SAID REVERSE CURVE THROUGH A CENTRAL
ANGLE OF 78° 30' 00" AN ARC DISTANCE OF 102.76 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 350.00
FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 46° 34' 36" EAST;
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THENCE SOUTHEASTERLY ALONG SAID COMPOUND CURVE THROUGH A
CENTRAL ANGLE OF 22° 30' 00", AN ARC DISTANCE OF 137.44 FEET; THENCE
TANGENT TO SAID LAST COMPOUND CURVE SOUTH 20° 55' 24" EAST 105.00
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTH AND
HAVING A RADIUS OF 265.00 FEET; THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 112° 00' 00", AN ARC DISTANCE OF 518.01 FEET;
THENCE TANGENT TO LAST MENTIONED CURVE NORTH 47° 04' 36" EAST 137.02
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTH AND
HAVING A RADIUS OF 200.00 FEET; THENCE EASTERLY ALONG SAID LAST
MENTIONED CURVE THROUGH A CENTRAL ANGLE OF 67° 27' 44", AN ARC
DISTANCE OF 235.49 FEET; THENCE TANGENT TO SAID LAST MENTIONED CURVE,
SOUTH 65° 27' 40" EAST 38.64 FEET TO THE WESTERLY LINE OF CHINO HILLS
PARKWAY (100.00 FEET WIDE) AS EXISTED ON APRIL 5, 1993, AND AS
ESTABLISHED BY THE COUNTY ENGINEER OF SAN BERNARDINO; THENCE
ALONG SAID CHINO HILLS PARKWAY, AS FOLLOWS:
NORTH 24° 32' 20" EAST 72.06 FEET AND NORTHERLY ALONG A TANGENT CURVE
CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1750.00 FEET THROUGH
A CENTRAL ANGLE OF 00° 06' 04", AN ARC DISTANCE OF 3.09 FEET TO THE POINT
OF BEGINNING.
AND ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN
THE LAND DESCRIBED AS PARCEL RW-1, CHINO HILLS PARKWAY RIGHT-OF-
WAY, BY FINAL ORDER AND JUDGMENT IN CONDEMNATION, RECORDED
AUGUST 25, 1995, INSTRUMENT NO. 95-1398248, OFFICIAL RECORDS.
PARCEL 2 (San Bernardino County)
REAL PROPERTY IN THE CITY OF CHINO HILLS, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL NO. 1:
THOSE PORTIONS OF SECTIONS 14 AND 23, IN GOVERNMENT LOT 38, TOWNSHIP 2
SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO
SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN RECORD OF SURVEY
RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, LYING SOUTHEASTERLY OF THE SAID
RANCHO LINE BETWEEN STATIONS 13 AND 14, AS SHOWN ON SAID MAP.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 104, OFFICIAL RECORDS.
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SMRH: 489412557.3 B-22
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
PARCEL NO. 2:
THE WEST 1/2 OF SECTION 13; THE WEST 1/2 OF SECTION 24; THE NORTHWEST 1/4
OF SECTION 25 AND THE NORTH 1/2 OF SECTION 26, ALL IN GOVERNMENT LOT 38,
TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN
THE RANCHO SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN THE RECORD OF
SURVEYS, RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 83, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 92, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 104, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
APNs: 1000-011-19, 1000-011-20, 1000-011-21, 1000-011-22, 1000-011-13, 1000-011-14,
1000-031-14, 1000-031-15, 8701-022-270, 8701-021-271 and 8701-022-273.
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SMRH: 489412557.3 B-23
EXHIBIT B
ESCROW HOLDER'S GENERAL PROVISIONS
See Four (4) Following Pages)
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Escrow General Provisions-REVISED JULY 22, 2014
Receipt of these provisions deems acceptance of the terms. Please read for general information about the escrow
process.
1. SPECIAL DISCLOSURES:
A. DEPOSIT OF FUNDS & DISBURSEMENTS
Unless directed in writing to establish a separate, interest-bearing account together with all necessary taxpayer
reporting information, all funds shall be deposited in general escrow accounts in a federally insured financial institution
including those affiliated with Escrow Holder (“depositories”). All disbursements shall be made by Escrow Holder’s
check or by wire transfer unless otherwise instructed in writing. The Good Funds Law (California Insurance Code
12413.1) mandates that Escrow Holder may not disburse funds until the funds are, in fact, available in Escrow Holder’s
account. Wire transfers are immediately disbursable upon confirmation of receipt. Funds deposited by a cashier’s or
certified check are generally available on the next banking day following deposit. Funds deposited by a personal check
and other types of instruments may not be available until confirmation from Escrow Holder’s bank which can vary from
2 to 10 days.
B. DISCLOSURE OF POSSIBLE BENEFITS TO ESCROW HOLDER
As a result of Escrow Holder maintaining its general escrow accounts with the depositories, Escrow Holder may receive
certain financial benefits such as an array of bank services, accommodations, loans or other business transactions from
the depositories (“collateral benefits”). All collateral benefits shall accrue to the sole benefit of Escrow Holder and
Escrow Holder shall have no obligation to account to the parties to this escrow for the value of any such collateral
benefits.
C. MISCELLANEOUS FEES
Escrow Holder may incur certain additional costs on behalf of the parties for services performed, or fees charged, by
third parties. The fees charged by Escrow Holder for services including, but not limited to, wire transfers, overnight
delivery/courier services, etc. may include a mark up over the direct cost of such services to reflect the averaging of
direct, administrative and overhead charges of Escrow Holder for such services which shall, in no event, exceed $10 for
each markup.
D. METHOD TO DELIVER PAYOFF TO LENDERS/LIENHOLDERS
To minimize the amount of interest due on any existing loan or lien, Escrow Holder will deliver the payoff funds to the
lender/lienholder as soon as Escrow Holder is able after confirmation of recordation/close of escrow and as demanded
by the lender/lienholder using (a) personal delivery, (b) wire transfer, or (c) overnight delivery service, unless
otherwise directed in writing by the affected party. Certain payments such as home equity line of credit payoffs
HELOCS”) may require additional time to process.
2. “CLOSE OF ESCROW”/PRORATIONS & ADJUSTMENTS
The term "close of escrow" means the date on which documents are recorded. All prorations and/or adjustments shall
be made to the close of escrow based on the number of actual days, unless otherwise instructed in writing.
3. CONTINGENCY PERIODS
Escrow Holder shall not be responsible for monitoring contingency time periods between the parties. The parties shall
execute such documents as may be requested by Escrow Holder to confirm the status of any such periods.
4. REPORTS
a. Preliminary Report -Escrow Holder has neither responsibility nor liability for any title search that may be performed
in connection with the issuance of a preliminary report.
b. Other Reports-As an accommodation, Escrow Holder may agree to transmit orders for inspection, termite,
disclosure and other reports if requested, in writing or orally, by the parties or their agents. Escrow Holder shall deliver
copies of any such reports as directed. Escrow Holder is not responsible for reviewing such reports or advising the
parties of the content of same.
5. INFORMATION FROM AFFILIATED COMPANIES
Escrow Holder may provide the parties’ information to and from its affiliates in connection with the offering of products
and services from these affiliates.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
2014 First American Title Insurance Company and/or its affiliates.
All rights reserved. NYSE: FAF
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6. RECORDATION OF DOCUMENTS
Escrow Holder is authorized to record documents delivered through escrow which are necessary or proper for the
issuance of the requested title insurance policy(ies). Buyer will provide a completed Preliminary Change of Ownership
Report form (“PCOR”). If Buyer fails to provide the PCOR, Escrow Holder shall close escrow and charge Buyer any
additional fee incurred for recording the documents without the PCOR. Escrow Holder is released from any liability in
connection with same.
7. PERSONAL PROPERTY TAXES
No examination, UCC search, insurance as to personal property and/or the payment of personal property taxes is
required unless otherwise instructed in writing.
8. REAL PROPERTY TAXES
Real property taxes are prorated based on the most current available tax statement from the tax collector’s office.
Supplemental taxes may be assessed as a result of a change in ownership or completion of construction. Adjustments
due either party based on the actual new tax bill issued after close of escrow or a supplemental tax bill will be made by
the parties outside of escrow and Escrow Holder is released of any liability in connection with such adjustments. The
first installment of California real property taxes is due November 1st (delinquent December 10th) and the second
installment is due February 1st (delinquent April 10th). If a tax bill is not received from the County at least 30 days
prior to the due date, buyer should contact the County Tax Collector’s office and request one. Escrow Holder is not
responsible for same.
9. CANCELLATION OF ESCROW
a. Any party desiring to cancel this escrow shall deliver written notice of cancellation to Escrow Holder. Within a
reasonable time after receipt of such notice, Escrow Holder shall send by regular mail to the address on the escrow
instructions, one copy of said notice to the other party(ies). Unless written objection to cancellation is delivered to
Escrow Holder by a party within 10 days after date of mailing, Escrow Holder is authorized, at its option, to comply with
the notice and terminate the escrow. If a written objection is received by Escrow Holder, Escrow Holder is authorized,
at its option, to hold all funds and documents in escrow (subject to the Funds Held in Escrow fee) and to take no other
action until otherwise directed by either the parties' mutual written instructions or a final order of a court of competent
jurisdiction. If no action is taken on this escrow within 6 months after the closing date specified in the escrow
instructions, Escrow Holder’s obligations shall, at its option, terminate. Upon termination of this escrow, the parties
shall pay all fees, charges and reimbursements due to Escrow Holder and all documents and remaining funds held in
escrow shall be returned to the parties depositing same.
b. Notwithstanding the foregoing, upon receipt of notice of cancellation by a seller in a transaction subject to the
Home Equity Sales Contract law (CC §1695 et seq.), Escrow Holder shall have the right to unilaterally cancel the escrow
and may return all documents and funds without consent by or notice to the buyer.
10. CONFLICTING INSTRUCTIONS & DISPUTES
If Escrow Holder becomes aware of any conflicting demands or claims concerning this escrow, Escrow Holder shall
have the right to discontinue all further acts on Escrow Holder’s part until the conflict is resolved to Escrow Holder’s
satisfaction. Escrow Holder has the right at its option to file an action in interpleader requiring the parties to litigate
their claims/rights. If such an action is filed, the parties jointly and severally agree (a) to pay Escrow Holder’s
cancellation charges, costs (including the Funds Held in Escrow fee) and reasonable attorneys’ fees, and (b) that
Escrow Holder is fully released and discharged from all further obligations under the escrow. If an action is brought
involving this escrow and/or Escrow Holder, the party(ies) involved in the action agree to indemnify and hold the
Escrow Holder harmless against liabilities, damages and costs incurred by Escrow Holder (including reasonable
attorneys’ fees and costs) except to the extent that such liabilities, damages and costs were caused by the negligence
or willful misconduct of Escrow Holder.
11. FUNDS HELD IN ESCROW
When funds remain in escrow over 90 days after either close of escrow or estimated close of escrow, a monthly holding
fee of $25 shall be imposed by Escrow Holder that is to be charged against the funds held.
12. USURY
Escrow Holder is not to be concerned with usury as to any loans or encumbrances in this escrow and is hereby
released of any responsibility and/or liability therefore.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
2014 First American Title Insurance Company and/or its affiliates.
All rights reserved. NYSE: FAF
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13. AMENDMENTS TO ESCROW INSTRUCTIONS
Any amendment to the escrow instructions must be in writing, executed by all parties and accepted by Escrow Holder.
Escrow Holder may, at its sole option, elect to accept and act upon oral instructions from the parties. If requested by
Escrow Holder the parties agree to confirm said instructions in writing as soon as practicable. The escrow instructions
as amended shall constitute the entire escrow agreement between the Escrow Holder and the parties hereto with
respect to the subject matter of the escrow.
14. FIRE, HAZARD OR LIABILITY INSURANCE POLICIES
In all matters relating to fire, hazard or liability insurance, Escrow Holder may assume that each policy is in force and
that the necessary premium has been paid. Escrow Holder is not responsible for obtaining fire, hazard or liability
insurance, unless Escrow Holder has received specific written instructions to obtain such insurance prior to close of
escrow from the parties or their respective lenders.
15. COPIES OF DOCUMENTS; ELECTRONIC SIGNATURES; AUTHORIZATION TO RELEASE
Escrow Holder is authorized to rely upon copies of documents, which include facsimile, electronic, NCR, or photocopies
as if they were an originally executed document. Escrow Holder may agree to accept electronically signed documents
from a platform or program approved by Escrow Holder. If requested by Escrow Holder, the originals of such
documents and/or original signatures shall be delivered to Escrow Holder. Escrow Holder may withhold documents
and/or funds due to the party until such originals are delivered. Documents to be recorded MUST contain original
signatures. Escrow Holder may furnish copies of any and all documents to the lender(s), real estate broker(s),
attorney(s) and/or accountant(s) involved in this transaction upon their request. Delivery of documents by escrow to a
real estate broker or agent who is so designated in the purchase agreement shall be deemed delivery to the principal.
16. EXECUTION IN COUNTERPART
The escrow instructions and any amendments may be executed in one or more counterparts, each of which shall be
deemed an original, and all of which taken together shall constitute the same instruction.
17. TAX REPORTING, WITHHOLDING & DISCLOSURE
The parties are advised to seek independent advice concerning the tax consequences of this transaction, including but
not limited to, their withholding, reporting and disclosure obligations. Escrow Holder does not provide tax or legal
advice and the parties agree to hold Escrow Holder harmless from any loss or damage that the parties may incur as a
result of their failure to comply with federal and/or state tax laws. WITHHOLDING OBLIGATIONS ARE THE EXCLUSIVE
OBLIGATIONS OF THE PARTIES. ESCROW HOLDER IS NOT RESPONSIBLE TO PERFORM THESE OBLIGATIONS UNLESS
ESCROW HOLDER AGREES IN WRITING.
A. TAXPAYER IDENTIFICATION NUMBER REPORTING
Federal law requires Escrow Holder to report seller’s social security number or tax identification number (both numbers
are hereafter referred to as the “TIN”), forwarding address, and the gross sales price to the Internal Revenue Service
IRS”). To comply with the USA PATRIOT Act, certain taxpayer identification information (including, but not limited to,
the TIN) may be required by Escrow Holder from certain persons or entities involved (directly or indirectly) in the
transaction prior to closing.
Escrow cannot be closed nor any documents recorded until the information is provided and certified as to its accuracy
to Escrow Holder. The parties agree to promptly obtain and provide such information as requested by Escrow Holder.
B. STATE WITHHOLDING & REPORTING
In accordance with Section 18662 of the Revenue and Taxation Code (R&TC), a buyer may be required to withhold an
amount equal to 3 1/3% (.0333) of the sale price, or an optional gain on sale withholding amount certified by the seller
in the case of a disposition of California real property interest by either:
1. A seller who is an individual, trust, estate, or when the disbursement instructions authorize the proceeds to be sent
to a financial intermediary of the sellers.
2. A corporate seller that has no permanent place of business in California immediately after the transfer of title to the
California property.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
2014 First American Title Insurance Company and/or its affiliates.
All rights reserved. NYSE: FAF
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The buyer may become subject to penalty for failure to withhold an amount equal to the greater of 10 percent of the
amount required to be withheld or five hundred dollars ($500).
However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be
required to withhold any amount or be subject to penalty for failure to withhold if any of the following applies:
1. The sale price of the California real property conveyed does not exceed one hundred thousand dollars ($100,000).
2. The seller executes a written certificate under the penalty of perjury certifying that the seller is a corporation with a
permanent place of business in California.
3. The seller, who is an individual, trust, estate, or a corporation without a permanent place of business in California,
executes a written certificate under the penalty of perjury of any of the following:
a. The California real property being conveyed is the seller’s or decedent’s principal residence (within the meaning of
Section 121 of the Internal Revenue Code (IRC)).
b. The last use of the property being conveyed was by the transferor as the transferor’s principal residence (within
the meaning of IRC Section 121).
c. The California real property being conveyed is, or will be, exchanged for property of like kind (within the meaning
of IRC Section 1031), but only to the extent of the amount of gain not required to be recognized for California income
tax purposes under IRC Section 1031.
d. The California real property has been compulsorily or involuntarily converted (within the meaning of IRC Section
1033) and the seller intends to acquire property similar or related in service or use so as to be eligible for
nonrecognition of gain for California income tax purposes under IRC Section 1033.
e. The California real property transaction will result in a loss or net gain not required to be recognized for California
income tax purposes.
The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding
requirement.
Contact FTB: For additional information regarding California withholding or for the Alternative Withholding, contact the
Franchise Tax Board at (toll free) 888-792-4900), by e-mail WSCS.GEN@ftb.ca.gov; or visit their website at
www.ftb.ca.gov.
C. FEDERAL WITHHOLDING & REPORTING
Certain federal reporting and withholding requirements exist for real estate transactions where the seller (transferor) is
a non-resident alien, a non-domestic corporation, partnership, or limited liability company; or a domestic corporation,
partnership or limited liability company controlled by non-residents; or non-resident corporations, partnerships or
limited liability companies.
D. TAXPAYER IDENTIFICATION DISCLOSURE
Federal and state laws require that certain forms include a party’s TIN and that such forms or copies of the forms be
provided to the other party and to the applicable governmental authorities. Parties to a real estate transaction
involving seller-provided financing are required to furnish, disclose, and include the other party’s TIN in their tax
returns. Escrow Holder is authorized to release a party’s TINs and copies of statutory forms to the other party and to
the applicable governmental authorities in the foregoing circumstances. The parties agree to hold Escrow Holder
harmless against any fees, costs, or judgments incurred and/or awarded because of the release of their TIN as
authorized herein.
THIS COMPANY CONDUCTS ESCROW BUSINESS UNDER CERTIFICATE OF AUTHORITY ISSUED BY THE STATE OF CALIFORNIA DEPARTMENT OF INSURANCE.
2014 First American Title Insurance Company and/or its affiliates.
All rights reserved. NYSE: FAF
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SMRH: 489412557.3 B-28
EXHIBIT C
FORM OF GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
Tres Hermanos Conservation Authority
c/o City of Diamond Bar
21810 Copley Drive
Diamond Bar, CA 91765
Attn: Daniel Fox,
Deputy Executive Director
APNs: 1000-011-19
1000-011-20
1000-011-21
1000-011-22
1000-011-13
1000-011-14
1000-031-14
1000-031-15
8701-022-270
8701-021-271
8701-022-273
The undersigned declares that this Grant Deed is exempt from Recording Fees pursuant to
California Government Code Section 27383. The undersigned declares that this Grant Deed is
exempt from Documentary Transfer Tax pursuant to Revenue and Taxation Code Section 11922.
GRANT DEED
Documentary Transfer Tax: $0.00
THE UNDERSIGNED GRANTOR DECLARES:
FOR VALUABLE CONSIDERATION, the receipt of which is hereby acknowledged,
the CITY OF INDUSTRY, a municipal corporation ("Grantor"), hereby grants to the TRES
HERMANOS CONSERVATION AUTHORITY ("Grantee"), a joint exercise of powers
authority established pursuant to Section 6500 et seq. of the California Government Code, that
certain real property described in Exhibit A attached hereto and incorporated herein by this
reference (the "Land"), together with (1) all of Grantor's right, title and interest in and to any and
all hereditaments, appurtenances, rights, permits, licenses, privileges, development rights and
easements relating to the Land, including without limitation Grantor 's right, title and interest in
and to all streets, alleys and rights-of-way in, on, across, in front of, abutting or adjoining such
real property and all water rights and mineral rights and (2) all buildings, fixtures, structures,
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parking areas, landscaping and other improvements located on the Land (collectively, the
Property").
The Property is conveyed subject to all easements, rights of way, covenants, conditions,
restrictions, reservations and all other matters of record affecting title to the Property, and the
following conditions subsequent:
1. Grantee covenants by and for itself, its heirs, executors, administrators and
assigns, and all persons claiming under or through it, that there shall be no discrimination against
or segregation of, any person or group of persons on account of any basis listed in subdivision (a)
or (d) of Section 12955 of the California Government Code, as those bases are defined in
Sections 12926, 12926.1, subdivision (m) and paragraph (1) of subdivision (p) of Section 12955,
and Section 12955.2 of the California Government Code, in the sale, lease, sublease, transfer,
use, occupancy, tenure or enjoyment of the premises herein conveyed, nor shall Grantee, or any
person claiming under or through it, establish or permit any practice or practices of
discrimination or segregation with reference to the selection, location, number, use or occupancy
of tenants, lessees, subtenants, sublessees or vendees in the premises herein conveyed.
Notwithstanding the immediately preceding paragraph, with respect to familial status,
said paragraph shall not be construed to apply to housing for older persons, as defined in Section
12955.9 of the California Government Code. With respect to familial status, nothing in said
paragraph shall be construed to affect Sections 51.2, 51.3, 51.4, 51.10, 51.11, and 799.5 of the
California Civil Code, relating to housing for senior citizens. Subdivision (d) of Section 51 and
Section 1360 of the California Civil Code and subdivisions (n), (o) and (p) of Section 12955 of
the California Government Code shall apply to said paragraph.
2. Grantee's use of the Property shall be limited to open space, public uses and
preservation uses.
3. All covenants and agreements contained in this Grant Deed shall run with the land
and shall be binding for the benefit of Grantor and its successors and assigns and such covenants
shall run in favor of Grantor and for the entire period during which the covenants shall be in
force and effect as provided in the Agreement, without regard to whether Grantor is or remains
an owner of any land or interest therein to which such covenants relate; provided, however, that
Grantor shall have no power of termination pursuant to Section 885.010 of the California Civil
Code or any successor statute or any similar or other right or remedy pursuant to which Grantor
can seek to reacquire title to the Property in the event of any breach or default with respect to the
conditions subsequent set forth in numbered Paragraphs 1 and 2, above, of this Grant Deed, and
Grantor's sole remedy with respect to any such breach or default shall be injunctive relief to
enforce such covenant. Without limiting the generality of the foregoing, Grantor shall not, and
shall have no right to, record a notice of intent to preserve the power of termination pursuant to
Section 885.010 of the California Civil Code or any successor or other statute.
4. The conditions subsequent contained in numbered Paragraphs 2 and 3, above, of
this Grant Deed shall remain in effect in perpetuity except as otherwise expressly set forth
therein.
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SMRH: 489412557.3 B-30
5. This Grant Deed may be executed simultaneously in one or more counterparts,
each of which shall be deemed an original, but all of which together shall constitute one and the
same instrument.
IN WITNESS WHEREOF, Grantor has duly executed this Grant Deed on February 7,
2019.
Grantor":
CITY OF INDUSTRY
By
Troy Helling, City Manager
ATTEST:
Julie Gutierrez-Robles,
Deputy City Clerk
APPROVED AS TO FORM:
By
James M. Casso,
City Attorney
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SMRH: 489412557.3 B-31
CERTIFICATE OF ACCEPTANCE
This is to certify that the interest in real property conveyed by the foregoing Grant Deed from the
City of Industry, a municipal corporation, as grantor, to the Tres Hermanos Conservation
Authority ("THCA"), a joint exercise of powers authority established pursuant to Section 6500
et seq. of the California Government Code, as grantee, is hereby accepted by the undersigned
officer of THCA, pursuant to authority conferred by Resolution No. 2019-01 of the Board of
Directors of THCA adopted on February 7, 2019, and grantee THCA hereby consents to
recordation of the foregoing described Grant Deed.
Dated: February 7, 2019
TRES HERMANOS CONSERVATION
AUTHORITY
By
Daniel Fox,
Deputy Executive Director
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SMRH: 489412557.3 B-32
EXHIBIT A to GRANT DEED
LEGAL DESCRIPTION
PARCEL 1: (Los Angeles County)
A PORTION OF SECTION 1 AND ALL OF SECTION 12, TOWNSHIP 2 SOUTH, RANGE 9
WEST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF LOS ANGLES, STATE OF
CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT OF SAID LAND, DESCRIBED AS
FOLLOWS:
BEGINNING AT THE SOUTHWEST CORNER OF SECTION 12; THENCE EAST 80
CHAINS TO THE SOUTHEAST CORNER OF SECTION 12; THENCE NORTH 80 CHAINS
TO THE NORTHEAST CORNER OF SAID SECTION 12; THENCE ON A COURSE OF
ABOVE NORTH 61° 28' WEST 90.83 CHAINS MORE OR LESS, TO A POINT IN THE
WEST LINE OF SAID SECTION 1, DISTANT 43.02 CHAINS NORTH OF THE
SOUTHWEST CORNER THEREOF; THENCE SOUTH ALONG THE WEST LINES OF
SAID SECTION 1 AND 12 TO THE POINT OF BEGINNING.
EXCEPT THEREFROM THAT PORTION THEREOF INCLUDED WITHIN THE LAND,
DESCRIBED IN THE DEED TO THE STATE OF CALIFORNIA RECORDED ON JULY 05,
1968 AS INSTRUMENT NO. 399 IN BOOK D-4405 PAGE 993 OF OFFICIAL RECORDS, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE STATE OF CALIFORNIA, RECORDED ON
NOVEMBER 17, 1971 AS INSTRUMENTS NO. 253 AND 254 IN BOOK D-5259 PAGES 626
AND 630 OF OFFICIAL RECORDS IN SAID COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND, DESCRIBED IN THE DEEDS TO THE METROPOLITAN WATER DISTRICT OF
SOUTHERN CALIFORNIA RECORDED ON MARCH 07, 1975 AS INSTRUMENTS NO.
281 AND 282 IN BOOK D-6579 PAGES 1 AND 11 OF OFFICIAL RECORDS IN SAID
COUNTY RECORDER.
ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN THE
LAND DESCRIBED AS PARCEL A, IN THE GRANT DEED TO POMONA UNIFIED
SCHOOL DISTRICT, RECORDED APRIL 07, 1993 AS DOCUMENT NO. 93-653577, IN
THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL A:
THAT PORTION OF THE SOUTH HALF OF SECTION 1 AND THE NORTH HALF OF
SECTION 12,TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO MERIDIAN, IN
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SMRH: 489412557.3 B-33
THE CITY OF DIAMOND BAR, COUNTY OF LOS ANGELES, STATE OF CALIFORNIA,
ACCORDING TO THE OFFICIAL PLAT THEREOF, DESCRIBED AS A WHOLE AS
FOLLOWS:
BEGINNING AT THE MOST SOUTHERLY CORNER OF PARCEL 3 OF PARCEL MAP
NO. 13350 AS PER MAP FILED IN BOOK 144 AT PAGES 12 AND 13 OF PARCEL MAPS,
IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, A RADIAL LINE
THROUGH SAID POINT BEARS NORTH 65° 33' 44" WEST; THENCE ALONG THE
SOUTHWESTERLY LINE OF SAID PARCEL 3 NORTH 61° 55' 24" WEST 242.81 FEET TO
THE MOST EASTERLY CORNER OF SAID LAND AS DESCRIBED IN THE DEED TO
THE STATE OF CALIFORNIA RECORDED ON NOVEMBER 17, 1971, AS INSTRUMENT
NO. 254 IN BOOK D-5259 PAGE 630 OF OFFICIAL RECORDS; THENCE ALONG THE
SOUTHWESTERLY BOUNDARIES OF SAID DEED TO THE STATE OF CALIFORNIA,
AS FOLLOWS:
SOUTH 80° 26' 22" WEST 357.29 FEET, NORTH 39° 50' 49" WEST 184.88 FEET; NORTH
08° 58' 26" WEST, 186.31 FEET TO THE SOUTHWESTERLY LINE OF PARCEL 1 AS
SHOWN ON RECORD OF SURVEY FILED IN BOOK 83 PAGES 62 AND 63 OF RECORD
OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY;
THENCE ALONG SAID LAST MENTIONED SOUTHWESTERLY LINE NORTH 61° 55'
24" WEST 2446.02 FEET; THENCE SOUTH 26° 04' 36" WEST 915.27 FEET TO THE
BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST HAVING A
RADIUS OF 1500.00 FEET; THENCE SOUTHWESTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 15° 00' 00", AN ARC DISTANCE OF 392.70 FEET TO
THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 120.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
NORTH 78° 55' 24" WEST; THENCE SOUTHERLY ALONG SAID CURVE THROUGH A
CENTRAL ANGLE OF 60°00'00", AN ARC DISTANCE OF 125.66 FEET; THENCE
TANGENT TO SAID LAST MENTIONED CURVE, SOUTH 48° 55' 24" EAST 170.71 FEET
TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST AND
HAVING A RADIUS OF 2500.00 FEET; THENCE SOUTHEASTERLY ALONG SAID
CURVE THROUGH A CENTRAL ANGLE 16° 02' 34", AN ARC DISTANCE OF 700.00
FEET TO THE BEGINNING OF A COMPOUND CURVE CONCAVE TO THE NORTH
HAVING A RADIUS OF 1125.00 FEET, A RADIAL LINE THROUGH SAID POINT BEARS
SOUTH 25° 02' 02" WEST; THENCE EASTERLY ALONG SAID COMPOUND CURVE
THROUGH A CENTRAL ANGLE OF 73° 27' 26", AN ARC DISTANCE OF 1442.33 FEET;
THENCE TANGENT TO SAID COMPOUND CURVE NORTH 41° 34' 36" EAST 225.00
FEET; THENCE SOUTH 61° 55' 24" EAST 70.00 FEET TO THE BEGINNING OF A
TANGENT CURVE CONCAVE TO THE NORTH HAVING A RADIUS OF 100.00 FEET;
THENCE EASTERLY ALONG SAID LAST MENTIONED CURVE THROUGH A
CENTRAL ANGLE OF 60° 00' 00", AN ARC DISTANCE OF 104.72 FEET TO THE
BEGINNING OF A REVERSE CURVE CONCAVE TO THE SOUTH HAVING A RADIUS
OF 75.00 FEET; A RADIAL LINE THROUGH SAID POINT BEARS SOUTH 31° 55' 24"
EAST; THENCE EASTERLY ALONG SAID REVERSE CURVE THROUGH A CENTRAL
ANGLE OF 78° 30' 00" AN ARC DISTANCE OF 102.76 FEET TO THE BEGINNING OF A
COMPOUND CURVE CONCAVE TO THE SOUTHWEST HAVING A RADIUS OF 350.00
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FEET, A RADIAL LINE THROUGH SAID POINT BEARS NORTH 46° 34' 36" EAST;
THENCE SOUTHEASTERLY ALONG SAID COMPOUND CURVE THROUGH A
CENTRAL ANGLE OF 22° 30' 00", AN ARC DISTANCE OF 137.44 FEET; THENCE
TANGENT TO SAID LAST COMPOUND CURVE SOUTH 20° 55' 24" EAST 105.00
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTH AND
HAVING A RADIUS OF 265.00 FEET; THENCE EASTERLY ALONG SAID CURVE
THROUGH A CENTRAL ANGLE OF 112° 00' 00", AN ARC DISTANCE OF 518.01 FEET;
THENCE TANGENT TO LAST MENTIONED CURVE NORTH 47° 04' 36" EAST 137.02
FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTH AND
HAVING A RADIUS OF 200.00 FEET; THENCE EASTERLY ALONG SAID LAST
MENTIONED CURVE THROUGH A CENTRAL ANGLE OF 67° 27' 44", AN ARC
DISTANCE OF 235.49 FEET; THENCE TANGENT TO SAID LAST MENTIONED CURVE,
SOUTH 65° 27' 40" EAST 38.64 FEET TO THE WESTERLY LINE OF CHINO HILLS
PARKWAY (100.00 FEET WIDE) AS EXISTED ON APRIL 5, 1993, AND AS
ESTABLISHED BY THE COUNTY ENGINEER OF SAN BERNARDINO; THENCE
ALONG SAID CHINO HILLS PARKWAY, AS FOLLOWS:
NORTH 24° 32' 20" EAST 72.06 FEET AND NORTHERLY ALONG A TANGENT CURVE
CONCAVE NORTHWESTERLY AND HAVING A RADIUS OF 1750.00 FEET THROUGH
A CENTRAL ANGLE OF 00° 06' 04", AN ARC DISTANCE OF 3.09 FEET TO THE POINT
OF BEGINNING.
AND ALSO EXCEPT THEREFROM THAT PORTION THEREOF, INCLUDED WITHIN
THE LAND DESCRIBED AS PARCEL RW-1, CHINO HILLS PARKWAY RIGHT-OF-
WAY, BY FINAL ORDER AND JUDGMENT IN CONDEMNATION, RECORDED
AUGUST 25, 1995, INSTRUMENT NO. 95-1398248, OFFICIAL RECORDS.
PARCEL 2 (San Bernardino County)
REAL PROPERTY IN THE CITY OF CHINO HILLS, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL NO. 1:
THOSE PORTIONS OF SECTIONS 14 AND 23, IN GOVERNMENT LOT 38, TOWNSHIP 2
SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN THE RANCHO
SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN RECORD OF SURVEY
RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE OF THE
COUNTY RECORDER OF SAID COUNTY, LYING SOUTHEASTERLY OF THE SAID
RANCHO LINE BETWEEN STATIONS 13 AND 14, AS SHOWN ON SAID MAP.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 104, OFFICIAL RECORDS.
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ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
PARCEL NO. 2:
THE WEST 1/2 OF SECTION 13; THE WEST 1/2 OF SECTION 24; THE NORTHWEST 1/4
OF SECTION 25 AND THE NORTH 1/2 OF SECTION 26, ALL IN GOVERNMENT LOT 38,
TOWNSHIP 2 SOUTH, RANGE 9 WEST, SAN BERNARDINO BASE AND MERIDIAN, IN
THE RANCHO SANTA ANA DEL CHINO, IN THE CITY OF CHINO HILLS, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN THE RECORD OF
SURVEYS, RECORDED IN BOOK 3, PAGE 72, RECORD OF SURVEYS, IN THE OFFICE
OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY.
EXCEPT THEREFROM THAT PORTION CONVEYED TO THE METROPOLITAN WATER
DISTRICT OF SOUTHERN CALIFORNIA, BY DEED RECORDED MARCH 07, 1975, IN
BOOK 8630, PAGE 83, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 92, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE
METROPOLITAN WATER DISTRICT OF SOUTHERN CALIFORNIA, BY DEED
RECORDED MARCH 07, 1975, IN BOOK 8630, PAGE 104, OFFICIAL RECORDS.
ALSO EXCEPTING THEREFROM THAT PORTION CONVEYED TO THE COUNTY OF
SAN BERNARDINO, BY FINAL ORDER OF CONDEMNATION, RECORDED JUNE 07,
1988, INSTRUMENT NO. 88-180373, OFFICIAL RECORDS.
APNs: 1000-011-19, 1000-011-20, 1000-011-21, 1000-011-22, 1000-011-13, 1000-011-14,
1000-031-14, 1000-031-15, 8701-022-270, 8701-021-271 and 8701-022-273.
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the
document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA )
COUNTY OF LOS ANGELES )
On February ____, 2019, before me, ____________________________, a Notary Public,
personally appeared _______________________________, who proved to me on the basis of
satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within
instrument and acknowledged to me that he/she/they executed the same in his/her/their
authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or
the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the
foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature
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EXHIBIT D
SETTLEMENT AGREEMENT AND MUTUAL RELEASES
THIS SETTLEMENT AGREEMENT ("Agreement") is made and entered into
as of February 5, 2019, by and among the CITY OF CHINO HILLS ("Chino Hills"), the CITY
OF DIAMOND BAR ("Diamond Bar"), the CITY OF INDUSTRY ("Industry") and the CITY
OF INDUSTRY CITY COUNCIL (the "Industry City Council" and, collectively with Industry,
the "Industry Parties"), and the SUCCESSOR AGENCY TO THE INDUSTRY-URBAN
DEVELOPMENT AGENCY (the "Successor Agency") and the BOARD OF DIRECTORS OF
THE SUCCESSOR AGENCY TO THE INDUSTRY-URBAN DEVELOPMENT AGENCY
the "Successor Agency Board" and, collectively with the Successor Agency, the "Successor
Agency Parties"). The aforementioned parties are collectively defined herein as the "Parties" and
each individually as a "Party." This Agreement is made with reference to the following facts:
RECITALS
A. Certain claims, demands and differences have existed heretofore among
the Diamond Bar and Chino Hills, on the one hand, and the Industry Parties and the Successor
Agency Parties, on the other hand.
B. The Successor Agency owns approximately 2,445 acres of largely
undeveloped land, 695 acres of which is located within the boundaries of Diamond Bar and
1,750 acres of which is located within the boundaries of Chino Hills, which is commonly known
as Tres Hermanos Ranch ("Tres Hermanos").
C. Diamond Bar and Chino Hills have filed the following six lawsuits against
all or some of the Industry Parties, the Successor Agency Parties, the Oversight Board of the
Successor Agency to the Industry Urban-Development Agency (the "Oversight Board"), San
Gabriel Valley Water and Power, LLC ("SGVWP") and other parties relating to the approval of
the sale of Tres Hermanos by the Successor Agency to Industry (collectively, the "Tres
Hermanos Lawsuits"):
1. City of Diamond Bar v. City of Industry, et al., Los Angeles
Superior Court Case No. BS171295 (the "Diamond Bar Los Angeles Lawsuit").
2. City of Chino Hills v. City of Industry, et al., Los Angeles Superior
Court Case No. BS171398 (the "Chino Hills Los Angeles Lawsuit").
3. City of Chino Hills v. City of Industry, et al., Los Angeles Superior
Court Case No. BS172995 (the "Chino Hills PRA Lawsuit").
4. City of Diamond Bar v. City of Industry, et al., Los Angeles
Superior Court Case No. BS173224 (the "Diamond Bar PRA Lawsuit").
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5. City of Diamond Bar v. Oversight Board of the Successor Agency
to the Industry-Urban Development Agency, et al., Sacramento Superior Court Case No. 34-
2017-80002718-CU-WM-GDS (the "Diamond Bar Sacramento Lawsuit").
6. City of Chino Hills v. Oversight Board of the Successor Agency to
the Industry-Urban Development Agency, et al., Sacramento Superior Court Case No. 34-2017-
80002719-CU-WM-GDS (the "Chino Hills Sacramento Lawsuit").
D. With respect to the Chino Hills Sacramento Lawsuit, Chino Hills caused
the recordation of that certain Notice of Pendency of Action (the "Chino Hills Lis Pendens")
i) on February 26, 2018 as Instrument No. 2018018 in the Official Records of Los Angeles
County, California (the "LAC Official Records") and (ii) on January 31, 2018 as
Document No. 2018-0035375 in the Official Records of San Bernardino County, California (the
SBC Official Records"). With respect to the Diamond Bar Sacramento Lawsuit, Diamond Bar
caused the recordation of that certain Notice of Pendency of Action (the "Diamond Bar Lis
Pendens") (i) on January 29, 2018 as Instrument No. 20180092644 in the LAC Official Records
and (ii) on January 31, 2018 as Document No. 2018-0035624 in the SBC Official Records.
E. The Parties desire to settle and dispose of, fully and completely, any and
all matters between them heretofore arising out of, connected with or relating to the Tres
Hermanos Lawsuits, including without limitation any claims that could have been raised in
connection with the Tres Hermanos Lawsuits accruing prior to the date of this Agreement,
without any further court proceedings, trial, appeal or adjudication of any issue of fact or law,
and without any admission with respect to such matters by any Party.
F. This Agreement is not to be construed as a settlement or waiver of any
claim or cause of action that the Parties have or may have, or that any individual Party has or
may have, as against SGVWP or its affiliates, members, managers or successors or assigns.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
described below, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the Parties hereby agree as follows:
AGREEMENT
1. Notice of Conditional Settlement. Within seven (7) business days after the
satisfaction of the conditions precedent set forth in Section 2.1, 2.2 and 2.3, below, counsel for
Chino Hills and Diamond Bar shall file notices of conditional settlement with respect to the
Chino Hills Los Angeles Lawsuit, the Diamond Bar Los Angeles Lawsuit, the Chino Hills
Sacramento Lawsuit and the Diamond Bar Sacramento Lawsuit (collectively, the "Los
Angeles/Sacramento Lawsuits"), using Judicial Council Form CM-200, indicating that each is a
conditional settlement and stating that a request for dismissal will be filed no later than
February 29, 2028; provided, however, that following such conditional settlement, the Los
Angeles/Sacramento Lawsuits shall be dismissed pursuant to Section 2, below, following the
satisfaction of the condition precedent set forth in Section 2.4, below.
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2. Dismissal of Lawsuits. Chino Hills and Diamond Bar shall (a) (i) file and serve
requests for dismissal with prejudice of the Los Angeles/Sacramento Lawsuits, executed by their
respective counsel, and (ii) record expungements of the Chino Hills Lis Pendens and the
Diamond Bar Lis Pendens, signed by their respective counsel, in the LAC Official Records and
the SBC Official Records, all within seven (7) business days following satisfaction of all of the
conditions precedent set forth in Sections 2.1, 2.2, 2.3 and 2.4, below, and (b) Chino Hills and
Diamond Bar shall file and serve requests for dismissal without prejudice of the Chino Hills
PRA Lawsuit and the Diamond Bar PRA Lawsuit, executed by their respective counsel, within
seven (7) business days following satisfaction of the conditions precedent set forth in Sections
2.1, 2.2 and 2.3, below:
2.1 Joint Powers Agreement. On or before February 5, 2019, the governing
bodies of Diamond Bar, Chino Hills and Industry (collectively, the "City Parties" and each
individually a "City Party") shall have each lawfully approved in accordance with the Joint
Exercise of Powers Act (Cal. Gov't Code § 6500 et seq.) and other applicable laws, and each
City Party shall have executed, that certain Amended and Restated Tres Hermanos Joint Powers
Agreement, in the form attached hereto as Exhibit "A" (the "JPA"), which shall reconstitute the
Tres Hermanos Conservation Authority (the "Authority").
2.2 Purchase and Sale Agreement. On or before February 8, 2019, the
Industry City Council and the governing body of the Authority shall have each lawfully
approved, and Industry, as seller, and the Authority, as buyer, shall have entered into that certain
Purchase and Sale Agreement and Joint Escrow Instructions, in the form attached hereto as
Exhibit "B" (the "Authority Purchase Agreement"), pursuant to which the Authority shall
acquire fee title to Tres Hermanos from Industry immediately following Industry's acquisition of
fee title to Tres Hermanos from the Successor Agency pursuant to that certain Purchase and Sale
Agreement and Joint Escrow Instructions Trusts Hermanos Ranch (the "Industry Purchase
Agreement"), which was approved by the Oversight Board on August 24, 2017 and subsequently
ratified" by the Successor Agency Board and the Industry City Council on September 28, 2017.
The purchase price for Tres Hermanos in the Authority Purchase Agreement is $41,650,000.
Chino Hills and Diamond Bar will collectively pay a portion of the purchase price in the
aggregate amount of $4,165,000, in proportion to the portions of Tres Hermanos within their
respective jurisdictional limits.
2.3 Acquisition of Tres Hermanos. On or before February 13, 2019, Industry
shall have acquired fee title to Tres Hermanos pursuant to the Industry Purchase Agreement and
the Authority shall have immediately thereafter acquired fee title to Tres Hermanos pursuant to
the Authority Purchase Agreement.
2.4 Resolution of All SGVWP Disputes. The Industry Parties and SGVWP
and its members, managers, agents, representatives, employees and affiliates (collectively, the
SGVWP Parties") shall have settled and resolved all existing and potential disputes among them
concerning that certain Master Ground Lease dated as of May 17, 2016, by and between
Industry, as landlord, and SGVWP, as tenant (as amended, the "Master Lease"), as "ratified" by
the Industry City Council on October 12, 2017, and the transfer of Tres Hermanos to the
Authority (collectively, the "SGVWP/Industry Disputes"), which settlement and resolution shall
require, without limitation, that the SGVWP/Industry Disputes, if any, shall have been (a) fully
and finally settled and/or (b) adjudicated and non-appealable, so that (i) neither Industry nor
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SGVWP can interfere in any manner with or otherwise affect the sale and transfer of Tres
Hermanos by Industry to the Authority in accordance with the Authority Purchase Agreement or
the Authority's use and administration of Tres Hermanos in accordance with the JPA following
such sale and transfer, and (ii) SGVWP has no right or interest whatsoever in or with respect to
Tres Hermanos pursuant to the Master Lease or otherwise and that the Master Lease shall have
been terminated and have no further force or effect. For purposes of this Section 2.4, the term
settled" means, without limitation on the preceding sentence, that (A) the Industry Parties and
the SGVWP Parties shall have dismissed with prejudice all lawsuits and other judicial
proceedings by the Industry Parties against SGVWP Parties, or by the SGVWP Parties against
the Industry Parties, Diamond Bar, Chino Hills and the Authority, with respect to the
SGVWP/Industry Disputes, and (B) in the event litigation has been formally initiated against the
Diamond Bar/Chino Hills Parties (as defined in Section 5, below) and/or the Authority, the
SGVWP Parties shall have released the Diamond Bar/Chino Hills Parties and/or the Authority,
and each of them, as applicable, from any and all Claims (as defined in Section 6.1, below).
Notwithstanding anything to the contrary in this Section 2.4, Industry is permitted to maintain
any action or initiate any cause(s) of action against SGVWP, so long as Industry does not seek to
invalidate the transfer of Tres Hermanos to the Authority and/or validate the Master Lease.
3. Waiver of Attorney' Fees re Los Angeles/Sacrament o Lawsuits. In the
event that the Los Angeles/Sacramento Lawsuits are not dismissed in accordance with Section 2,
above, and (a) any or all of the Los Angeles/Sacramento Lawsuits are thereafter adjudicated or
otherwise resolved in favor of Chino Hills and/or Diamond Bar, in whole or in part, Chino Hills
and Diamond Bar shall have no right to seek attorneys' fees, interest or costs, or any other
monetary damages from the Industry Parties or the Successor Agency Parties in connection
therewith, and (b) any or all of the Los Angeles/Sacramento Lawsuits are thereafter adjudicated
or otherwise resolved in favor of the Industry Parties and/or the Successor Agency Parties, in
whole or in part, neither the Industry Parties nor the Successor Agency Parties shall have any
right to seek attorneys' fees, interest or costs, or any other monetary damages from the Chino
Hills or Diamond Bar in connection therewith.
4. Industry Resolution of SGVWP Disputes. Industry shall use its
reasonable efforts to resolve and settle all of the SGVWP/Industry Disputes prior to the transfer
of fee title to Tres Hermanos to the Authority, provided that such resolution is reasonably
determined by the Industry City Council to be in Industry's best interest. In the event that such
resolution does not occur prior to such transfer, Industry shall continue to use its reasonable
efforts to achieve such resolution as soon as possible thereafter. Notwithstanding the foregoing,
in the event that Industry pursues any claims, suits and/or administrative proceedings against
SGVWP relating to the Master Lease, Industry's pursuit of such claims, suits and/or
administrative proceedings shall not constitute a breach under this Agreement, provided that
Industry does not seek to invalidate the transfer of Tres Hermanos to the Authority and/or
validate the Master Lease.
5. Indemnification. Industry agrees to indemnify, defend and hold harmless
Diamond Bar and Chino Hills, and their respective officers, elected and appointed officials,
agents, employees, representatives, administrators, attorneys, assigns and successors in interest
collectively, the "Diamond Bar/Chino Hills Parties"), and each of them, with respect to any
Claims that arise out of or relate in any way to the SGVWP/Industry Disputes, including without
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limitation any dealings between Industry and SGVWP or its affiliates involving Tres Hermanos
or any adjacent property owned or controlled, in whole or in part, by Industry. The foregoing
indemnification obligation shall include, but not be limited to, the burden and expense of
defending all claims, suits and administrative proceedings (with counsel reasonably approved by
the indemnified parties), even if such claims, suits or proceedings are groundless, false or
fraudulent, and conducting all negotiations of any description, and paying and discharging, when
and as the same become due, any and all judgments, penalties or other sums due against such
indemnified persons. Chino Hills and Diamond Bar, at their sole expense, may employ
additional counsel of its choice to associate with counsel representing Industry, provided that,
notwithstanding anything to the contrary in this Section 5, Industry shall have no obligation to
indemnify the Diamond Bar/Chino Hills Parties with respect to the attorneys' fees associated
with such additional counsel. The obligations of Industry under this Section 5 shall survive the
termination of this Agreement.
6. Mutual Releases. The Parties promise, agree and specifically release as follows,
which releases shall become effective upon the satisfaction of all of the conditions precedent set
forth in Section 2, above:
6.1 Industry Release. Except as to such rights or remedies as may be created
by this Agreement, the Authority Purchase Agreement and the JPA (collectively, the "Settlement
Documents"), Industry fully, finally and forever irrevocably releases, remises and discharges the
Diamond Bar/Chino Hills Parties, and each of them, from any and all past or present suits,
actions or causes of action, in law or in equity, debts, liens, contracts, agreements, promises,
liabilities, claims, demands, damages, losses, costs or expenses, of any nature whatsoever,
whether known or unknown, suspected or unsuspected (collectively, "Claims"), whether known
or unknown, disclosed or undisclosed, suspected or unsuspected, as a result of any act, event or
omission that occurred prior to the date of this Agreement arising out of, connected with or
incidental to Tres Hermanos, the Master Lease or the Tres Hermanos Lawsuits, including any
and all Claims for the recovery of any damages, costs, expenses or fees, including attorneys' fees,
associated therewith (collectively, the "Released Claims").
6.2 Chino Hills/Diamond Bar Release. Except as to such rights or remedies as
may be created by the Settlement Documents, Chino Hills and Diamond Bar fully, finally and
forever irrevocably releases, remises and discharges the Industry Parties and their officers,
elected and appointed officials, agents, employees, representatives, administrators, attorneys,
assigns and successors in interest, and each of them, from any and all Released Claims.
6.3 Limitations on Releases. The Parties acknowledge and agree that the
releases in Sections 6.1 and 6.2, above, are expressly limited to Released Claims and do not
include any other Claims of any kind, including without limitation any Claims for breach of any
Settlement Document or the failure to satisfy any conditions precedent set forth in the Settlement
Documents.
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6.4 Waiver of Civil Code Section 1542. With respect to the Released Claims,
each Party specifically waives the benefit of the provisions of Section 1542 of the California
Civil Code, which provides as follows:
A general release does not extend to claims that the creditor or
releasing party does not know or suspect to exist in his or her favor at
the time of executing the release and that, if known by him or her,
would have materially affected his or her settlement with the debtor or
released party."
Each Party has been advised by its attorneys of the meaning of Section 1542 of the California
Civil Code, and of the implications of waiving the benefits thereof. The Parties agree that this
waiver is an essential part of this Agreement, which would not have been entered into without
such provision.
7. Covenant Not to Sue. Each Party agrees not to sue any other Party, or in any way
assist any other person or entity in suing any other Party, with respect to any Released Claim.
This Agreement may be pleaded as a full and complete defense to, and may be used as the basis
for an injunction against any dispute, suit, or other proceeding that may be instituted, prosecuted,
or attempted in breach of any such Released Claim.
8. Representations and Warranties. Each of the Parties represents, warrants and
agrees as to itself as follows:
8.1 Such Party has received independent legal advice from its attorneys with
respect to the advisability of making the settlement provided for herein, and with respect to the
advisability of executing the Settlement Documents, and it is entering into this Agreement of its
own informed and free will and based upon its own judgment.
8.2 Neither such Party nor any official, agent, employee, representative or
attorney of or for it has made any statement or representation to any other Party regarding any
fact relied upon in entering into the Settlement Documents, and it is not relying upon any
statement, representation or warranty or promise, written or oral, of any other Party (or of any
officer, agent, employee, representative, trustee or attorney for any other Party) in executing the
Settlement Documents, or in making the settlement provided for herein, except as expressly
stated in the Settlement Documents.
8.3 Such Party has made such investigation of the facts pertaining to this
settlement and the Settlement Documents and of all the matters pertaining thereto as it deems
necessary and it has executed the Settlement Documents without fraud, duress or undue
influence.
8.4 Such Party or its responsible officer has carefully read and considered the
Settlement Documents and understands the contents hereof and the significance of its contents.
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8.5 This Agreement has been duly approved, executed and delivered by, and
constitutes the valid and binding obligation of, such Party, and that the individual executing this
Agreement on behalf of such Party has the authority to do so and bind such Party.
8.6 Each as otherwise expressly represented, warranted or provided in the
Settlement Documents, such Party assumes the risks (a) that it may hereafter discover facts in
addition to or contrary to those it believed to exist or relied upon in entering into the Settlement
Documents, (b) that it may have mistakenly understood matters relevant to entering into the
Settlement Documents and (c) that another Party may have negligently misrepresented or
negligently failed to disclose facts in connection with the entering into of the Settlement
Documents. Notwithstanding any such claims of misunderstanding, mistake, negligent
misrepresentation or negligent nondisclosure, such Party intends that the Settlement Documents
thereafter shall continue in full force and effect and shall not be subject to rejection or rescission
for any reason, provided that such Party reserves all rights provided for in the Settlement
Documents.
8.7 Such Party has not heretofore assigned, transferred, or granted, or
purported to assign, transfer, or grant, any of the Released Claims or any part thereof.
8.8 Each term of this Agreement (other than Recitals A through F, above) is
contractual and not merely a recital and each of Recitals A through F, above, is true and correct.
8.9 Such Party is aware that it may hereafter discover claims or facts in
addition to or different from those it now knows or believes to be true with respect to the matters
related herein. Nevertheless, it is the intention of such Party to fully, finally and forever settle
and release all such matters, and all claims relative thereto, which do now exist, may exist, or
heretofore have existed between them. In furtherance of such intention, the releases given herein
shall be and remain in effect as full and complete mutual releases of all such matters,
notwithstanding the discovery or existence of any additional or different claims or facts relative
thereto.
8.10 The consideration recited herein is the only consideration for entering into
this Agreement and that no promises or representations of other or further consideration have
been made by any person or entity.
9. No Admissions. Each Party acknowledges that this Agreement effects the
settlement of claims that are denied and contested by one or more other Parties, and that nothing
contained herein can be construed as an admission of liability by or on behalf of any Party, all of
which liability is expressly denied.
10. Own Counsel. Each of the Parties acknowledges that it has been represented by
counsel of its own choice throughout all of the negotiations that preceded the execution of this
Agreement and in connection with the preparation and execution of this Agreement.
11. Counterparts. This Agreement may be executed in one or more counterparts, each
of which will be deemed an original and all of which taken together shall constitute one and the
same instrument.
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12. Captions. The captions of paragraphs contained in this Agreement are for
reference only and shall not affect the meaning of any provision of this Agreement.
13. Own Costs. As between themselves, each Party shall bear its own costs, expenses
and attorneys' fees that it has heretofore incurred in connection with or arising out of the matters
set forth in the Recitals hereinabove.
14. Entire Agreement. It is expressly understood and agreed that the Settlement
Documents contain and represent the entire agreement between the Parties with respect to the
Released Claims, the settlement thereof and subject matter hereof, and merge, supersede and
replace all prior and contemporaneous prior discussions, understandings, negotiations,
agreements, representations, conditions, warranties, covenants and all other communications
between the Parties, whether written or oral, relating to such subject matter.
15. Amendment. This Agreement may be modified or amended only by an
agreement in writing that is approved by the governing body of each Party and duly executed by
all of the Parties, provided that such approval and execution by the Successor shall not be
required following the transfer of fee title to Tres Hermanos from Industry to the Authority.
16. Binding Effect. This Agreement is binding upon and shall inure to the benefit of
each of the Parties and their respective officers, elected and appointed officials, agents,
employees, representatives, administrators, attorneys, assigns and successors in interest.
17. Severability. In the event any covenant, condition, or other provision herein is
held to be invalid, void, or illegal, the same is deemed severed from the remainder of this
Agreement and will not affect, impair or invalidate any other covenant, condition, or other
provision herein unless a court finds that the stricken provision(s) were integral to this
Agreement and that it would be unfair to enforce the balance of the Agreement. If any covenant,
condition, or other provision herein is held to be invalid due to its scope or breadth, such
covenant, condition, or other provision shall be deemed valid to the extent of the scope or
breadth permitted by law.
18. Arm's Length Negotiations. This Agreement has been negotiated at arms' length
between persons knowledgeable in the matters dealt with herein. In addition, each of the Parties
has been represented by independent legal counsel of its own choice. Accordingly, any rules of
law, including, without limitation, Section 1654 of the California Civil Code, or any other
statute, legal decision, or common law principle of similar effect, that would require
interpretation of any ambiguities in this Agreement against the party that drafted it, is of no
application and is hereby expressly waived. The provisions of this Agreement will be interpreted
in a reasonable manner to effect the intentions of the Parties and of this Agreement.
19. Governing Law/Venue. This Agreement is made and entered into in the County
of Los Angeles, State of California, and the rights and obligations of the parties hereunder shall
in all respects be construed and enforced in accordance with, and governed by, the laws of the
State of California. The Parties agree that all legal actions (including, without limitation,
proceedings at law or in equity) arising out of this Agreement, shall be commenced and
maintained only in the Los Angeles County Superior Court, in any other appropriate court in Los
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Angeles County, California, or in the United States District Court for the Central District of
California. Each Party hereby agrees to submit to the jurisdiction of any and all such courts and
further agree that venue shall be proper only in such courts.
20. Mistake. Each Party has investigated the facts pertaining to the Settlement
Documents to the extent such Party deems necessary. In entering into the Settlement
Documents, each Party assumes the risk of mistake with respect to such facts. The Settlement
Documents are intended to be final and binding upon the Parties regardless of any claim of
mistake.
21. No Waiver. No provision herein may be waived unless in writing and signed by
the Party or Parties whose rights are thereby waived. Waiver of any one provision herein shall
not be deemed to be a waiver of any other provision herein.
22. Construction. This Agreement has been reviewed by the Parties, and by their
respective attorneys, and the Parties have had a full opportunity to negotiate their contents. The
Parties agree that the language in all parts of the Settlement Documents shall in all cases be
construed as a whole, according to its fair meaning.
23. No Third Parties Benefited. Nothing in this Agreement or the Covenant
Agreement, express or implied, is intended to confer upon any person or entity, other than the
Parties or their respective permitted successors and assigns, any rights or benefits under or by
reason of this Agreement or the Covenant Agreement.
24. Attorneys' Fees. In the event that any litigation shall be commenced concerning
this Agreement or any Party's performance under this Agreement, the court, in its discretion, may
award to the prevailing Party in such litigation, in addition to such other relief as may be granted,
that Party's reasonable costs and expenses, including without limitation attorneys' fees and court
costs, whether or not taxable, in addition to any other relief to which it may be entitled.
25. Exhibits. All Exhibits attached hereto are incorporated herein by this reference
and made a part of this Agreement.
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26. Business Day. The term "business day" means any day other than Saturday,
Sunday or a holiday on which the U.S. Postal Service does not deliver regular mail.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be duly executed
as of the date first hereinabove set forth.
CITY OF CHINO HILLS
By: __________________________
Konradt Bartlam, City Manager
ATTEST:
By: __________________________
Cheryl Balz, City Clerk
Approved as to form:
By: __________________________
Mark D. Hensley,
City Attorney
CITY OF DIAMOND BAR
By: _________________________
Daniel Fox, City Manager
ATTEST:
By: _________________________
Tommye Cribbins, City Clerk
Approved as to form:
By: _________________________
David DeBerry,
City Attorney
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CITY OF INDUSTRY & CITY COUNCIL
OF THE CITY OF INDUSTRY
By: __________________________
Troy Helling, City Manager
ATTEST:
By: __________________________
Julie Gutierrez-Robles,
Deputy City Clerk
Approved as to form:
By: __________________________
James M. Casso,
City Attorney
SUCCESSOR AGENCY OF THE
INDUSTRY-URBAN DEVELOPMENT
AGENCY AND ITS BOARD OF
DIRECTORS
By: ___________________________
Troy Helling, Executive Director
ATTEST:
By: __________________________
Julie Gutierrez-Robles,
Deputy Agency Secretary
Approved as to form:
By: _________________________
James M. Casso,
Agency General Counsel
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