Agenda packet — Fontana City Council, July 26, 2022 (part 4 of 10)

Planning Commission public hearing on July 5, 2022, as well as testimony from the project applicant and others; and
WHEREAS, based on the information presented to the City Council at the public hearing held for General Plan Amendment No. 21-001, Zoning Code Amendment No. 21- 002, Design Review No. 21-014 and Development Agreement No. 22-001, the testimony received, and the supporting documents in evidence, the City Council found that the proposed amendment and project is in conformance with the goals and policies of the General Plan as referred herein; and
WHEREAS, all impacts of the project were fully examined and mitigated, therefore, the preparation the appropriate CEQA document to support the City’s consideration of the project, as outlined in CEQA Guidelines §15070. The City Council finds that the Mitigated Negative Declaration contains a complete and accurate reporting of all the environmental impacts associated with the project and a Notice of Determination has been prepared for the City Council’s consideration; and WHEREAS, the City of Fontana wishes to protect and preserve the quality of the life throughout the City, through effective land use and planning; and WHEREAS, Conditions of Approval have been prepared and are attached hereto as Exhibit “B” for Design Review Project No. 21-014; and
Section 1. The City of Fontana City Council hereby makes the following findings for General Plan Amendment No. 21-001 in accordance with Section 30-31 “Purpose” of the Fontana Zoning and Development Code:

Finding: The purpose and intent is to keep an updated General Plan to reflect the current desires and needs of the citizens for the longterm growth of the City.

Findings of Fact: The applicant is proposing to change the General Plan Land Use Designation of the site from General Commercial (C-G) to Light Industrial (I-L). This would allow for the construction of a 102,330 square foot industrial commerce building. This development will assist with growing industrial commerce demand in the City of Fontana and the surrounding area.

Findings of Fact: The applicant is proposing to change the zoning designation of the subject site from Community Commercial (C-2) to Light Industrial (M1) to provide consistency with the proposed General Plan land use designation. The subject site is flanked to the north and south by parcels with a General Plan land use designation of Light Industrial (I-L) and developed with industrial commerce buildings. The proposed change would provide consistency with the zoning map. 657
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Section 2. The City of Fontana City Council hereby makes the following findings for Design Review No. 21-014 in accordance with Section 30-111 of the Fontana Zoning and Development Code:

Finding No. 1: This proposal meets or exceeds the criteria contained in Division 2 of the Zoning and Development Code and will result in an appropriate and desirable development.

Findings of Fact: The project, as proposed, is a request for the City Council to review and approve the site and architectural design for the proposed 102,330 square foot industrial commerce building. The industrial commerce building has been designed with office space totaling approximately 10,000 square feet. A gate-secured truck court with 11 loading docks are proposed on the south side of the building. The use of glazing, parapets, canopies, accent colors and painted banding will add structural and visual interest to the building.

Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site will be provided from two driveways, one on Sierra Avenue and the other at the termination of Summit Avenue. Proposed landscaping would be ornamental in nature and would feature trees, shrubs, and droughttolerant accent plants in addition to a variety of ground colors.

The project will be an appropriate and desirable development for the area. With the requested associated general plan amendment and zone change from General Commercial to Light Industrial, the project will meet or exceed the criteria contained in the Design Review section of the Fontana Zoning and Development Code.

Finding No. 2: The proposal is in its design and appearance is aesthetically and architecturally pleasing while enhancing the character of the surrounding neighborhood.

Findings of Fact: The proposed industrial commerce facility has been designed with the use of glazing, parapets, canopies, accent colors and painted banding will add structural and visual interest to the building.

Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from two driveways one on Sierra Avenue and the other at the termination of Summit Avenue. Proposed landscaping would be ornamental in nature and would features trees, shrubs, and droughttolerant accent plants in addition to a variety of groundcovers. The proposed building will be compatible with the industrial commerce 658
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centers north and south of the site and will provide a quality, aesthetically please development for the surrounding neighborhood.

Finding No. 3: The site improvements are appropriate and will result in a safe, well-designed facility.

Findings of Fact: The proposed development complies with the Zoning and Development Code standards. The improvements include sewer and storm drain systems, site circulation, parking, landscaping, parks, lighting, driveways, sidewalks and decorative paving.

Finding No. 4: The proposal is consistent with the General Plan and applicable Specific Plan.

Findings of Fact: The proposed General Plan land use designation of Light Industrial (I-L) is intended for employee-intensive uses, including business parking, research and development, technology centers, corporate and support office uses, clean industry, supporting retail uses, truck and equipment sales and related services. The proposed industrial commerce facility provides for a consistent blend of well-designed industrial development in the immediate vicinity.

Finding No. 5: The proposal promotes the public health, safety, and welfare of the community.

Findings of Fact: The proposed project as described in the above findings will result in the construction of a 102,330 square foot industrial commerce center. All new improvements such as driveways, streets, sidewalks, drive aisles, and setbacks will comply with all applicable building, zoning, and fire codes and standards, and therefore, shall promote the public health, safety, and welfare of the surrounding community.

NOW, THEREFORE, the City Council RESOLVES as follows:

Section 3. Compliance with California Environmental Quality Act. The City Council hereby adopts the Mitigated Negative Declaration on the proposed project. The City Council finds that the Mitigated Negative Declaration contains a complete and accurate reporting of all the environmental impacts associated with the Project. The City Council further finds that the Mitigated Negative Declaration has been completed in compliance with CEQA, 2019 Local Guidelines for Implementing the California Environmental Quality Act, and the State CEQA Guidelines.

Section 4. Based on the foregoing, the City Council of the City of Fontana hereby approves General Plan Amendment No. 21-001 attached hereto as Exhibit “A” to this Resolution and incorporated herein by this reference.
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Section 5. Based on the foregoing, the City Council of the City of Fontana hereby approves Design Review No. 21-014 subject to the Conditions of Approval, which are attached hereto as Exhibit “B” to this Resolution and incorporated herein by this reference.

Section 6. Resolution Regarding Custodian of Record: The documents and materials that constitute the record of proceedings on which this Resolution has been based are located at the Community Development Department – Planning Division, 8353 Sierra Avenue, Fontana, CA 92335. This information is provided in compliance with Public Resources Code section 21081.6.

APPROVED AND ADOPTED this 26th day of July 2022.

READ AND APPROVED AS TO LEGAL FORM:
_____________________
City Attorney
ATTEST:

I, Germaine McClellan Key, City Clerk of the City of Fontana and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City of Fontana at a regular meeting thereof, held on the 26th day of July 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
______________________________________
City Clerk
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EXHIBIT “A”

EXISTING GENERAL PLAN/ZONING
GENERAL COMMERCIAL (C-G/C-2)

PROPOSED GENERAL PLAN/ZONING
LIGHT INDUSTRIAL (I-L/M-1)
EXHIBIT “B”
Project Site
Project Site
I-L/M-1
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CITY OF FONTANA

CONDITIONS OF APPROVAL
PROJECT: Master Case No. (MCN) 21-040 DATE: July 26, 2022 Design Review Project No. 21-014
LOCATION: The project site is located on the northeast corner of Sierra Avenue and Summit Avenue (APN: 0239-161-28)
PLANNING DEPARTMENT:

1. This Design Review shall become null and void two (2) years from the date of approval, unless the appropriate permits have been obtained and construction, defined as permit obtainment, commencement of construction of the primary building on site, and successful completion of the first Building and Safety Division inspection, has commenced within this period.

2. The applicant shall defend, indemnify, protect and hold harmless the City of Fontana or its agents, officers, attorneys and employees from any and all actual or alleged claims, actions or proceedings against the City of Fontana or its agents, officers, attorneys or employees to attack, set aside, void, annul or seek monetary damages arising out of any challenge to the applicant’s proposed project or to any approvals of the Planning Commission and/or City Council concerning this project, including but not limited to actions challenging CEQA actions, permits, variances, plot plans, design plans, maps, licenses, and amendments. The City of Fontana shall promptly notify the applicant of any claim, action, or proceeding and the City of Fontana shall cooperate in the defense.

In the event of any such third-party action or proceeding, the City shall have the right to retain legal counsel. The applicant shall be responsible and reimburse the City for such legal fees and costs, in their entirety, including actual attorneys’ fees, which may be incurred by the City in defense of such action or proceeding. This indemnification shall also include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities and expenses incurred in connection with such claim, action, or proceeding whether incurred by applicant, the City and/or any parties bringing such forth.

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any part of this application or this condition of approval. Accordingly, applicant shall not sue the City for damages or monetary relief for any matter arising from or related to this condition of approval. Applicant’s sole and exclusive remedy shall be limited to declaratory/injunctive relief, mandate, and/or specific performance.

3. This project shall comply with all applicable provisions, regulations and development standards of the Fontana Zoning and Development Code.

4. Historic Archaeological Resources
A. Upon discovery of any tribal cultural or archaeological resources, cease construction activities in the immediate vicinity of the find until the find can be assessed. All tribal cultural and archaeological resources unearthed by project construction activities shall be evaluated by the qualified archaeologist and tribal monitor/consultant. If the resources are Native American in origin, interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place.

B. Preservation in place shall be the preferred manner of treatment. If preservation in place is not feasible, treatment may include implementation of archaeological data recovery excavation to remove the resource along the subsequent laboratory processing and analysis. All Tribal Cultural Resources shall be returned to the Tribe. Any historic archaeological material that is not Native American in origin shall be curated at a public, non-profit institution with a research interest in the materials, if such an institution agrees to accept the material. If no institution accepts the archaeological material, they shall be offered to the Tribe or a local school or historical society in the area for educational purposes.

C. Archaeological and Native American monitoring and excavation during construction projects shall be consistent with current professional standards.

All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken.

Principal personnel shall meet the Secretary of the Interior standards for archaeology and have a minimum of 10 years’ experience as a principal investigator working with Native American archaeological sites in southern California. The Qualified Archaeologist shall ensure that all other personnel are appropriately trained and qualified.

5. The construction contractor shall use the following source controls at all times:
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A. Construction shall be limited to 7:00 am to 6:00 pm on weekday, 8:00 am to 5:00 pm on Saturdays, and no construction on Sundays and holidays unless it is approved by the Building Inspector for cases that are considered urgently necessary as defined in Section 18-63(7) of the Fontana City Code. For all noise-producing equipment, use types and models that have the lowest horsepower and the lowest noise generating potential practical for their intended use.

B. The construction contractor will ensure that all construction equipment, fixed or mobile, is properly operating (tuned-up) and lubricated, and that mufflers are working adequately.

C. Have only necessary equipment onsite.

D. Use manually-adjustable or ambient-sensitive backup alarms. When working adjacent to residential use(s), the construction contractor will also use the following path controls, except where not physically feasible, when necessary:

E. Install portable noise barriers, including solid structures and noise blankets, between the active noise sources and the nearest noise receivers.

F. Temporarily enclose localized and stationary noise sources.

G. Store and maintain equipment, building materials, and waste materials as far as practical from as many sensitive receivers as practical.

6. Any foam treatment used for architecture treatments and/or projections located on the first floor shall be covered with concrete or similar durable material a minimum of ¼ inch thick, or as determined by the Director of Planning.

7. All Conditions of Approval contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions, signed by the property owner or legal representative, shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits.

8. The current development fees must be paid prior to issuance of building/construction permits.

9. In the event that one or more of the Conditions of Approval for this project needs to be amended and/or deleted due to health, safety or welfare concerns, the City Manager is authorized to approve or conditionally approve such amendment/deletion, provided that City Manager shall bring such proposed amendment/deletion to the City Council at the next available meeting for City Council ratification, but in no event later than sixty (60) days following the City Manager’s decision. The noticing of such City Council meeting for possible ratification shall be pursuant to Section 30-30 and Section 30-31 of the Fontana City Code.

10. There shall be five (5) feet of landscaping and two (2) feet of decorative concrete for passengers to step out of vehicles, total of seven (7) feet, at end of automobile parking aisles.
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11. The applicant/developer shall comply with the mitigation measures identified in the Initial Study/Mitigated Negative Declaration Mitigation Monitoring and Reporting Program.

PRIOR TO CERTIFICATE OF OCCUPANCY

12. The applicant shall have fully provided, constructed, or otherwise meet all Planning Division’s requirements per approved plans, and shall have addressed all punch list items to the satisfaction of the Director of Planning.

ENGINEERING LAND DEVELOPMENT:

13. The project shall be served by the City’s sanitary sewer system, all sewer facilities shall be constructed in accordance with the City Standards. Main trunk sewer line shall be in accordance with master sanitary sewer plan or as approved by the City Engineer.

14. The applicant shall obtain design and plan approval from all utility providers having jurisdiction over the on-site and off-site utilities. Completion of all undergrounding of on-site and off-site utilities is required by Section 27-52 of the City Code of Fontana and in accordance with plans and specifications approved by the City Engineer.

15. It is the Applicant’s responsibility to maintain all improvements and utilities within the public right-of-way, including street sweeping, prior to final acceptance by the City. Where applicable, the applicant must provide provisional street sweeping schedules to the City.

PRIOR TO ISSUANCE OF GRADING PERMIT

16. Applicant shall submit and gain approval of a complete WQMP Report in accordance with the County of San Bernardino Technical Guidance Document and latest template.

PRIOR TO MAP RECORDATION

17. A Security to guarantee the proper setting of all survey monuments within the project limits, and replacement of any existing survey monuments damaged or removed during construction; will be collected during the bond and agreement process. Survey monuments shall be placed as required by plans and corner records must be recorded with the County.

PRIOR TO ISSUANCE OF CONSTRUCTION PERMITS

18. Record tract map (for condominium purposes) required for the development.

19. Applicant shall provide a Subdivision Improvement Agreement with accompanying security.

PRIOR TO CERTIFICATE OF OCCUPANCY

20. Traffic signal modification at the South Highland Avenue driveway entry must be complete and fully functional.

PRIOR TO FINAL ACCEPTANCE OF PROJECT
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21. Applicant/Design Engineer to provide the City of Fontana with As-Built/Record Drawings for all public improvement plans.

22. Applicant/Landscape Architect shall provide a “Landscape Certificate of Compliance” certifying that the work has been designed, installed, and will be maintained in accordance with the City of Fontana’s Model Water Efficiency Landscape Ordinance (Ordinance 1734, FCC Section 28).

23. All underground utilities (sewer and storm drain) shall be video inspected by applicant/contractor. Sewer video shall include clean-out connection, clean-out to lateral segment, lateral, and main line. Videos to be inspected and approved by City Inspection. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff. If removal and replacement of any utility is required, a subsequent video of the repair will be required.

24. Applicant/Engineer of Record shall submit a conforming copy of the recorded Memorandum of Agreement for the Water Quality Management Plan and Storm Water BMP Transfer. The Access, Maintenance, and the WQMP Certification for BMP Completion must be submitted to the City Project Engineer.

BUILDING & SAFETY:

25. Shall comply with the latest adopted edition of the following codes as applicable:

A. California Building Code
B. California Residential Code
C. California Electrical Code
D. California Mechanical Code
E. California Plumbing Code
F. California Energy Code.

G. California Fire Code
H. California Green Building Standards Code

26. Automatic fire suppression systems shall be installed in all new construction per Article II, Chapter 11 of the Code of the City of Fontana. Design and type of system shall be based upon the requirements of the Building Code, Fire Code and the requirements of the Fontana Fire Prevention District.

27. Any temporary building, trailer, commercial coach, etc. installed and/or used in connection with a construction project shall comply with Fontana City Code.

28. All perimeter/boundary walls shall be designed and constructed so that the outer/exterior face of the wall is as close as possible to the lot line. In any case, the outer/exterior face of the wall shall be within two (2) inches of the lot line.

Distances greater than two (2) inches may be approved prior to construction by the Building Official on a case by case basis for extenuating circumstances. 666
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29. All lot lines, easement lines, etc. shall be located and/or relocated in such a manner as to not cause any existing structure to become non-conforming with the requirements of the latest adopted edition of the Building Code, or any other applicable law, ordinance, or code.

30. The Tract or Parcel map shall be recorded prior to the issuance of any building permit.

31. Grading Requirements:

A. Grading plans shall be submitted to and approved by Building & Safety. The grading plans shall indicate all site improvements, and shall indicate complete drainage paths of all drainage water run-offs.

B. All drainage water shall drain via approved methods, to an approved location – public street, public drainage system, etc.

C. Drainage water shall not cross over a public sidewalk. Drainage water may however cross under a sidewalk if an approved drainage structure is used.

D. A recorded drainage acceptance agreement is required from adjoining property(s) receiving flows from this property.

E. No water course or natural drainage shall be obstructed.

F. Minimum slope or grade for ALL drainage structures shall be one half (0.50) percent for concrete and one (1.0) percent for all other, or as otherwise approved by the Building Official.

G. Drainage water shall not pass from an ‘improved’ type of drainage structure to an ‘unimproved’ type of drainage structure (e.g., concrete swale to a dirt swale) unless otherwise approved by the Building Official.

H. A complete hydrology study using the latest edition of the San Bernardino County Flood Control Hydrology Manual, and complete hydraulic calculations justifying the size, slope, capacity, etc. of any and all drainage structures being utilized, shall be submitted to and approved by Building & Safety.

The onsite drainage system shall, as a minimum, be designed to handle the run off generated by a ten (10) year storm. Check for flooding of all on site structures (buildings) and all adjacent properties during a hundred (100) year storm.

I. The grading plans shall, as a minimum, contain sections at all lot lines and/or permit boundary lines. These sections shall clearly indicate:

1. The relationship between the proposed finished on site grade elevations and the existing adjacent property grade elevations (Indicate any additional drainage water that may come from an adjacent property.); and

2. The ground cover/finished surface material being proposed (e.g., type of pavement, plant material, etc.); and
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3. All proposed drainage structures; and

4. Any proposed and/or required walls or fencing.

32. All signs shall be Underwriters Laboratories approved, or equal.

33. Permits are required prior to the removal and/or demolition of structures.

34. All exterior lighting shall be orientated, directed, and /or shielded as much as possible so that direct illumination does not infringe onto adjoining properties.

PRIOR TO ISSUANCE OF BUILDING/CONSTRUCTION PERMITS

35. The following items (as applicable) shall be completed and/or submitted to Building & Safety as applicable prior to the issuance of building permits for this project:
a. Precise grading plans shall be approve
b. Rough grading completed
c. Compaction certification
d. Pad elevation certification
e. Rough grade inspection signed off by a City Building Inspector SAN BERNARDINO COUNTY FIRE DEPARTMENT:

36. Jurisdiction. The above referenced project is under the jurisdiction of the Fontana Fire Protection District as served by the San Bernardino County Fire Department (herein “Fire Department”). Prior to any construction occurring on any parcel, the applicant shall contact the Fire Department for verification of current fire protection requirements. All new construction shall comply with the current California Fire Code requirements and all applicable statutes, codes, ordinances, and standards of the Fire Department.

37. Fire Access Road Width. Prior to map recordation, all fire access roadways shall be designed to meet the requirements for this development and shall be approved by the Fire Department. All buildings shall have access provided by approved roads, alleys and private drives with a minimum twenty-six (26) foot unobstructed width and vertically to fourteen (14) feet six (6) inches in height. Buildings three (3) stories in height or more shall have a minimum access of thirty (30) feet unobstructed width and vertically to fourteen (14) feet six (6) inches in height.

38. Turnaround. An approved turnaround shall be provided at the end of each roadway one hundred and fifty (150) feet or more in length. Cul-de-sac length shall not exceed six hundred (600) feet; all roadways shall not exceed a 12% grade and have a minimum of nineteen (19) foot inside radius and a forty-five (45) foot outside radius for all turns.

39. Street Signs. Approved temporary or permanent street signs shall be installed throughout the project prior any combustible materials being placed on the construction site.
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40. Fire Lanes. The applicant shall submit a site plan to the Fire Department for review and approval of all proposed signage and striping for all fire access roadways. All curbs adjacent to fire lanes shall be painted red and “No Parking, Fire Lane” signs shall be installed on public and private roads in accordance with approved standards.

41. Water System Commercial. Prior to map recordation, all water supply systems shall be designed to meet the required fire flow for this development and shall be approved by the Fire Department. The required fire flow shall be determined by using Appendix B of the California Fire Code. A minimum of one new six (6) inch fire hydrant assembly with two (2) two and one half (2 1/2) inch and one (1) four (4) inch outlet shall be provided. All fire hydrants shall be spaced no more than three hundred (300) feet apart as measured along vehicular travel-ways.

42. The Fire Flow for this project shall be: 3375 GPM for a 2 hour duration at 20 psi residual operating pressure. Fire Flow is based on a 102,330 sq.ft. structure.

43. Hydrant Marking. Blue reflective pavement markers indicating fire hydrant locations shall be installed as specified by the Fire Department.

44. Water System Certification. The applicant shall provide the Fire Department with a letter from the serving water company, certifying that the required water improvements have been made or that the existing fire hydrants and water system will meet distance and fire flow requirements. Fire flow water supply shall be in place prior to placing combustible materials on the jobsite.

45. Combustible Protection. Prior to combustibles being placed on the project site an approved paved roadway providing fire access and fire hydrants providing an acceptable fire flow shall be installed.

46. Fire Sprinkler-NFPA #13. An automatic fire sprinkler system complying with NFPA 13 and Fire Department standards is required. A fire sprinkler contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The plans shall include hydraulic calculations and manufacturer specification sheets. The required fees shall be paid at the time of plan submittal.

47. Fire Alarm, Waterflow Monitoring. A water flow monitoring fire alarm system complying with the California Fire Code, NFPA and all applicable codes is required or fire sprinkler systems with twenty (20) sprinkler heads or more. A fire alarm contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.

48. Fire Extinguishers. Hand portable fire extinguishers are required. The location, type, and cabinet design shall be approved by the Fire Department. 669
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49. Commercial (large facility) Addressing. Commercial and industrial developments in excess of 100,000 sq. ft. shall have the street address installed on the building with numbers that are a minimum twelve (12) inches in height and with a one and one half (1 ½) inch stroke. The street address shall be visible from the street. During the hours of darkness, the numbers shall be electrically illuminated (internal or external). Where the building is two hundred (200) feet or more from the roadway, additional non-illuminated contrasting six (6) inch numbers shall be displayed at the property access entrances.

50. Key Box. An approved Fire Department key box is required. The key box shall be provided with a tamper switch and shall be monitored by a Fire Department approved central monitoring service.

51. Security Gates. In commercial, industrial and multi-family complexes, all swing gates shall have an approved fire department Knox Lock. Where an automatic electric security gate is used, an approved Fire Department override switch is required.

52. Material Identification Placards. The applicant shall install, in all locations deemed appropriate by the Fire Department, approved material identification placards on the outside of all buildings and/or storage tanks that store hazardous or flammable materials. Additional placards shall be required inside the buildings when chemicals are segregated into separate areas.

53. High-Piled Storage. The applicant shall submit an application for a High-Piled Storage permit for storage of over 12’ in height of Class I-IV commodities and/or over 6’ in height of high hazard commodities. Three (3) sets of detailed plans and a commodity analysis report shall be submitted to the Fire Department for review and approval. The applicant shall submit to the Fire Department concurrently with any racking permits to the Building and Safety division.

54. Secondary Access. The development shall have a minimum of 2 points of vehicular access during each phase of construction for fire and emergency access purposes and for evacuation routes.

END OF CONDITIONS OF APPROVAL
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ATTACHMENT NO. 2
ORDINANCE NO. 2022-____

AN ORDINANCE OF THE CITY COUNCIL OF CITY OF FONTANA, APPROVING ZONE CHANGE NO. 21-002, TO AMEND THE ZONING DISTRICT MAP DESIGNATION FROM GENERAL COMMERCIAL (C-2) TO LIGHT INDUSTRIAL (M-1) FOR APPROXIMATELY 4.49 ACRES LOCATED AT THE NORTHEAST CORNER OF SIERRA AVENUE AND SUMMIT AVENUE (APN 1118-041-06)

THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA, DOES HEREBY FIND AS FOLLOWS:

WHEREAS, the applicant submitted a request for Zoning District Map Amendment (Zone Change No. 21-002) to amend the zoning map designation for parcel APN 1118-041-06 from the General Commercial (C-2) Zoning District to the Light Industrial (M-1) Zoning District; and
WHEREAS, on July 5, 2022, the Planning Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties at a public hearing held on Zoning District Map Amendment (Zone Change) No. 21-002 and related entitlements, and after carefully considering all information pertaining to the proposed project, including the staff report, findings, and all information, evidence, and testimony presented, the Planning Commission recommended approval to the City Council of Zoning District Map Amendment (Zone Change) No. 21-002; and
WHEREAS, after the publication of notice as required by law, the City Council of the City of Fontana, California conducted a public hearing on Zoning District Map Amendment (Zone Change) No. 21-002; and
WHEREAS, on July 26, 2022, the City Council held a duly noticed public hearing on Zoning District Map (Zone Change) Amendment No. 21-002 along with the entitlement referenced herein, received testimony and the supporting documents in evidence, and the City Council found that the Zoning District Map Amendment is in conformance with the goals and policies of the General Plan to provide a community that is balanced between residential, commercial, and industrial that is developed to high standards and provides diverse economic and social opportunities for our citizens and those who wish to invest here; and
WHEREAS, Zone Change Amendment No. 21-002 is consistent with the goals and policies of the City of Fontana, General Plan Goal 7 of Chapter 15, “support highquality development in design standards and land use decisions”; and

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
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Section 1. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety and welfare of the community.

Section 2. The City of Fontana City Council hereby makes the following findings for Zoning District Map Amendment (Zone Change) No. 21-002 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:

Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when
modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.

Findings of Fact: The applicant is proposing to amend the project site from the General Commercial (C-2) Zoning District Map designation to the Light Industrial (M-1) designation. The C-2 Zoning District does not permit industrial development; the M-1 designation would allow the applicant to develop the project site with industrial development consistent with development to the north, east, and south.

Section 3. The City Council hereby adopts the Mitigated Negative Declaration on the proposed project. The City Council finds that the Mitigated Negative Declaration contains a complete and accurate reporting of all the environmental impacts associated with the Project. The City Council further finds that the Mitigated Negative Declaration has been completed in compliance with CEQA, 2019 Local Guidelines for Implementing the California Environmental Quality Act, and the State CEQA Guidelines; and
Section 4. The City Council approves Zoning District Map Amendment (Zone Change) No. 21-002 to amend the zoning designation for APN 1118-041-06 from General Commercial (C-2) to Light Industrial (M-1) as shown on Exhibit “A”, and attached hereto and by this reference incorporated; and Section 5. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from the passage thereof, shall be published by the City Clerk at least once in the Herald News or other local newspaper of the general circulation, published and circulated in the City of Fontana, and henceforth and thereafter the same shall be in full force and effect. 672
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APPROVED AND ADOPTED this 13th day of September 2022.

READ AND APPROVED AS TO LEGAL FORM:
_________________________________________
City Attorney
I, Germaine McClellen Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance adopted by the City Council and was introduced at a regular meeting on the 26th day of July 2022, and was finally passed and adopted not less than five days thereafter on the 13th day of September 2022, by the following vote to wit:

AYES:

NOES:

ABSENT:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
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EXHIBIT “A”
M-1 M-1
Existing Zoning
General Commercial (C-2)
Proposed Zoning
Light Industrial (M-1)
C-2
M-1
Project Site
Project Site
674
ATTACHMENT NO. 3
ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA APPROVING DEVELOPMENT AGREEMENT
(AGR NO. 22-001) BETWEEN THE CITY OF FONTANA

AND ZECHARIA HOVAV AND MALCA HOVAV, WHICH

PROVIDES A PUBLIC BENEFIT FEE IN THE AMOUNT OF
$434,903 DOLLARS
WHEREAS, the City Council ("City Council") of the City of Fontana ("City") is authorized by California Government Code sections 65864 et seq. and section 30-322 of the City's Development Code ("Development Code") to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and WHEREAS, the City has found that development agreements strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and
WHEREAS, the City of Fontana, a California Municipal Corporation ("City") and Zecharia Hovav and Malca Hovav ("Developer") entered into a Development Agreement ("DA"), dated as of July 26, 2022 for reference purposes only, whereby Developer is to acquire fee title to certain real property (the "Property"); and WHEREAS, Developer's interest in the Property, including that interest to be conveyed pursuant to the DA, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and WHEREAS, Developer proposes the development of the Property for an industrial commerce building totaling approximately 102,330 square feet on the Property, entailing front end investment in the planning, entitlement and development of the Property to achieve the goals of the City's General Plan ("General Plan"), as further described and conditioned in the Development Agreement (collectively, such development shall be referred to herein as the "Project"); and
WHEREAS, City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan; and WHEREAS, City has found that the development agreement attached hereto as Exhibit A and incorporated herein by reference ("Development Agreement") is consistent 675
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with City's General Plan and it has been reviewed and evaluated in accordance with Section 30-102 of the City Development Code; and
WHEREAS, City has determined that by entering into the Development Agreement: (i) City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan and (ii) City will benefit from increased employment, industrial opportunities created by the Project for residents of the City; and
WHEREAS, An Initial Study/Mitigated Negative Declaration (IS/MND) has been prepared for this project in accordance with Section 15072 of the California Environmental Quality Act (CEQA) and Section 6.04 of the 2019 City of Fontana Local Guidelines for Implementing the CEQA. Based on the information in the IS/MND, all significant impacts anticipated as a result of project implementation would be less than with mitigation incorporated, and a Mitigation Monitoring and Reporting Program (MMRP) has been prepared for the Planning Commission’s consideration; therefore, a Notice of Determination has been prepared.

WHEREAS, the terms and conditions of the Development Agreement have undergone review by City at publicly noticed hearings and have been found to be fair, just and reasonable and consistent with the General Plan. Further, City finds that: (i) the economic interests of the City's citizens and the public health, safety and welfare will be best served by entering into the Development Agreement; (ii) the Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located; (iii) the Development Agreement is consistent with the General Plan; (iv) the Development Agreement is in conformity with the public convenience, general welfare and good land use practice; (v) the Development Agreement will not be detrimental to the public health, safety and general welfare; and (vi) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the Property or any other property.

THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS
FOLLOWS:

Section 1. Based on the foregoing, the City of Fontana City Council adopts the Mitigated Negative Declaration and Mitigation Monitoring Reporting Program in accordance with Section 15072 of the California Environmental Quality Act (CEQA) and Section 6.04 of the 2019 City of Fontana Local Guidelines for Implementing the CEQA. 676
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Section 1. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves the development agreement, a copy of which is on file with the City Clerk and incorporated by reference herein attached as “Exhibit A” for entitled "Development Agreement No. 22-001” between Zecharia Hovav and Malca Hovav and the City.

Section 2. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety and welfare of the community because the Development Agreement will enable needed public improvements at the Property and the economic development of the Property will benefit the citizens of the City.

Section 3. The City Council hereby incorporates by reference the Recitals set forth herein and adopts those recitals as its own as though fully set forth in this Ordinance.

Pursuant to California Government Code section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that the Development Agreement is consistent with the General Plan because the Development Agreement will result in the development of the Property at the intensity and density allowed under the General Plan and with the restrictions and standards set forth in the City's Municipal Code, and the Development Agreement.

Section 4. The City Clerk shall cause to be recorded with the San Bernardino County Recorder a copy of the executed Development Agreement at the time and in the manner provided for in the DA.

Section 5. This Ordinance shall take effect thirty (30) days after the date of its adoption, and prior to the expiration of the fifteen (15) days from the passage thereof, the Ordinance or a summary of the Ordinance shall be published at least once in the Herald News, a newspaper of general circulation in the City. Thereafter this Ordinance shall be in full force and effect.

APPROVED and ADOPTED this 26th day of July 2022.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney
I, Germaine McClellen Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance adopted by the City Council and was introduced at a regular meeting on the 26 th day of
677
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July 2022, and was finally passed and adopted not less than five days thereafter on the 13th day of September 2022 by the following vote to wit:

AYES:

NOES:

ABSENT:

City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:

City Clerk
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EXHIBIT "A"

DEVELOPMENT AGREEMENT
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Recorded at request of: )
Clerk, City Council )
City of Fontana )
)
When recorded return to: )
City of Fontana )
8353 Sierra Avenue )
Fontana, CA 92335 )
Attention: City Clerk )
)
Exempt from Filing Fees, Government Code
Section 6103
DEVELOPMENT AGREEMENT NO. 22-001

A DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation
(“City”)
and
Zecharia Hovav and Malca Hovav
(“Owner”)
680
Exhibit A
DEVELOPMENT AGREEMENT NO. 22-001
This Development Agreement (hereinafter “Agreement”) is entered into effective on the date it is recorded with the San Bernardino County Recorder (hereinafter the “Effective Date”) by and among the City of Fontana, a California municipal corporation (hereinafter, “CITY”), and Zecharia Hovav and Malca Hovav, a married couple (hereinafter, collectively “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement with respect to that certain real property located at the northeast corner of Sierra Avenue and Summit Avenue (APN: 239-161-28), as more particularly described on Exhibit “A” and shown on Exhibit “B” to this Agreement (the “Property”), and proceedings have been taken in accordance with the rules and regulations of CITY; and WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development Approvals described in this Agreement, the City Council of the City of Fontana reviewed and considered the Initial Study and Mitigated Negative Declaration and made findings concerning the mitigation measures and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and
WHEREAS, DEVELOPER has filed an application for, and the City Council has approved, General Plan Amendment (GPA) No. 21-001, Zoning Code Amendment (ZCA) No. 21-002, and Design Review Permit (DRP) No. 21-014.

WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and any Specific Plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and 681

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WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “CITY” means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.

1.1.3 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.4 "Development Agreement Policies" means those certain development agreement policies approved by CITY pursuant to Ordinance No. ____, adopted on __________________, as may be amended, as Resolution No. _________, adopted on ___________________, as may be amended.
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1.1.5 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) conditional use permits and design review permits;
(b) General Plan and Zoning Code amendments; and
(e) grading, encroachment and building permits.

1.1.6 “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code).

1.1.8 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.9 “Effective Date” means the date the ordinance approving this Agreement becomes effective.

1.1.10 “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date.

1.1.11 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date.

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improvement and construction standards and specifications applicable to the development of the property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.13 “OWNER” means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property.

1.1.14 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.15 “Project” means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.16 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.

1.1.17 “Reservations of Authority” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement.

1.1.18 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.

1.1.19 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

2. GENERAL PROVISIONS.
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2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.

2.2 Ownership of Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the Property or a portion thereof.

2.3 The initial term of this Agreement shall commence on the Effective Date, and shall continue for a period of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. Notwithstanding the foregoing, the term of this Development Agreement may be extended for an additional five (5) years following expiration of the initial term, provided the following have occurred:
(a) OWNER provides at least one hundred eighty (180) days written notice to CITY prior to the expiration of the initial term;
(b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the gross area of the commercial/industrial buildings contemplated by the Project; and
(c) OWNER is not then in uncured default of this Agreement.

The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the “Term.”

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410 et seq., to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement. 685

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Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the Property.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.

2.4.4 Partial Release of Purchaser, Transferee or Assignee of Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot, which has been finally subdivided as provided for in the Development Plan and for which a commercial or industrial plot plan for development of the lot has been finally approved pursuant to the Development Plan, may submit a request, in writing, to CITY to release said lot from the obligations under this Agreement relating to all other portions of the property. Within thirty (30) days of such request, CITY shall review, and if the above conditions are satisfied shall approve the request for release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.4 shall cause, or otherwise affect, a release of OWNER from its duties and obligations under this Agreement.

2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no 686

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longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A Certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and the Development Agreement Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement.

2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY buildings on which construction has not yet begun shall be refunded to OWNER by CITY.

2.7 Notices.
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(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

If to CITY:

City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600
Copy to:

Best, Best & Krieger, LLP
2855 E. Guasti Rd., Ste. 400
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441
If to OWNER:

Zecharia and Malca Hovav
1633 Glenwood Ave.

Upland, CA 91784
Telephone: (909) 227-3368
Copy to:

Allard Engineering, Inc,
16866 Seville Ave.

Fontana, CA 92335
Attn: Ray Allard
Telephone: (909)356-1815
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
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3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise its discretion in accordance with the Development Plan, and as provided by this Agreement including, but not limited to, the Reservations of Authority. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters.

City of Camarillo, (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4.

3.4 Phasing Plan. Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan.

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and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

In the event any such subsequently adopted Development Exaction fulfills the same 690

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purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes. (e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement. (f) Regulations which are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property.

3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations which do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.

3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.7 Public Works. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction.

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event OWNER is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by OWNER and upon OWNER’S provision of adequate security for costs CITY may reasonably incur, CITY shall negotiate the purchase of the necessary real property interests to allow OWNER to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. OWNER shall pay all costs associated with such acquisition or condemnation proceedings. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies.

3.10 Tentative Tract Map Extension. Notwithstanding the provisions of Section 66452.6 of the Government Code, no tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be granted an extension of time except in accordance with the Existing Land Use Regulations.

3.11 Vesting Tentative Maps. If any tentative or final subdivision map, or tentative or final parcel map, heretofore or hereafter approved in connection with development of the Property, is a vesting map under the Subdivision Map Act (Government Code Section 66410 et seq.) and if this Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to develop to OWNER, then and to that extent the rights and protections afforded OWNER under the laws and ordinances applicable to vesting maps shall supersede the provisions of this Agreement. Except as set forth immediately above, development of the Property shall occur only as provided in this Agreement, and the provisions in this Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.

3.12 Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project. OWNER shall contract with the CITY for CITY-owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs which will not be fully met by the 692

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Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees.

4.2.1 Amount and Components of Fee.

The amount of the public facilities and services mitigation fees may be periodically adjusted by City.

4.2.2 Time of Payment. The fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permits. No fees shall be payable for building permits issued prior to the Effective Date of this Agreement, but the fees required pursuant to Subsection 4.2.1 shall be paid prior to the re-issuance or extension of any building permit for which such fees have not previously been paid.

4.2.3 Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.2.1 for the dedication of land, the construction of improvements or the payment of fees.

4.3 Public Benefit Fee. Within twelve (12) months of the issuance of the Certificate of Occupancy for the building, OWNER shall pay to the City a one-time public benefit fee totaling Four Hundred Thirty Four Thousand Nine Hundred Three Dollars ($434,903).

5. FINANCING OF PUBLIC IMPROVEMENTS.

If deemed appropriate, CITY and OWNER will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public infrastructure facilities required as part of the Development Plan. CITY also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, OWNER may be reimbursed to the extent that OWNER spends funds or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

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accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council.

6.2 Special Review. The City Council may order a special review of compliance with this Agreement at any time. The Planning Director shall conduct such special reviews.

6.3 Procedure.
(a) During either a periodic review or a special review, OWNER shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on OWNER.
(b) Upon completion of a periodic review or a special review, the Planning Director shall submit a report to the City Council setting forth the evidence concerning good faith compliance by OWNER with the terms of this Agreement and his or her recommended finding on that issue.
(c) If the City Council finds on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded.
(d) If the City Council makes a preliminary finding that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Council may modify or terminate this Agreement as provided in Section 6.4 and Section 6.5. Notice of default as provided under Section 7.4 of this Agreement shall be given to OWNER prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.

6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and,
(c) Such other information as is reasonably necessary to inform OWNER of the nature of the proceeding.

6.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard.

OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied 694

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in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder.

Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. DEFAULT AND REMEDIES.

7.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

7.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other nonmonetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
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(a) Money damages are unavailable against CITY as provided in Section 7.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

7.3 Release. Except for non-damage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.

7.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsection 6.5 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

7.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default. 696

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8. THIRD PARTY LITIGATION.

8.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’s determination.

CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

8.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

8.3 Indemnity. In addition to the provisions of 8.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

8.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or 697

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asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

8.5 Reservation of Rights. With respect to Sections 8.2, 8.3 and 8.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor.

8.6 Survival. The provisions of this Sections 8.1 through 8.6, inclusive, shall survive the termination of this Agreement.

9. MORTGAGEE PROTECTION.

The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.

Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations 698

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or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY , the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

10. MISCELLANEOUS PROVISIONS.

10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code.

10.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

10.4 Governing Law; Interpretation. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

10.6 Singular and Plural. As used herein, the singular of any word includes the plural.

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default of any such OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a single lot which has been finally subdivided and sold to such OWNER as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

10.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element.

10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.

10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

10.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, epidemics, pandemics, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control, (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.

10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

10.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument. 700

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10.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

10.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

10.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.

10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

10.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
701

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10.20 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below.

OWNER
Zecharia and Malca Hovav
By: ________________________
Zecharia Hovav
By: ________________________
Malca Hovav
Dated: ______________________
702

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ACKNOWLEDGMENT
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 )
On before me,
______________________________
_______
(insert name and title of the
officer)
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 _________________________________ (Seal)
703

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CITY:

CITY OF FONTANA, a California
municipal corporation
By:_____________________________
Acquanatta Warren, Mayor
Dated: __________________
By: ________________________________
Matt Ballantyne, City Manager
ATTEST:

By:_____________________________
Germaine McClellan Key, City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
________________________________
Ruben Duran, City Attorney
704

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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 _________________________________ (Seal)
705
City of Fontana
Action Report
Planning Commission
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-1505 Agenda Date: 7/5/2022
Agenda #: PH-C Category: Public Hearing
FROM:

Planning Department
TITLE:

Master Case No. 21-040, General Plan Amendment No. 21-001, Zoning Change No. 21-002, Design Review No. 21-014 and Development Agreement No. 22-001 - A request to amend the General Plan Land Use Designation for the subject site from General Commercial (C-G) to Light Industrial (I-L) and to amend the Zoning Map from General Commercial (C-2) to Light Industrial (M-1), design review for site and architectural review of a 102,330 square foot industrial commerce , and for a development agreement associated with the development of a 102,330 square foot industrial commerce building.

RECOMMENDATION:

Based on the information contained in this staff report, staff recommends that the Planning Commission adopt Resolution No. PC 2022-___, and forward a recommendation to the City Council to:

1. Adopt the Initial Study, Mitigated Negative Declaration and Mitigation Monitoring and reporting Program and direct staff to file a Notice of Determination; and

2. Adopt a resolution approving General Plan Amendment No. 21-001; and,

3. Adopt an ordinance approving Zone Change No. 21-002; and,

4. Adopt an ordinance approving Development Agreement No. 22-001; and,

5. Adopt a resolution approving Design Review No. 21-014, subject to the attached Findings and Conditions of Approval
APPLICANT:

Ray Allard
Allard Engineering
16866 Seville Avenue
Fontana, CA 92335
LOCATION:

The project site is located on the northeast corner of Sierra Avenue and Summit Avenue (APN: 0239- 161-28)
REQUEST:

A request for the Planning Commission to recommend approval to the City Council for:

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File #: 21-1505 Agenda Date: 7/5/2022
Agenda #: PH-C Category: Public Hearing
1) General Plan Amendment No. 21-001 - A request to amend the General Plan Land Use Designation for the subject site from General Commercial (C-G) to Light Industrial (I-L). 2) Zoning Code Amendment No. 20-002 - A request to amend the Zoning Map from General Commercial (C-2) to Light Industrial (M-1)
3) Design Review No. 21-014 - A request for site and architectural review of a 102,330 square foot industrial commerce building.
4) Development Agreement No. 22-001 - An agreement for the payment of a public benefit fee.

PROJECT PLANNER:

Cecily Session-Goins, Associate Planner
BACKGROUND INFORMATION:

A. Existing Land Use Designation:

Project Site
B. Environmental Review Finding:

An Initial Study (IS), Mitigated Negative Declaration, and Mitigation Monitoring and Reporting Program has been prepared for this project pursuant to the California Environmental Quality Act (CEQA) and the 2019 Local Guidelines for Implementing CEQA. Based on the information in the IS, the project could not have a significant effect on the environment as a result of project implementation and the Mitigated Negative Declaration, and Mitigation Monitoring and Reporting Program. The Mitigated Negative Declaration, and Mitigation Monitoring and Reporting Program can be found at <https://www.fontana.org/2137/Environmental-Documents>.

PROJECT DESCRIPTION:

A. Background Information: The proposed project consists of the construction of a industrial commerce building of approximately 102,330 square feet on an approximately 4.49 acre site.

The project includes a General Plan Amendment from General Commercial (C-G) to Light Industrial (I-L) and a Zoning Code Amendment from General Commercial (C-2) to Light Industrial (M-1).

B. Project Site Area: Approximately 4.49 acres
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File #: 21-1505 Agenda Date: 7/5/2022
Agenda #: PH-C Category: Public Hearing
The project site is vacant and undeveloped.

C. Building/Unit Analysis - Industrial Commerce Building Site:

ANALYSIS:

The applicant is requesting that the Planning Commission review and forward a recommendation of approval to the City Council for the proposed project that includes a general plan amendment and a zone change to facilitate the construction of a 102,330 industrial commerce building on a

4.49-acre site. The applicant has also applied for a design review, which is required for industrial buildings greater than 50,000 square feet in size.

General Plan Amendment No. 21-001 and Zone Change No. 21-002 The current general plan and zoning land use designations of General Commercial (C-G and C-1) do not allow for industrial commerce center uses. Therefore, the applicant has applied for a General Plan Amendment to amend the general plan land use designation of the project site to Light Industrial (I-L) and a Zone Change to change the Zoning District Map designation to Light Industrial (M-1).

Design Review No. 21-014
The industrial commerce building has been designed with office space totaling approximately 10,000 square feet. A gate-secured truck court with 11 loading docks are proposed on the south side of the building. The use of glazing, parapets, canopies, accent colors and painted banding will add structural and visual interest to the building. Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from two driveways, one on Sierra Avenue and the other at the termination of Summit Avenue. Proposed landscaping would be ornamental in nature and would features trees, shrubs, and drought-tolerant accent plants in addition to a variety of groundcovers.

The project site is physically suitable in size and shape to support the development of the proposed industrial commerce building. The applicable building codes, zoning codes, and fire codes and standards, will make for a safe, attractive, and well-designed project. As proposed, the project is consistent with the standards of the Zoning and Development Code. It also meets all requirements of the Sustainability Ordinance, which regulates air and environmental quality. The proposal has been designed to be compatible with the industrial uses to the north and south of the site, while also providing a development that has been designed with features (architectural relief, added landscaping, street improvements, and lighting), to enhance the character of the area.

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File #: 21-1505 Agenda Date: 7/5/2022
Agenda #: PH-C Category: Public Hearing
Development Agreement No. 22-001
The project includes an application for a development agreement, which includes the payment of a public benefit fee of $434,903.

MOTION:

Approve staff’s recommendation.

ATTACHMENTS:

1. Vicinity Map

2. Project Plans

3. Exhibit for General Plan Amendment and Zone Change

4. Planning Commission Resolution, Findings, and Conditions of Approval

5. Notice of Intent to Adopt a Mitigated Negative Declaration and Public Hearing Notice

6. Development Agreement
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ATTACHMENT NO. 1

VICINITY MAP
DATE: July 5, 2022
CASE: Master Case No. 21-040
General Plan Amendment No. 21-001
Zone Change No. 21-002
Design Review No. 21-014
Development Agreement No. 22-001

CITY OF FONTANA PLANNING

DEPARTMENT
Subject Site
NORTH
338 710
Project: Consultants: Project Number: Revision: Date: Drawn by: Title: Sheet: 1633 GLENNWOOD AVE. UPLAND, CA 91784THIENES 20330 CR 01/01/22 HUNTER C I V I L STRUCTURAL MECHANICAL PLUMBING ELECTRICAL LANDSCAPE SOILS ENGINEER FIRE PROTECTION fax: 949 863 0851 tel: 949 863 1770 email: [email protected] 92612 irvine, ca 18831 bardeen avenue - ste. #100 hpa, inc. ----- FONTANA, CA 92336 - AND SUMMIT AVE INTERSECTION OF SIERRA AVE. MA G N N O Y L I C E N S E D A R C H I T E C TS T A T E O F C A L I F O R N I A DATE RENEWAL 3-31-21 C-29451 SKG PACIFIC ENTERPRISES INC. OVERALL SITE PLAN DAB-A1.1 VICINITY MAP PROJECT DATA SITE APPLICANT ADDRESS OF THE PROPERTY ASSESSOR'S PARCEL NUMBER OWNER APPLICANT'S REPRESENTATIVE ZONING ATTACHMENT NO. 2 339 711
Project: Consultants: Project Number: Revision: Date: Drawn by: Title: Sheet: 1633 GLENNWOOD AVE. UPLAND, CA 91784THIENES 20330 CR 01/01/22 HUNTER C I V I L STRUCTURAL MECHANICAL PLUMBING ELECTRICAL LANDSCAPE SOILS ENGINEER FIRE PROTECTION fax: 949 863 0851 tel: 949 863 1770 email: [email protected] 92612 irvine, ca 18831 bardeen avenue - ste. #100 hpa, inc. ----- FONTANA, CA 92336 - AND SUMMIT AVE INTERSECTION OF SIERRA AVE. MA G N N O Y L I C E N S E D A R C H I T E C TS T A T E O F C A L I F O R N I A DATE RENEWAL 3-31-21 C-29451 SKG PACIFIC ENTERPRISES INC. OVERALL FLOOR PLAN DAB-A2.1 340 712
ELEVATIONS DAB-A3.1 Project: Consultants: Project Number: Revision: Date: Drawn by: Title: Sheet: 1633 GLENNWOOD AVE. UPLAND, CA 91784THIENES 20330 CR 01/01/22 HUNTER C I V I L STRUCTURAL MECHANICAL PLUMBING ELECTRICAL LANDSCAPE SOILS ENGINEER FIRE PROTECTION fax: 949 863 0851 tel: 949 863 1770 email: [email protected] 92612 irvine, ca 18831 bardeen avenue - ste. #100 hpa, inc. ----- FONTANA, CA 92336 - AND SUMMIT AVE INTERSECTION OF SIERRA AVE. MA G N N O Y L I C E N S E D A R C H I T E C TS T A T E O F C A L I F O R N I A DATE RENEWAL 3-31-21 C-29451 SKG PACIFIC ENTERPRISES INC. 341 713
Project: Consultants: Project Number: Revision: Date: Drawn by: Title: Sheet: 1633 GLENNWOOD AVE. UPLAND, CA 91784THIENES 20330 CR 01/01/22 HUNTER C I V I L STRUCTURAL MECHANICAL PLUMBING ELECTRICAL LANDSCAPE SOILS ENGINEER FIRE PROTECTION fax: 949 863 0851 tel: 949 863 1770 email: [email protected] 92612 irvine, ca 18831 bardeen avenue - ste. #100 hpa, inc. ----- FONTANA, CA 92336 - AND SUMMIT AVE INTERSECTION OF SIERRA AVE. MA G N N O Y L I C E N S E D A R C H I T E C TS T A T E O F C A L I F O R N I A DATE RENEWAL 3-31-21 C-29451 SKG PACIFIC ENTERPRISES INC. SECTION DAB-A4.1 342 714
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ATTACHMENT NO. 3
sdf

GENERAL PLAN

AND ZONING
DATE: July 5, 2022
CASE: Master Case No. 21-040
General Plan Amendment No. 21-001
Zone Change No. 21-002
Design Review No. 21-014
Development Agreement No. 22-001

EXISTING GENERAL PLAN AND ZONING DESIGNATIONS
GENERAL COMMERCIAL (C-G/C-2)

PROPOSED GENERAL PLAN AND ZONING DESIGNATIONS
LIGHT INDUSTRIAL (I-L/M-1)

CITY OF FONTANA PLANNING

DEPARTMENT
I-L/M-1

PROJECT SITE

PROJECT SITE
C-G/C-2
347 719
ATTACHMENT NO. 4
RESOLUTION PC NO. 2022-___

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

FONTANA RECOMMENDING TO THE CITY COUNCIL ADOPTION OF

A RESOLUTION ADOPTING THE MITIGATED NEGATIVE

DECLARATION AND MITIGATION MONITORING REPORTING

PROGRAM AND DIRECT STAFF TO FILE THE NOTICE OF
DETERMINATION; ADOPTION OF A RESOLUTION APPROVING
GENERAL PLAN AMENDMENT NO. 21-001, ADOPTION OF AN
ORDINANCE APPROVING ZONE CHANGE NO. 21-002, ADOPTION

OF AN ORDINANCE APPROVING DEVELOPMENT AGREEMENT
NO. 22-001 AND ADOPTION OF A RESOLUTION APPROVING
DESIGN REVIEW NO. 21-014 FOR THE CONSTRUCTION OF A
102,330 SQUARE FOOT INDUSTRIAL COMMERCE CENTER OF A

4.49 ACRE SITE.

WHEREAS, the City of Fontana received applications for the proposed project which includes General Plan Amendment No. 21-001, Zoning Code Amendment No. 21-002, Design Review No. 21-014 and Development Agreement No. 22-001.

Project Applicant: Ray Allard
Allard Engineering
16866 Seville Avenue
Fontana, CA 92335

Project Location: The project site is located on the northeast corner of Sierra Avenue and Summit Avenue (APN: 1118-041-06)
Project Site Area: 4.49 adjusted gross acres
WHEREAS, on July 5, 2022, the Planning Commission received a staff report and all the information, evidence, and public testimony and considered General Plan Amendment No. 21-001, Zoning Code Amendment No. 21-002, Design Review No. 21-014 and Development Agreement No. 22-001; and,
WHEREAS, the City of Fontana wishes to protect and preserve the quality of the life throughout the City, through effective land use and planning; and, WHEREAS, the subject site was annexed into the City of Fontana on October 8, 1981 (ANNEX 102); and,
WHEREAS, pursuant to Section No. 15070 California Environmental Act (CEQA), and pursuant Section No. 6.04 of the 2019 Local Guidelines for Implementing CEQA, an Initial Study/Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program were prepared in June 2022, and concluded that no significant impacts would be caused by the project, therefore, a Notice of Determination was prepared for the project; and,
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WHEREAS, Conditions of Approval have been prepared and are attached hereto as Exhibit “A” for Design Review No. 21-014; and, WHEREAS, the owners of property within 660 feet of the proposed project site were notified via public hearing notice mailer prior to the Public Hearing; and a notice of the public hearing was published in the Fontana Herald newspaper on June 10, 2022, at City Hall and at the project site; and,
WHEREAS, the Commission carefully considered all information pertaining to the proposed project, including the staff report, findings, and all the information, evidence, and testimony presented at its public hearing on July 5, 2022; and, WHEREAS, General Plan Amendment No. 21-001, Zoning Change No. 21-002, Design Review No. 21-014 and Development Agreement No. 22-001 are supported by goals and policies of the General Plan; and
WHEREAS, all other legal prerequisites to the adoption of this resolution have occurred.

NOW, THEREFORE, the Planning Commission RESOLVES as follows:

Section 1. Recitals. The above recitals are incorporated herein by reference.

Section 2. The City of Fontana Planning Commission hereby makes the following findings for General Plan Amendment No. 21-001 in accordance with Section 30-31 “Purpose” of the Fontana Zoning and Development Code:

Finding: The purpose and intent is to keep an updated General Plan to reflect the current desires and needs of the citizens for the long-term growth of the City.

Section 3. The City of Fontana Planning Commission hereby makes the following findings for Zone Change No. 21-002 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:

Page 3 of 15 ends

generally accepted planning principles, surrounding land uses, and the General Plan.

Findings of Fact: The applicant is proposing to change the zoning designation from General Commercial (C-2) to Light Industrial (M-1). This would allow for the construction of a 102,330 square foot industrial commerce building. This development will assist with growing industrial commerce demand in the City of Fontana and the surrounding area. The proposed zone change will provide consistency with the zoning and existing development to the north and south of the subject site and will provide safe and attractive development.

Section 4. The City of Fontana Planning Commission hereby makes the following findings for a Design Review No. 21-014 in accordance with Section 30-111 of the Fontana Zoning and Development Code:

Finding No. 1: This proposal meets or exceeds the criteria contained in Division 2 of the Zoning and Development Code and will
result in an appropriate and desirable development.

Findings of Fact: The project, as proposed, is a request for the Planning Commission to review and forward recommendation of approval for the site and architectural design for the proposed 102,330 square foot industrial commerce center. The industrial commerce facility has been designed with office totaling approximately 10,000 square feet. A gate-secured truck court with 11 loading docks are proposed on the south side of the building. The use of glazing, parapets, canopies, accent colors and painted banding will add structural and visual interest to the building. Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from two driveways one on Sierra Avenue and the other at the termination of Summit Avenue. Proposed landscaping would be ornamental in nature and would features trees, shrubs, and drought-tolerant accent plants in addition to a variety of groundcovers.

Finding No. 2: The proposal is in its design and appearance is aesthetically and architecturally pleasing while enhancing the character of the surrounding neighborhood.

Findings of Fact: The proposed industrial commerce facility has been designed with the use of glazing, parapets, canopies, accent colors and painted 350 722
Resolution PC No. 2021-____

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banding will add structural and visual interest to the building.

Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from two driveways one on Sierra Avenue and the other at the termination of Summit Avenue. Proposed landscaping would be ornamental in nature and would features trees, shrubs, and drought-tolerant accent plants in addition to a variety of groundcovers. The proposed building will be compatible with the industrial commerce centers north and south of the site and will provide a quality, aesthetically please development for the surrounding neighborhood.

Finding No. 3: The site improvements are appropriate and will result in a safe, well designed facility.

Finding No. 4: The proposal is consistent with the General Plan and applicable Specific Plan.

Finding No. 5: The proposal promotes the public health, safety, and welfare of the community.

Section 5. The Planning Commission has reviewed and considered the Initial Study, Mitigated Negative Declaration, and Mitigation Monitoring and Reporting Program, any oral or written comments received, and the administrative record prior to making any decision on the proposed project. The Planning Commission finds that the Initial Study/Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program contain a complete and accurate reporting of all the environmental impacts 351 723
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associated with the Project. The Planning Commission further finds that the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program have been completed in compliance with the 2019 Local CEQA Guidelines and the State CEQA Guidelines.

Section 6. Based on the foregoing, the City of Fontana Planning Commission recommends that the City Council adopts a resolution adopting the Initial Study/Mitigated Negative Declaration and Mitigation Monitoring Reporting Program and direct staff to file the Notice of Determination and adopt a resolution approving General Plan Amendment No. 21-001, adopt an ordinance approving Zoning Code Amendment No. 21-002, adopt an ordinance approved Development Agreement No. 22-001 and adopt a resolution approving Design Review No. 20-014, subject to the findings as indicated herein and the Conditions of Approval, have been prepared and are attached hereto as Exhibit “A”.

Section 7. Resolution Regarding Custodian of Record: The documents and materials that constitute the record of proceedings on which this Resolution has been based are located at the Planning Department, 8353 Sierra Avenue, Fontana, CA 92335. This information is provided in compliance with Public Resources Code section 21081.6.

Section 8. The Secretary of the Planning Commission shall certify to the adoption of this Resolution.

APPROVED AND ADOPTED by the Planning Commission of the City of Fontana, California, at a regular meeting held on this 5 th day of July, 2022.

City of Fontana
___________________________
Cathline Fort, Chairperson
ATTEST:

I, Idilio Sanchez, Secretary of the Planning Commission of the City of Fontana, California, do hereby certify that the foregoing resolution was duly and regularly adopted by the Planning Commission at a regular meeting thereof, held on this 5 th day
of July 2022, by the following vote, to-wit:

AYES:

NOES:

ABSENT:
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Resolution PC No. 2021-____

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ABSTAIN:
___________________________
Idilio Sanchez, Secretary
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EXHIBIT “A”

CITY OF FONTANA

CONDITIONS OF APPROVAL
PROJECT: Master Case No. (MCN) 21-040 DATE: July 5, 2022 Design Review (DRP) No. 21-014
LOCATION: The project site is located on the northeast corner of Sierra Avenue and Summit Avenue (APN: 1118-041-06)
PLANNING DEPARTMENT:

1. This Design Review shall become null and void two (2) years from the date of approval, unless the appropriate permits have been obtained and construction, defined as permit obtainment, commencement of construction of the primary building on site, and successful completion of the first Building and Safety Department inspection, has commenced within this period.

Except as required under applicable State and Federal law, the City of Fontana and the applicant acknowledge that the City would not have approved this project if the City were to be liable to applicant in damages under or with respect to all or any part of this application or this condition of approval. Accordingly, applicant shall not sue the City for damages or monetary relief for any matter arising from or related 354 726
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to this condition of approval. Applicant’s sole and exclusive remedy shall be limited to declaratory/injunctive relief, mandate, and/or specific performance.

3. This project shall comply with all applicable provisions, regulations and development standards of the Fontana Zoning and Development Code.

4. A Register of Professional Archaeologists (RPA)-qualified archeologist experienced with Native American artifact identification and approved by the City of Fontana shall be present to monitor the first two (2) days of site preparation/ grubbing; the first two (2) days of mass grading; and the first two (2) days of utility trenching. Such monitoring activities may be reduced or terminated depending on the findings and recommendations of the archeologist. In the event that prehistoric or historic cultural resources be uncovered during these activities, representatives of the tribal entity(s) whom consider the project site to be within their traditional use area shall be contacted and invited to the site to review the find, and monitoring shall be continued at the discretion of archeologist.

5. Historic Archaeological Resources
A. Upon discovery of any tribal cultural or archaeological resources, cease construction activities in the immediate vicinity of the find until the find can be assessed. All tribal cultural and archaeological resources unearthed by project construction activities shall be evaluated by the qualified archaeologist and tribal monitor/consultant. If the resources are Native American in origin, interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place.

C. Archaeological and Native American monitoring and excavation during construction projects shall be consistent with current professional standards.

All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken. Principal personnel shall meet the Secretary of the Interior standards for archaeology and have a minimum of 10 years’ experience as a principal investigator working with Native American archaeological sites in southern California. The Qualified Archaeologist shall ensure that all other personnel are appropriately trained and qualified. 355 727
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6. The construction contractor shall use the following source controls at all times:

A. Construction shall be limited to 7:00 am to 6:00 pm on weekday, 8:00 am to 5:00 pm on Saturdays, and no construction on Sundays and holidays unless it is approved by the Building Inspector for cases that are considered urgently necessary as defined in Section No. 18-63(7) of the Municipal Code. For all noise-producing equipment, use types and models that have the lowest horsepower and the lowest noise generating potential practical for their intended use.

B. The construction contractor will ensure that all construction equipment, fixed or mobile, is properly operating (tuned-up) and lubricated, and that mufflers are working adequately.

C. Have only necessary equipment onsite.

E. Install portable noise barriers, including solid structures and noise blankets, between the active noise sources and the nearest noise receivers.

F. Temporarily enclose localized and stationary noise sources.

G. Store and maintain equipment, building materials, and waste materials as far as practical from as many sensitive receivers as practical.

7. Any foam treatment used for architecture treatments and/or projections located on the first floor shall be covered with concrete or similar durable material a minimum of ¼ inch thick, or as determined by the Director of Planning.

8. All Conditions of Approval contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions, signed by the property owner or legal representative, shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits.

9. The current development fees must be paid prior to issuance of building/construction permits.

10.In the event that one or more of the Conditions of Approval for this project needs to be amended and/or deleted due to health, safety or welfare concerns, the City Manager is authorized to approve or conditionally approve such amendment/deletion, provided that City Manager shall bring such proposed amendment/deletion to the City Council at the next available meeting for City Council ratification, but in no event later than sixty (60) days following the City Manager’s decision. The noticing of such City Council meeting for possible ratification shall be pursuant to Sections No. 30-30 and Sections No. 30-31 of the Municipal Code.

11.There shall be five (5) feet of landscaping and two (2) feet of decorative concrete for passengers to step out of vehicles, total of seven (7) feet, at end of automobile parking aisles.
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12.The applicant shall meet all guidelines identified in the Industrial Commerce Sustainability Ordinance (Ordinance No. 1891).

13.????
ENGINEERING LAND DEVELOPMENT:

14.The project shall be served by the City’s sanitary sewer system, all sewer facilities shall be constructed in accordance with the City Standards. Main trunk sewer line shall be in accordance with master sanitary sewer plan or as approved by the City Engineer.

15.The applicant shall obtain design and plan approval from all utility providers having jurisdiction over the on-site and off-site utilities. Completion of all undergrounding of on-site and off-site utilities is required by Section 27-52 of the City Municipal Code and in accordance with plans and specifications approved by the City Engineer.

16.It is the Applicant’s responsibility to maintain all improvements and utilities within the public right-of-way, including street sweeping, prior to final acceptance by the City. Where applicable, the applicant must provide provisional street sweeping schedules to the City.

PRIOR TO ISSUANCE OF GRADING PERMIT

17.Applicant shall submit and gain approval of a complete WQMP Report in accordance with the County of San Bernardino Technical Guidance Document and latest template.

PRIOR TO MAP RECORDATION

18.A Security to guarantee the proper setting of all survey monuments within the project limits, and replacement of any existing survey monuments damaged or removed during construction; will be collected during the bond and agreement process. Survey monuments shall be placed as required by plans and corner records must be recorded with the County.

PRIOR TO ISSUANCE OF CONSTRUCTION PERMITS

19.Record tract map (for condominium purposes) required for the development.

20.Applicant shall provide a Subdivision Improvement Agreement with accompanying security.

PRIOR TO CERTIFICATE OF OCCUPANCEY

21.Traffic signal modification at the South Highland Avenue driveway entry must be complete and fully functional.

PRIOR TO FINAL ACCEPTANCE OF PROJECT

22.Applicant/Design Engineer to provide the City of Fontana with As-Built/Record Drawings for all public improvement plans.

23.Applicant/Landscape Architect shall provide a “Landscape Certificate of Compliance” certifying that the work has been designed, installed, and will be maintained in accordance with the City of Fontana’s Model Water Efficiency Landscape Ordinance (Ordinance 1743, FCC Section 28).
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24.All underground utilities (sewer and storm drain) shall be video inspected by applicant/contractor. Sewer video shall include clean-out connection, clean-out to lateral segment, lateral, and main line. Videos to be inspected and approved by City Inspection. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff. If removal and replacement of any utility is required, a subsequent video of the repair will be required.

25.Applicant/Engineer of Record shall submit a conforming copy of the recorded Memorandum of Agreement for the Water Quality Management Plan and Storm Water BMP Transfer. The Access, Maintenance, and the WQMP Certification for BMP Completion must be submitted to the City Project Engineer.

BUILDING & SAFETY:

26. The applicant shall install an automatic fire suppression system, which is required in all new construction per FMC Chapter 11 Article II. Design and type of system shall be based upon the requirements of the Building Code, Fire Code and the requirements of the Fontana Fire Prevention District.

27. The applicant shall comply with the requirements of the South Coast Air Quality Management District (909-396-2000). SCAQMD requirements shall be satisfied prior to the issuance of any permit if hazardous materials are stored and/or used.

28. The applicant shall verify that any temporary building, trailer, commercial coach, etc. installed and/or used in connection with a construction project complies with FMC Chapter 5 Article XIV.

29. The applicant shall verify that all perimeter/boundary walls are designed and constructed so that the outer/exterior face of the wall is as close as possible to the lot line. In any case, the outer/exterior face of the wall shall be within two (2) inches of the lot line. Distances greater than two (2) inches may be approved prior to construction by the Building Official on a case by case basis for extenuating circumstances.

30. The applicant shall comply with the following grading requirements:

A. Grading plans shall be submitted to and approved by Building & Safety. The grading plans shall indicate all site improvements and shall indicate complete drainage paths of all drainage water run-offs.

B. All drainage water shall drain via approved methods to an approved location, such as a public street, a public drainage system, etc.

C. Drainage water shall not cross over a public sidewalk. Drainage water may, however, cross under a sidewalk if an approved drainage structure is used.

D. A recorded drainage acceptance agreement is required from adjoining property(s) receiving flows from this property.

E. No water course or natural drainage shall be obstructed.

F. Minimum slope or grade for ALL drainage structures shall be one half (0.50) percent for concrete and one (1.0) percent for all other, or as 358 730
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otherwise approved by the Building Official.

The on-site drainage system shall, as a minimum, be designed to handle the run-off generated by a ten (10) year storm. Check for flooding of all on-site structures (buildings) and all adjacent properties during a hundred (100) year storm.

I. The grading plans shall, as a minimum, contain sections at all lot lines and/or permit boundary lines. These sections shall clearly indicate:

1. The relationship between the proposed finished on-site grade elevations and the existing adjacent property grade elevations (Indicate any additional drainage water that may come from an adjacent property.); and

2. The ground cover/finished surface material being proposed (e.g., type of pavement, plant material, etc.); and

3. All proposed drainage structures; and

4. Any proposed and/or required walls or fencing.

31. The applicant shall verify that all exterior lighting shall be oriented, directed, and/or shielded as much as possible so that direct illumination does not infringe onto adjoining properties.

PRIOR TO ISSUANCE OF BUILDING/CONSTRUCTION PERMITS

32. The following items (as applicable) shall be completed by the applicant and submitted to Building & Safety prior to the issuance of building permits for this project:

A. Precise grading plans shall be approved
B. Rough grading completed
C. Compaction certification
D. Pad elevation certification
E. Rough grade inspection signed off by a City Building Inspector

33. If hazardous substances are used and/or stored, the applicant shall provide a technical opinion and report, identifying and developing methods of protection from the hazards presented by the hazardous materials, may be required. This report shall be prepared by a qualified person, firm, or corporation and submitted to Building & Safety. This report shall also explain the proposed facility's intended methods of operation and list all of the proposed materials, their 359 731
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quantities, classifications, and the effects of any chemical (material) inter-mixing in the event of an accident or spill.

SAN BERNARDINO COUNTY FIRE DEPARTMENT:

34. Jurisdiction. The above referenced project is under the jurisdiction of the Fontana fire Protection District (herein “Fire Department”). Prior to any construction occurring on any parcel, the applicant shall contact the Fire Department for verification of current fire protection requirements. All new construction shall comply with the current California Fire Code requirements and all applicable statutes, codes, ordinances, and standards of the Fire Department.

35. Fire Access Road Width. Prior to map recordation, all fire access roadways shall be designed to meet the requirements for this development and shall be approved by the Fire Department. All buildings shall have access provided by approved roads, alleys and private drives with a minimum twenty-six (26) foot unobstructed width and vertically to fourteen (14) feet six (6) inches in height.

Buildings three (3) stories in height or more shall have a minimum access of thirty (30) feet unobstructed width and vertically to fourteen (14) feet six (6) inches in height. California Fire Code sec 503, SBCFD Standard 503.1

36. Turnaround. An approved turnaround shall be provided at the end of each roadway one hundred and fifty (150) feet or more in length. Cul-de-sac length shall not exceed six hundred (600) feet; all roadways shall not exceed a 12 % grade and have a minimum of nineteen (19) foot inside radius and a forty-five (45) foot outside radius for all turns. California Fire Code sec 503, SBCFD Standard 503.1

37. Street Signs. Approved temporary or permanent street signs shall be installed throughout the project prior any combustible materials being placed on the construction site. California Fire Code sec. 505, SBCFD Standard 505.1

38. Fire Lanes. The applicant shall submit a site plan to the Fire Department for review and approval of all proposed signage and striping for all fire access roadways. All curbs adjacent to fire lanes shall be painted red and “No Parking, Fire Lane” signs shall be installed on public and private roads in accordance with approved standards. SBCFD Standard 501.

39. Water System Commercial. Prior to map recordation, all water supply systems shall be designed to meet the required fire flow for this development and shall be approved by the Fire Department. The required fire flow shall be determined by using Appendix B of the California Fire Code. A minimum of one new six (6) inch fire hydrant assembly with two (2) two and one half (2 1/2) inch and one (1) four (4) inch outlet shall be provided. All fire hydrants shall be spaced no more than three hundred (300) feet apart as measured along vehicular travel-ways. California Fire Code sec 508, SBCFD Standard 508.1

40. The Fire Flow for this project shall be: 3375 GPM for a 2 hour duration at 20 psi residual operating pressure. Fire Flow is based on a 102,330 sq.ft. structure. 360 732
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41. Hydrant Marking. Blue reflective pavement markers indicating fire hydrant locations shall be installed as specified by the Fire Department. SBCFD Standard 508.5.2.

42. Water System Certification. The applicant shall provide the Fire Department with a letter from the serving water company, certifying that the required water improvements have been made or that the existing fire hydrants and water system will meet distance and fire flow requirements. Fire flow water supply shall be in place prior to placing combustible materials on the jobsite.

43. Combustible Protection. Prior to combustibles being placed on the project site an approved paved roadway providing fire access and fire hydrants providing an acceptable fire flow shall be installed. California Fire Code sec 508, SBCFD Standard 508.1

44. Fire Sprinkler-NFPA #13. An automatic fire sprinkler system complying with NFPA 13 and Fire Department standards is required. A fire sprinkler contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The plans shall include hydraulic calculations and manufacturer specification sheets. The required fees shall be paid at the time of plan submittal. SBCFD Standard 903.

45. Fire Alarm, Waterflow Monitoring. A water flow monitoring fire alarm system complying with the California Fire Code, NFPA and all applicable codes is required or fire sprinkler systems with twenty (20) sprinkler heads or more. A fire alarm contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal. California Fire Code sec. 907, SBCFD Standard 907 FA-M.

46. Fire Extinguishers. Hand portable fire extinguishers are required. The location, type, and cabinet design shall be approved by the Fire Department.

California Fire Code sec. 906.

47. Commercial (large facility) Addressing. Commercial and industrial developments in excess of 100,000 sq. ft. shall have the street address installed on the building with numbers that are a minimum twelve (12) inches in height and with a one and one half (1 ½) inch stroke. The street address shall be visible from the street. During the hours of darkness, the numbers shall be electrically illuminated (internal or external). Where the building is two hundred (200) feet or more from the roadway, additional non-illuminated contrasting six (6) inch numbers shall be displayed at the property access entrances. SBCFD Standard 901.4.4

48. Key Box. An approved Fire Department key box is required. The key box shall be provided with a tamper switch and shall be monitored by a Fire Department approved central monitoring service. SBCFD Standard 506 361 733
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49. Security Gates. In commercial, industrial and multi-family complexes, all swing gates shall have an approved fire department Knox Lock. Where an automatic electric security gate is used, an approved Fire Department override switch is required. SBCFD Standard 503.1.2

50. Material Identification Placards. The applicant shall install, in all locations deemed appropriate by the Fire Department, approved material identification placards on the outside of all buildings and/or storage tanks that store hazardous or flammable materials. Additional placards shall be required inside the buildings when chemicals are segregated into separate areas. Standard 2703.5.

51. High-Piled Storage. The applicant shall submit an application for a High-Piled Storage permit for storage of over 12’ in height of Class I-IV commodities and/or over 6’ in height of high hazard commodities. Three (3) sets of detailed plans and a commodity analysis report shall be submitted to the Fire Department for review and approval. The applicant shall submit to the Fire Department concurrently with any racking permits to the Building and Safety Department.

SBCFD Standard 2301.

52. Secondary Access. The development shall have a minimum of 2 points of vehicular access during each phase of construction for fire and emergency access purposes and for evacuation routes. SBCFD Standard 503.1

END OF CONDITIONS OF APPROVAL
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ATTACHMENT NO. 5

NOTICE OF INTENT TO ADOPT A MITIGATED NEGATIVE

DECLARATION AND NOTICE OF PUBLIC HEARING
SI DESEA INFORMACION EN ESPAÑOL REFERENTE A ESTA NOTIFICACION O PROYECTO, FAVOR DE COMUNICARSE AL (909) 350-6728.

In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons with a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE PLANNING COMMISSION OF THE CITY OF FONTANA FOR THE FOLLOWING:

MASTER CASE NO. 21-040, GENERAL PLAN AMENDMENT NO. 21-001, ZONING CODE AMENDMENT NO. 21-002, AND DESIGN REVIEW NO. 21-014.

The applicant, Allard Engineering, is proposing the development of a 102,380-square-foot industrial commerce center located on 4.49 gross acres. The proposed building would include a 5,000-square-foot office, a 5,000-square-foot office mezzanine and 92,380 square feet of warehouse space. The project includes a General Plan Amendment to change the General Plan land use designation from General Commercial (C-G) to Light Industrial (I-L) and a Zoning Code Amendment to change the land use designation from General Commercial (C-2) to Light Industrial (M-1).

Environmental
Determination:

A Mitigated Negative Declaration (MND) has been prepared pursuant to Section 15070 of the California Environmental Quality Act and per Section 6.04 of the City of Fontana 2019 Local Guidelines for Implementing the California Environmental Quality Act.

Location: Northeast corner of Sierra Avenue and
Summit Avenue (APN No. 0239-161-28).

Date of Hearing: July 5, 2022
Place of Hearing: City Hall Council Chambers
8353 Sierra Avenue
Fontana, CA 92335
Time of Hearing: 6:00 P.M.

Should you have any questions concerning this project, please contact Cecily Session-Goins, Associate Planner, at (909) 350-6723 or [email protected].
363 735
ATTACHMENT NO. 5
The period for comment regarding the mitigated negative declaration for this project is from June 15, 2022, to July 5, 2022. The initial study and proposed mitigated negative declaration are available for review at City Hall (8353 Sierra Avenue Fontana, CA 92335) and online at https://www.fontana.org/2137/Environmental-Documents. Please submit your comments via email to Cecily Session-Goins at [email protected].

The project site is not listed as a hazardous waste site described in any lists as enumerated under Section 65962.5 of the Government Code.

ANY INTERESTED PARTY MAY APPEAR AND PRESENT ANY INFORMATION WHICH MAY BE OF ASSISTANCE TO THE PLANNING COMMISSION. A COPY OF THE APPLICATION AND ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION IN THE PLANNING DEPARTMENT, CITY HALL.

IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU MAY BE LIMITED TO RAISING

ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING. 364 736
ATTACHMENT NO. 6
Page No. 1 of 26
Recorded at request of: )
Clerk, City Council )
City of Fontana )
)
When recorded return to: )
City of Fontana )
8353 Sierra Avenue )
Fontana, CA 92335 )
Attention: City Clerk )
)
Exempt from Filing Fees, Government Code Section 6103
DEVELOPMENT AGREEMENT NO. 22-001

A DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation
(“City”)
and
Zecharia Hovav and Malca Hovav
(“Owner”)
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DEVELOPMENT AGREEMENT NO. 22-001
This Development Agreement (hereinafter “Agreement”) is entered into effective on the date it is recorded with the San Bernardino County Recorder (hereinafter the “Effective Date”) by and among the City of Fontana, a California municipal corporation (hereinafter, “CITY”), and Zecharia Hovav and Malca Hovav, [individuals / a married couple] (hereinafter, collectively “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement with respect to that certain real property located at the northeast corner of Sierra Avenue and Summit Avenue (APN: 239-161-28), as more particularly described on Exhibit “A” and shown on Exhibit “B” to this Agreement (the “Property”), and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development Approvals described in this Agreement, the City Council of the City of Fontana reviewed and considered the Initial Study and Mitigated Negative Declaration and made findings concerning the mitigation measures and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and
WHEREAS, DEVELOPER has filed an application for, and the City Council has approved, General Plan Amendment (GPA) No. 21-001, Zoning Code Amendment (ZCA) No. 21-002, and Design Review Permit (DRP) No. 21-014.

WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

1. DEFINITIONS AND EXHIBITS.

1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “CITY” means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.

(a) conditional use permits and design review permits;
(b) General Plan and Zoning Code amendments;
(e) grading, encroachment and building permits.

1.1.7 “Development Impact Fee” a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park “in lieu” fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code).

1.1.8 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.9 “Effective Date” means the date the ordinance approving this Agreement becomes effective.

1.1.10 “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date.

1.1.11 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date.

1.1.12 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; 368 740
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(b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.13 “OWNER” means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property.

1.1.14 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.15 “Project” means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.

1.1.16 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.

1.1.18 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.

1.1.19 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

2. GENERAL PROVISIONS.

2.2 Ownership of Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the Property or a portion thereof. 369 741
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The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the “Term.”

2.4 Assignment.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the Property.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above.
(d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.4 shall cause, or otherwise affect, a release of OWNER from its duties and obligations under this Agreement.

Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A Certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid. 371 743
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2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.
(e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.

2.7 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:

If to CITY:
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City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600
Copy to:

Best, Best & Krieger, LLP
3500 Porsche Way, Suite 200
Ontario, CA 91764
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441
If to OWNER:

Zecharia and Malca Hovav
1633 Glenwood Ave.

Upland, CA 91784
Telephone: (909) 227-3368
Copy to:

Allard Engineering, Inc,
16866 Seville Ave.

3. DEVELOPMENT OF THE PROPERTY.

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4.

3.4 Phasing Plan. Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or, (c) Increase the maximum height and size of permitted buildings; or, 374 746
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(d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Processing fees and charges of every kind and nature imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations governing construction standards and specifications including, without limitation, the CITY’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code.
(d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes.
(e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement.
(f) Regulations which are not in conflict with the Development Plan.

Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property.

3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations 375 747
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which do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.8 Provision of Real Property Interests by CITY. In any instance where OWNER is required to construct any public improvement on land not owned by OWNER, OWNER shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements. In the event OWNER is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by OWNER and upon OWNER’S provision of adequate security for costs CITY may reasonably incur, CITY shall negotiate the purchase of the necessary real property interests to allow OWNER to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. OWNER shall pay all costs associated with such acquisition or condemnation proceedings. This section

3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees.

4.2.1 Amount and Components of Fee.

The amount of the public facilities and services mitigation fees may be periodically adjusted by City.

4.2.1 shall be paid prior to the re-issuance or extension of any building permit for which such fees have not previously been paid.
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4.2.3 Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.2.1 for the dedication of land, the construction of improvements or the payment of fees.

4.3 Public Benefit Fee. Within twelve (12) months of the issuance of the Certificate of Occupancy for the building, OWNER shall pay to the City a one-time public benefit fee totaling $434,903.

5. FINANCING OF PUBLIC IMPROVEMENTS.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic Review. The Planning Director shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by OWNER with the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the Planning Director, within 30 days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council.

6.2 Special Review. The City Council may order a special review of compliance with this Agreement at any time. The Planning Director shall conduct such special reviews.

(d) If the City Council makes a preliminary finding that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Council may modify or terminate this Agreement as provided in Section 6.4 and Section 6.5. Notice of default as provided under Section 74 of this Agreement shall be given to OWNER prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.

6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section

6.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and,
(c) Such other information as is reasonably necessary to inform OWNER of the nature of the proceeding.

6.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard. OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

7. DEFAULT AND REMEDIES.
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7.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 7.1 above. (b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun.

After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8. THIRD PARTY LITIGATION.

kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

8.6 Survival. The provisions of this Sections 8.1 through 8.6, inclusive, shall survive the termination of this Agreement.

9. MORTGAGEE PROTECTION.

Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner 382 754
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specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement. (c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY , the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

10. MISCELLANEOUS PROVISIONS.

10.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

10.6 Singular and Plural. As used herein, the singular of any word includes the plural.

10.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one OWNER, all obligations of such OWNERS under this Agreement shall be joint and several, and the default of any such OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a single lot which has been finally subdivided and sold to such OWNER as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

10.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element.

hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below.

OWNER
Zecharia and Malca Hovav
By: ________________________
Zecharia Hovav
By: ________________________
Malca Hovav
Dated: ______________________
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ACKNOWLEDGMENT
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 )
On before me, _____________________________________
(insert name and title of the officer)
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 _________________________________ (Seal)
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CITY:

CITY OF FONTANA, a California
municipal corporation
By:_________________________________
Acquanatta Warren, Mayor
Dated: __________________
By: ________________________________
Matt Ballantyne, City Manager
ATTEST:

By:_________________________________
Germaine McClellan Key, City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
____________________________________
City Attorney
389 761
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ACKNOWLEDGMENT
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 )
On before me, _____________________________________
(insert name and title of the officer)
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 _________________________________ (Seal)
390 762
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Exhibit “A”
The Land referred to herein below is situated in the City of Fontana, County of San Bernardino, State of California, and is described as follows:

THE SOUTH ONE-HALF OF THE WEST ONE-HALF OF THE SOUTH ONE-HALF OF THE SOUTHWEST QUARTER OF THE SOUTHWEST QUARTER OF SECTION 20, TOWNSHIP 1 NORTH, RANGE 5 WEST, SAN BERNARDINO BASE AND MERIDIAN,

IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO UNITED STATES GOVERNMENT SURVEY.

EXCEPTING THEREFROM THAT PORTION OF LAND CONVEYED TO THE CITY OF

FONTANA, A MUNICIPAL CORPORATION BY GRANT DEED RECORDED ON FEBRUARY 14, 2005 AS INSTRUMENT NO. 2005-0107426 OF OFFICIAL RECORDS.

APN: 1118-041-06
391 763
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Exhibit “B”
392 764
July 5, 2022
Via E-mail
Cathline Fort, Chair
Raj Sangha, Vice Chair
Idilio Sanchez, Secretary
Matthew Gordon, Commissioner
Ralph Thrasher, Commissioner
Planning Commission
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
[email protected]
Maria Torres
Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
[email protected]
Cecily Session-Goins, Associate Planner
Planning Department
City of Fontana
8353 Sierra Ave
Fontana, CA 92335
[email protected]
Planning Department
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
[email protected]
Re: Opposition Comment to the Initial Study and Mitigated Negative Declaration for the Summit Avenue Warehouse Project (Master Case No. 21-040; General Plan Amendment No. 21-001; Zoning Change No. 21-002; Design Review No. 21-014; and Development Agreement No. 22-00) (Agenda Item No. 21-1505) Dear Honorable Chair Fort, Vice Chair Sangha, Secretary Sanchez, Commissioner Gordon, Commissioner Thrasher, Ms. Session-Goins, and Ms. Torres:

I am writing on behalf of Supporters Alliance for Environmental Responsibility (“SAFER”) regarding the Initial Study and Mitigated Negative Declaration (“IS/MND”) prepared for the Summit Avenue Warehouse Project (Master Case No. 21-040; General Plan Amendment No. 21-001; Zoning Change No. 21-002; Design Review No. 21-014; and Development Agreement No. 22-00), including all actions related or referring to the proposed construction and operation of an approximately 102,380 square foot industrial commerce building, located on the northeast corner of Sierra Avenue and Summit Avenue (APN: 0239-161- 28) in the City of Fontana (“Project”).

After reviewing the IS/MND, we conclude the IS/MND fails as an informational document, and that there is a fair argument that the Project may have significant adverse 765
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environmental impacts. Therefore, we request that the City of Fontana (“City”) prepare an environmental impact report (“EIR”) for the Project pursuant to the California Environmental Quality Act (“CEQA”), Public Resources Code section 21000, et seq. Furthermore, as evidenced by the expert comments submitted by wildlife biologist Dr. Shawn Smallwood, Ph.D., an EIR, rather than an MND, must be prepared due to the Project’s significant biological resources impacts. Dr. Smallwood’s comment and curriculum vitae are attached as Exhibit A hereto and is incorporated herein by reference in its entirety. In addition, given the nature and size of the warehouse, the proposed Project is likely to have significant air quality, health risk, and energy impacts, requiring an EIR.

I. PROJECT DESCRIPTION
The City of Fontana Planning Commission, Planning Department, and City staff are considering a request to implement a series of discretionary actions that would ultimately allow for the development of the Summit Avenue Industrial Warehouse Project located at the northeast corner of Sierra Avenue and Summit Avenue in the City of Fontana in San Bernardino County, California.

The proposed project would construct a 102,380-square-foot warehouse facility, which would include 10,000 square feet of office space (5,000 square feet on the first floor and 5,000 square feet mezzanine and 92,380 square feet of warehouse space). The warehouse would have 11 dock doors, three trailer stalls, and 53 automobile parking stalls.

Based on the information contained in this staff report, City staff recommends that the Planning Commission adopt Resolution No. PC 2022-023, and forward a recommendation to the City Council to:
1) Adopt the Initial Study, Mitigated Negative Declaration and Mitigation Monitoring and reporting Program and direct staff to file a Notice of Determination; and
2) Adopt a resolution approving General Plan Amendment No. 21-001; and, 3) Adopt an ordinance approving Zone Change No. 21-002; and, 4) Adopt an ordinance approving Development Agreement No. 22-001; and, 5) Adopt a resolution approving Design Review No. 21-014, subject to the attached Findings and Conditions of Approval.

PC Regular Agenda, Resolution PC No. 2022-023 (July 5, 2022), pp. 4-5. 766
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II. LEGAL STANDARD
As the California Supreme Court has held, “[i]f no EIR has been prepared for a nonexempt project, but substantial evidence in the record supports a fair argument that the project may result in significant adverse impacts, the proper remedy is to order preparation of an EIR.” (Communities for a Better Env’t v. South Coast Air Quality Mgmt. Dist. (2010) 48 Cal.4th 310, 319-320 (CBE v. SCAQMD) (citing No Oil, Inc. v. City of Los Angeles (1974) 13 Cal.3d 68, 75, 88; Brentwood Assn. for No Drilling, Inc. v. City of Los Angeles (1982) 134 Cal.App.3d 491, 504–505).) “Significant environmental effect” is defined very broadly as “a substantial or potentially substantial adverse change in the environment.” (Pub. Res. Code (“PRC”) § 21068; see also 14 CCR § 15382.) An effect on the environment need not be “momentous” to meet the CEQA test for significance; it is enough that the impacts are “not trivial.” (No Oil, Inc., 13 Cal.3d at 83.) “The ‘foremost principle’ in interpreting CEQA is that the Legislature intended the act to be read so as to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” (Communities for a Better Env’t v. Cal. Res. Agency (2002) 103 Cal.App.4th 98, 109 (CBE v. CRA).)
The EIR is the very heart of CEQA. (Bakersfield Citizens for Local Control v. City of Bakersfield (2004) 124 Cal.App.4th 1184, 1214 (Bakersfield Citizens); Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, 927.) The EIR is an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” (Bakersfield Citizens, 124 Cal.App.4th at 1220.) The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” (Laurel Heights Improvements Assn. v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 392.) The EIR process “protects not only the environment but also informed self-government.” (Pocket Protectors, 124 Cal.App.4th at 927.) An EIR is required if “there is substantial evidence, in light of the whole record before the lead agency, that the project may have a significant effect on the environment.” (PRC § 21080(d); see also Pocket Protectors, 124 Cal.App.4th at 927.) In very limited circumstances, an agency may avoid preparing an EIR by issuing a negative declaration, a written statement briefly indicating that a project will have no significant impact thus requiring no EIR (14 CCR § 15371), only if there is not even a “fair argument” that the project will have a significant environmental effect. (PRC §§ 21100, 21064.) Since “[t]he adoption of a negative declaration . . . has a terminal effect on the environmental review process,” by allowing the agency “to dispense with the duty [to prepare an EIR],” negative declarations are allowed only in cases where “the proposed project will not affect the environment at all.” (Citizens of Lake Murray v. San Diego (1989) 129 Cal.App.3d 436, 440.)
Mitigation measures may not be construed as project design elements or features in an environmental document under CEQA. The MND must “separately identify and analyze the significance of the impacts … before proposing mitigation measures ….” (Lotus vs. Department of Transportation (2014) 223 Cal.App.4th 645, 658.) A “mitigation measure” is a measure 767
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designed to minimize a project’s significant environmental impacts, (PRC § 21002.1(a)), while a “project” is defined as including “the whole of an action, which has a potential for resulting in either a direct physical change in the environment, or a reasonably foreseeable indirect physical change in the environment.” (CEQA Guidelines § 15378(a).) Unlike mitigation measures, project elements are considered prior to making a significance determination. Measures are not technically “mitigation” under CEQA unless they are incorporated to avoid or minimize “significant” impacts. (PRC § 21100(b)(3).)
To ensure that the project’s potential environmental impacts are fully analyzed and disclosed, and that the adequacy of proposed mitigation measures is considered in depth, mitigation measures that are not included in the project’s design should not be treated as part of the project description. (Lotus, 223 Cal.App.4th at 654-55, 656 fn.8.) Mischaracterization of a mitigation measure as a project design element or feature is “significant,” and therefore amounts to a material error, “when it precludes or obfuscates required disclosure of the project’s environmental impacts and analysis of potential mitigation measures.” (Mission Bay Alliance v.

Office of Community Investment & Infrastructure (2016) 6 Cal.App.5th 160, 185.) Where an initial study shows that the project may have a significant effect on the environment, a mitigated negative declaration may be appropriate. However, a mitigated negative declaration is proper only if the project revisions would avoid or mitigate the potentially significant effects identified in the initial study “to a point where clearly no significant effect on the environment would occur, and…there is no substantial evidence in light of the whole record before the public agency that the project, as revised, may have a significant effect on the environment.” (PRC §§ 21064.5, 21080(c)(2); Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 331.) In that context, “may” means a reasonable possibility of a significant effect on the environment. (PRC §§ 21082.2(a), 21100, 21151(a); Pocket Protectors, 124 Cal.App.4th at 927; League for Protection of Oakland’s etc. Historic Res. v. City of Oakland (1997) 52 Cal.App.4th 896, 904–05.)
Under the “fair argument” standard, an EIR is required if any substantial evidence in the record indicates that a project may have an adverse environmental effect—even if contrary evidence exists to support the agency’s decision. (14 CCR § 15064(f)(1); Pocket Protectors, 124 Cal.App.4th at 931; Stanislaus Audubon Society v. County of Stanislaus (1995) 33 Cal.App.4th 144, 150-51; Quail Botanical Gardens Found., Inc. v. City of Encinitas (1994) 29 Cal.App.4th 1597, 1602.) The “fair argument” standard creates a “low threshold” favoring environmental review through an EIR rather than through issuance of negative declarations or notices of exemption from CEQA. (Pocket Protectors, 124 Cal.App.4th at 928.) The “fair argument” standard is virtually the opposite of the typical deferential standard accorded to agencies. As a leading CEQA treatise explains:

This ‘fair argument’ standard is very different from the standard normally followed by public agencies in their decision making. Ordinarily, public agencies weigh the evidence in the record and reach a decision based on a preponderance 768
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of the evidence. [Citation]. The fair argument standard, by contrast, prevents the lead agency from weighing competing evidence to determine who has a better argument concerning the likelihood or extent of a potential environmental impact. (Kostka & Zishcke, Practice Under the California Environmental Quality Act, §6.37 (2d ed. Cal.

CEB 2021).) The Courts have explained that “it is a question of law, not fact, whether a fair argument exists, and the courts owe no deference to the lead agency’s determination. Review is de novo, with a preference for resolving doubts in favor of environmental review.” (Pocket Protectors, 124 Cal.App.4th at 928 (emphasis in original).) For over forty years the courts have consistently held that an accurate and stable project description is a bedrock requirement of CEQA—the sine qua non (that without which there is nothing) of an adequate CEQA document:

Only through an accurate view of the project may affected outsiders and public decision-makers balance the proposal’s benefit against its environmental cost, consider mitigation measures, assess the advantage of terminating the proposal (i.e., the “no project” alternative) and weigh other alternatives in the balance. An accurate, stable and finite project description is the sine qua non of an informative and legally sufficient EIR.

(County of Inyo v. City of Los Angeles (1977) 71 Cal.App.3d 185 at 192–93.) CEQA therefore requires that an environmental review document provide an adequate description of the project to allow for the public and government agencies to participate in the review process through submitting public comments and making informed decisions.

Lastly, CEQA requires that an environmental document include a description of the project’s environmental setting or “baseline.” (CEQA Guidelines § 15063(d)(2).) The CEQA “baseline” is the set of environmental conditions against which to compare a project’s anticipated impacts. (CBE v. SCAQMD, 48 Cal.4th at 321.) CEQA Guidelines section 15125(a) states, in pertinent part, that a lead agency’s environmental review under CEQA:
…must include a description of the physical environmental conditions in the vicinity of the project, as they exist at the time [environmental analysis] is commenced, from both a local and regional perspective. This environmental setting will normally constitute the baseline physical conditions by which a Lead Agency determines whether an impact is significant.
(See Save Our Peninsula Committee v. County of Monterey (2001) 87 Cal.App.4th 99, 124-25 (“Save Our Peninsula”).) As the court of appeal has explained, “the impacts of the project must be measured against the ‘real conditions on the ground,’” and not against hypothetical permitted levels. (Id. at 121-23.)
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III. ANALYSIS
A. There is Substantial Evidence that the Project will have Significant Biological Resources Impacts Requiring an EIR.

Expert wildlife biologist Dr. Shawn Smallwood, Ph.D., reviewed the IS/MND and proposed Project and associated biological assessment. Dr. Smallwood’s review of the impacts to wildlife from the Project concluded that the Project may have significant impacts on several special-status species. An EIR is required to analyze these impacts. Dr. Smallwood’s comment and CV are attached as Exhibit A.

Dr. Smallwood’s associate, Noriko Smallwood, a wildlife biologist, performed a site visit to the proposed Project site on June 28, 2022. (See, Ex. A, pp. 1-6.) Ms. Smallwood “detected 16 species of vertebrate wildlife at the site…, as well as 2 species of invertebrate wildlife of significance,” during the 2 hours and 13 minutes she spent surveying the Project site. (Id.) Three of the species that she detected during her site were special-status species. (See, id., pp. 2-3, Table 1.) Ms. Smallwood observed abundant wildlife, including at least 56 animals on the site.

She observed “harvester ants (Pogonomermyx californicus), which are significant ecological keystone species for their roles in soil bioturbation and as prey to Blainville’s horned lizards and other species.” (Id., pp. 2-3, 5.) In addition, Ms. Smallwood also saw “Monarch butterfly (Photo 3), northern mockingbirds and mourning doves (Photos 4 and 5), California horned larks (Photo 6), Anna’s hummingbird and western side-blotched lizard (Photos 7 and 8), and numerous burrows of Botta’s pocket gopher and an unidentified species of kangaroo rat (Photos 9 and 10).” (Id., pp. 2-6)
Dr. Smallwood also identified 103 special-status species of wildlife as potentially occurring at the site based on Ms. Smallwood’s site visit and his own database review using eBird and iNaturalist, (Ex. A, pp. 12-16 & Table 2), of which “3 (3%) were confirmed on site by survey visits, 43 (43%) have been documented within 1.5 miles of the site (‘Very close’), 8 (8%) within 1.5 and 3 miles (‘Nearby’), and another 38 (38%) within 3 to 30 miles (‘In region’).” (Id., p. 12.) According to Dr. Smallwood, of the 103 special-status species, “[m]ore than half (52%) of the special-status species…have been recorded within only 3 miles of the project site, which means the site carries a lot of potential for supporting special-status species of wildlife.” (Id., see also, pp. 13-16, Table 2.) However, Dr. Smallwood points out that the IS/MND’s related biological site assessment survey, provided in the May 6, 2022 Biological Resources Evaluation prepared by UltraSystems and included as Appendix C to the IS/MND, “addresses only 22 of these” 103 special-status species identified by Dr. Smallwood. (Id., p. 12.) More specifically, Dr.

Smallwood notes:

Of these 22 species, the IS/MND determines 16 (73%) to have no chance for occurrence, 3 (14%) to have low occurrence potential, and 3 (14%) to have moderate potential. Of the 16 species the IS/MND determines have no potential, 4 (25%) have been documented within 1.5 miles of the project site, 3 (19%) have been documented within 1.5 and 3 miles of the site. Of the 3 species the IS/MND 770
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determines have low potential, 2 (67%) have been documented within 1.5 miles of the project site and the same is true of species the IS/MND determines to have moderate potential. The site holds much more potential for supporting specialstatus species of wildlife than determined in the IS/MND. (Id.) As a result, Dr. Smallwood concluded that “[a] fair argument can be made for the need to prepare an EIR to more appropriately analyze data base records to characterize the current environmental setting.” (Ex. A, p. 17. [emph. added].)
In addition, Dr. Smallwood found that the biological surveys at the Project site reveal an incomplete characterization of the environmental setting, and hence a misleading analysis of impacts from the Project on wildlife, including several special-status species found on or nearby the site. (Ex. A, pp. 7-20.) Dr. Smallwood points to several examples of the IS/MND and the related biological assessment, provided in the May 6, 2022 Biological Resources Evaluation prepared by UltraSystems and included as Appendix C to the IS/MND, failing to adequately analyze and mitigate significant adverse impacts to special-status species from Project construction and operation:

First, Dr. Smallwood found that the IS/MND only attaches significance to potential impacts to habitat where nest sites likely occur, which is improper since “all parts of a species’ habitat is of critical importance to breeding success and productivity.” (Ex. A, p. 17.) For example, “[i]t is not entirely relevant to Cooper’s hawk occurrence…that trees do not grow on site. To successfully breed, any Cooper’s hawks attempting to breed in the area likely forage on the project site.” (Id.) As such, “[l]oss of the food base from this site would likely be devastating to the nearest breeding pair of Cooper’s hawk[s].” (Id. [emph. added].) Next, “the IS/MND’s analysis of potential impacts to Los Angeles pocket mouse (LAPM) is recklessly flawed.” Dr. Smallwood points to the biological assessment prepared by UltraSystems at Appendix C to the IS/MND as evidence. Specifically, he notes that the assessment claims the following:
“Although suitable habitat for LAPM was observed on the project site, these areas were small and represent a very small fraction of suitable habitat statewide for these species. A complex of approximately 20 small mammal burrows were observed on the norther[n] border of the project site during the habitat assessment survey. These burrows could potentially be used by LAPM. Construction of the project would involve grading of the entire project site and these burrows would be destroyed. Although there is suitable habitat for LAPM on the project site, the area of suitable habitat that would be destroyed by grading activities is small and the loss of this area would not have a substantial effect on LAPM’s available habitat or population levels statewide. Thus, these impacts do not meet the threshold of significance set forth in Section 15065 of the [CEQA] Guidelines.

Therefore, construction of the project would have a less than significant impact on LAPM.” (Ex. A, pp. 17-18.)
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However, as Dr. Smallwood points out, this conclusion is inconsistent with the IS/MND’s conclusion in its preceding paragraph, stating: “The conversion of habitat to agricultural, suburban, and urban uses in the San Jacinto and Temecula valleys has greatly reduced and fragmented the historic habitat and its populations in this region. While there are a number of extant populations, many of these are small and are likely to disappear in the coming years (Brylski, 1988-1990a).” (Id., p. 18.) Hence, “[i]f [LAPM] occurs on the project site, which UltraSystems (2022) thinks they might, then the project would cause a highly significant impact to [LAPM]. (Id. [emph. added].) Thus, Dr. Smallwood recommends that “[p]rotocol-level live-trapping for [LAPM] should be completed, and the results should inform an EIR prepared for the project.” (Id.)
Similar to the LAPM example, Dr. Smallwood also found that “[t]he same applies to northwestern San Diego pocket mouse, which the IS/MND acknowledges to have been documented immediately adjacent to the project site, but which it again claims the loss of a population on the site would be less than significant.” (Ex. A, p. 18.) However, as Dr.

Smallwood correctly concludes, “[g]iven the Precautionary Principle in risk analysis, and given the foremost principles of CEQA, the burden of evidence is on [the] City…to prove less than significant impacts to species known or likely to occur on a project site.” (Id.) Additionally, Dr. Smallwood found that “the IS/MND’s analysis of potential impacts to San Bernardino kangaroo rat is also flawed.” (Ex. A, p. 18 [emph. added].) According to Dr.

Smallwood, the Project site occurs within federally designated critical habitat of San Bernardino kangaroo rat, which is also documented to have occurred only 300 meters (0.19 miles) from the Project site. (Id.) Even IS/MND admits to having detected burrows that could have belonged to this species, but then concludes that “there is no active fluvial system within the BSA, so the habitat is only marginally suitable.” (Id.) But, as Dr. Smallwood argues, “neither was there an active fluvial system where the species was documented 300 [meters] to the northwest.” (Id.) As such, “[t]he IS/MND attempts to pigeon-hole San Bernardino kangaroo rat into a narrow portion of the environment so that it can say that that type of environment is absent from the project site.” (Id.) However, the “San Bernardino kangaroo rat has a broader habitat than the IS/MND characterizes,” and most notably, Ms. Smallwood also observed burrows that based on Dr.

Smallwood’s expert experience working with kangaroo rats appears “very likely” to be “those of kangaroo rats (Photos 15 and 16).” (Ex. A, p. 18.) “Given the evidence that San Bernardino kangaroo rats occur on site,” Dr. Smallwood recommends, “protocol-level live-trapping for this species needs to be completed to inform an EIR.” (Id. [emph. added].) Dr. Smallwood also found that the IS/MND incorrectly “considers the occurrence likelihood of San Diego black-tailed jackrabbit to be low because ‘[t]his species is highly mobile and could potentially use the site as a passage to more wooded areas….’” (Ex. A, p. 18.) However, as Dr. Smallwood points out, “San Diego black-tailed jackrabbits do not live in wooded areas.” (Id.) As a result, Dr. Smallwood concludes that since “[t]he species has been documented only 1.75 miles away” from the Project site, “and as the IS/MND correctly describes, this species is mobile,” “one should expect San Diego black-tailed jackrabbit to find 772
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its last remaining refuge on the project site,” especially given that all of its other habitat is gone from the area. (Id.)
Lastly, Dr. Smallwood concludes that because the biological assessment prepared by UltraSystems found ground squirrels on the Project site, “protocol-level detection surveys are warranted for burrowing owl (CDFW 2012).” (Ex. A, p. 19 [emph. added].) According to Dr.

Smallwood, such “surveys are needed to be consistent with CDFW’s guidelines and to inform an EIR.” (Id.)
Thus, the IS/MND and related biological assessment fail to adequately analyze the impacts to special-status species on the Project. An EIR should be prepared that includes an proper baseline environmental setting in order to adequately mitigate impacts of the Project to special-status species located on or nearby the Project site.

Moreover, Dr. Smallwood also found that the following factors necessitate the preparation of an EIR:
● The IS/MND and the related biological assessment, provided in the May 6, 2022 Biological Resources Evaluation prepared by UltraSystems and included as Appendix C to the IS/MND, failed to address habitat loss and habitat fragmentation as a result of the Project, which would further permanently diminish the productive capacity of nesting birds in the area. (Ex. A, pp. 20-

21.) Specifically, Dr. Smallwood predicted that the Project would result in the “loss of 31 nest sites of birds” annually, and “denial to California of 102 birds per year,” which is a significant adverse impact that “has not been analyzed as a potential impact in the IS/MND, nor does the IS/MND provide any compensatory mitigation for this impact.” (Id., p. 21 [emph. added].) Thus, Dr. Smallwood concluded that “[a] fair argument can be made for the need to prepare an EIR to appropriately analyze the project’s impacts to wildlife caused by habitat loss and habitat fragmentation.” (Id. [emph. added].)
● The IS/MND and the related biological assessment failed to consider impacts caused to wildlife movement in the region as a result of the proposed Project. (Ex. A, p. 21.)
● The IS/MND and related biological assessment failed to consider impacts caused by project-generated traffic from the proposed Project. (Ex. A, pp. 21-

24.)
● The IS/MND and related biological survey report fails to adequately address cumulative impacts to wildlife from the Project. (Ex. A, pp. 24-25.) 773
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Lastly, Dr. Smallwood notes that the IS/MND proposes mitigation measures—i.e., BIO1: Pre-Construction Breeding Bird Survey; BIO-2: Worker Environmental Awareness Program; BIO-3: Construction Best Management Practices; BIO-4: Project Limits and Designated Areas; and BIO-5: General Vegetation and Wildlife Avoidance and Protection Measures (see, Ex. A, pp. 25-26)—that “would provide little conservation benefit to wildlife.” (Id., p. 25.) Instead, Dr. Smallwood found that “[m]ost are empty gestures, because they would provide benefits only if patches of habitat would be left in place, which is not the case with this project.” (See, e.g., id., pp. 25-26.) Therefore, Dr. Smallwood recommends several new mitigation measures, such as detection surveys for wildlife species, preconstruction nest survey, compensatory measures for impacts to habitat loss, wildlife movement, and road mortality, and funding wildlife rehabilitation facilities. (Id., pp. 26-27.) An EIR is required to analyze these feasible mitigation measures.

B. The IS/MND Fails to Adequately Analyze and Mitigate the Potential Adverse Impacts of the Project on Air Quality and Greenhouse Gas Emissions.

The IS/MND and its associated appendices claim that the air quality, health risk, and GHG impacts of the proposed Project are less-than-significant and therefore no mitigation measures are required. (See, IS/MND, pp. 4.3-1–4.3-10 [air quality impact analysis]; 4.8-1–4.8-5 [GHG emissions analysis].) However, given the size of the proposed warehouse and the likely large-scale industrial commercial operation to take place at the site once construction of the Project is complete, there is likely substantial evidence of a fair argument that the Project will have significant impacts on the public and surrounding environment relating to air quality, GHG emissions, and health risk impacts. As such, adequate mitigation measures, at the very least, are needed to reduce these impacts to less than significant. However, given the nature of the Project, an EIR will likely be required to adequately analyze and mitigate such impacts.

C. The IS/MND’s Analysis of Energy Impacts is Conclusory and Fails to Provide Substantial Evidence that the Project’s Energy Impacts are Less than Significant.

Contrary to IS/MND, the construction of the Project could potentially cause wasteful, inefficient, and unnecessary consumption of energy. (See, IS/MND, pp. 4.6-1–4.6-4.) The standard under CEQA is whether the Project would result in wasteful, inefficient, or unnecessary consumption of energy resources. Failing to undertake “an investigation into renewable energy options that might be available or appropriate for a project” violates CEQA. (California Clean Energy Committee v. City of Woodland (2014) 225 Cal.App.4th 173, 213.) Energy conservation under CEQA is defined as the “wise and efficient use of energy.” (CEQA Guidelines, app. F, § I.) The “wise and efficient use of energy” is achieved by “(1) decreasing overall per capita energy consumption, (2) decreasing reliance on fossil fuels such as coal, natural gas and oil, and (3) increasing reliance on renewable energy resources.” (Id.) 774
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Noting compliance with the California Building Energy Efficiency Standards (Cal. Code Regs., tit. 24, part 6 (Title 24) does not constitute an adequate analysis of energy. (Ukiah Citizens for Safety First v. City of Ukiah (2016) 248 Cal.App.4th 256, 264-65.) Similarly, the court in City of Woodland held unlawful an energy analysis that relied on compliance with Title 24, that failed to assess transportation energy impacts, and that failed to address renewable energy impacts. (25 Cal.App.4th at pp. 209-13.) As such, the IS/MND’s reliance on Title 24 compliance does not satisfy the requirements for an adequate discussion of the Project’s energy impacts.

The IS/MND summarily concludes that the project would not result in the inefficient, wasteful and unnecessary consumption of energy. There is no discussion of the Project’s cost effectiveness in terms of energy requirements. There is no discussion of energy consuming equipment and processes that will be used during the construction or operation of the project, including the energy necessary to maintain freezer storage. The Project’s energy use efficiencies by amount and fuel type for each stage of the project including construction, operation, and maintenance were not identified. The effect of the project on peak and base period demands for electricity has not been addressed. The GHG discussion in the EIR addresses GHG emissions resulting from energy production and energy savings measures, but it does not analyze energy conservation. As such, the IS/MND conclusions are unsupported by the necessary discussions of the Project’s energy impacts under CEQA.

IV. CONCLUSION
For the foregoing reasons, the IS/MND for the Project is in violation of CEQA. Thus, an EIR must be prepared for the proposed Project and should be circulated for public review and comment in accordance with CEQA. SAFER reserves the right to supplement these comments in advance of and during public hearings concerning the Project. Galante Vineyards v. Monterey Peninsula Water Management Dist., 60 Cal. App. 4th 1109, 1121 (1997). Thank you for considering these comments.

Sincerely,
Victoria Ann Yundt
LOZEAU | DRURY LLP
775

EXHIBIT A
776
Shawn Smallwood, PhD
3108 Finch Street
Davis, CA 95616
Cecily Session-Goins, Associate Planner
City of Fontana Planning Department
8353 Sierra Avenue
Fontana, CA 92335-3528 4 July 2022
RE: Amazing 34 Distribution Center
Dear Ms. Session-Goins,
I write to comment on the Initial Study/Mitigated Negative Declaration (IS/MND) prepared for the proposed Summit Avenue Warehouse project, which I understand would add a warehouse with 102,380 sf of floor space on 4.49 acres on the east side of Sierra Avenue and north of Summit Avenue, Fontana, California (City of Fontana 2022).

In support of my comments, I reviewed a habitat assessment prepared by Ultrasystems (2022).

My qualifications for preparing expert comments are the following. I hold a Ph.D. degree in Ecology from University of California at Davis, where I subsequently worked for four years as a post-graduate researcher in the Department of Agronomy and Range Sciences. My research has been on animal density and distribution, habitat selection, interactions between wildlife and human infrastructure and activities, conservation of rare and endangered species, and on the ecology of invading species. I authored numerous papers on special-status species issues. I served as Chair of the Conservation Affairs Committee for The Wildlife Society – Western Section. I am a member of The Wildlife Society and the Raptor Research Foundation, and I’ve been a part-time lecturer at California State University, Sacramento. I was Associate Editor of wildlife biology’s premier scientific journal, The Journal of Wildlife Management, as well as of Biological Conservation, and I was on the Editorial Board of Environmental Management. I have performed wildlife surveys in California for thirty-five years, including at many proposed project sites. My CV is attached.

SITE VISIT
On my behalf, Noriko Smallwood, a wildlife biologist with a Master’s Degree from California State University Los Angeles, visited the site of the proposed project for 2.167 hours from 06:25 to 08:38 hours on 28 June 2022. She walked the site’s west perimeter, stopping to scan for wildlife with the use of binoculars. The sky was clear with no wind, and temperatures ranged 73‒82° F.

The site was covered by low-stature vegetation and surrounded by scattered ornamental trees and shrubs (Photos 1 and 2). The site composed an island of open space that would attract any wildlife in search of opportunities to breed, forage, or stop-over during long-distance travel.
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Photos 1 and 2. Views of the site of the proposed project, 28 June 2022.

Noriko detected 16 species of vertebrate wildlife at the site (Table 1), as well as 2 species of invertebrate wildlife of significance. She saw members of 3 special-status species of wildlife. Noriko saw at least 56 animals. She saw harvester ants (Pogonomermyx californicus), which are significant ecological keystone species for their roles in soil bioturbation and as prey to Blainville’s horned lizards and other species. Noriko saw Monarch butterfly (Photo 3), northern mockingbirds and mourning doves (Photos 4 and 5), California horned larks (Photo 6), Anna’s hummingbird and western side-blotched lizard (Photos 7 and 8), and numerous burrows of Botta’s pocket gopher and an unidentified species of kangaroo rat (Photos 9 and 10). 778
Table 1. Species of wildlife Noriko observed at the project site during 2.167 hours of survey starting at 06:25 on 28 June 2022.

Common name Species name Status1 Notes
Monarch Danaus plexippus FC
Western side-blotched lizard Uta stansburiana elegans
Rock pigeon Columba livia Non-native
Mourning dove Zenaida macroura
Anna’s hummingbird Calypte anna
Red-shouldered hawk Buteo lineatus BOP
Black phoebe Sayornis nigricans
American crow Corvus brachyrhynchos
Common raven Corvus corax
California horned lark Eremophila alpestris actia WL
Northern mockingbird Mimus polyglottos
European starling Sturnus vulgaris Non-native
House sparrow Passer domesticus Non-native Just offsite House finch Haemorphous mexicanus
Lesser goldfinch Spinus psaltria
Kangaroo-rat spp. Dipodomys spp.

Botta's pocket gopher Thomomys bottae
1 Listed as FC = Federal Candidate for listing, WL = Taxa to Watch List (Shuford and Gardali 2008), and BOP = Birds of Prey (California Fish and Game Code 3503.5).

Photo 3.

Monarch
nectaring
on the
project site,
28 June
2022. Photo
by Noriko
Smallwood.
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Photos 4 and 5. Northern mockingbird with prey (left) and mourning dove (right) at the project site, 28 June 2022. Photos by Noriko Smallwood.

Photo 6. California horned larks on the project site, 28 June 2022. Photo by Noriko Smallwood.
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Photos 7 and 8. Anna’s hummingbird chasing volant insects (left) and a western side-blotched lizard (right) at the project site, 28 June 2022. Photos by Noriko Smallwood.

Photo 9. Soil mounds of Botta’s pocket gopher on the project site, 28 June 2022.

Photo by Noriko Smallwood.
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Photo 10. Burrow of an unidentified species of kangaroo rat on the project site, 28 June 2022. Photo by Noriko Smallwood.

Noriko Smallwood certifies that the foregoing survey results are true and accurately reported.
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BASELINE SETTING
The first step in analysis of potential project impacts to biological resources is to accurately characterize the biological baseline, including the biological species that use the site, their relative abundances, how they use the site, key ecological relationships, and known and ongoing threats to those species with special status. A reasonably accurate characterization of the environmental setting can provide the basis for determining whether the site holds habitat value to wildlife, as well as a baseline against which to analyze potential project impacts. Methods to achieve this first step typically include surveys of the site for biological resources and reviews of literature, databases and local experts for documented occurrences of special-status species. In the case of this project, these essential steps remain grossly incomplete. Herein I provide some characterization of the wildlife community as a component of the current environmental setting, including the identification of special-status species likely to use the site at one time or another.

Environmental Setting informed by Field Surveys
UltraSystems (2022) surveyed the project site for biological resources on 5 August 2021.

UltraSystems (2022) detected the occurrences of another 5 species of vertebrate wildlife that were not detected by Noriko, including western fence lizard (Sceloporus occidentalis), semi-palmated plover (Charadrius semipalmatus), northern mockingbird (Mimus polyglottos), coyote (Canis latrans), and California ground squirrel (Otospermophilus beecheyi). These species added to the 16 species observed by Noriko brings the running total to 21 species of vertebrate wildlife. Photo 16 of UltraSystems (2022: Attachment 3) shows a complex of small mammal burrows, which appear to have been California vole (Microtus californicus) burrows – a 22nd species detected on site but not identified by UltraSystems. Note, however, that Noriko detected 3.2 times the number that UltraSystems did, even though UltraSystems had complete access to the site whereas Noriko surveyed only from the west edge of the site.

The difference in survey outcomes between Noriko and UltraSystems (2022) might have resulted from UltraSystems sending out their biologist with 7 survey objectives to be completed simultaneously – a set of objectives no biologist should be expected to perform well all at the same time. The objectives of the UltraSystems biologist were (1) Habitat assessment and land cover type mapping, (2) Sensitive plant community assessment, (3) General plant survey, (4) General wildlife survey, (5) SBKR habitat assessment, (6) Jurisdictional waters/wetlands assessment, and (7) Wildlife movement evaluation. Each one of these objectives would be most effectively achieved by dedicated survey; pursuing any two of them simultaneously would diminish the reliability of survey outcomes. Pursuing all seven objectives simultaneously could not yield defensible results.

It is possible that UltraSystems’ (2022) survey was separated into 7 surveys begun at 7 different times in pursuit of the 7 objectives on 5 August 2021, but the reporting of the survey neglected to include sufficient detail to determine whether this was the case. It was probably not the case. The start time of the wildlife survey might also have been a 783
factor explaining why Noriko found 3.2 times the number of wildlife species than UltraSystems did, but UltraSystems did not report this important detail. Neither did UltraSystems report how long the survey lasted – another important methodological detail.

According to UltraSystems (2022:27), “No federally listed endangered, threatened, or candidate wildlife species were observed during the field survey” This seemingly factual statement is actually pseudoscientific, because the surveys were not detection surveys, meaning they were not designed, nor were they performed, to provide reasonable probability of detection of any given special-status species. During her brief survey from the sideline, Noriko saw Monarch butterfly, which is a candidate for federal listing, and she saw California horned larks and red-shouldered hawk. Noriko also saw burrows of kangaroo rats, which could very well be those of San Bernardino kangaroo rat – a species that is federally endangered, a candidate for California endangered and California Species of Special Concern. In summary, the fact that UltraSystems did not detect any special-status species at the site is unsurprising considering their methodology, but I Noriko detected 3 special-status species including a candidate for federal listing and quite possibly the endangered San Bernardino kangaroo rat.

That UltraSystems (2022) detected 4 or 5 species (80-83%) of wildlife that Noriko did not, and that Noriko found 15 species (94%) of wildlife that UltraSystems did not, reveals the probabilistic nature of reconnaissance-level surveys or, as UltraSystems (2022) termed, general wildlife surveys. These surveys, unlike protocol-level detection surveys, are not optimized to detect particular special-status species. Nor are these surveys optimized for obtaining species inventory as a representation of the site’s wildlife community, whose membership changes by time of day, season and year, and whose detectability also changes by the same factors as well as by methodology and investigator experience. Much more effort would be needed to achieve the minimum standards of detection surveys for any given special-status species, and much more effort would be needed to accurately inventory the wildlife community. One needs to be very careful when interpreting the outcome of a reconnaissance-level survey.

A reconnaissance-level survey can be useful for confirming presence of species that were detected, but it can also be useful for estimating the number of species that were not detected. One can model the pattern in species detections during a survey as a means to estimate the number of species that used the site but were undetected during the survey.

To support such a modeling effort, the observer needs to record the times into the survey when each species was first detected. The cumulative number of species’ detections increases with increasing survey time, but eventually with diminishing returns (Figure 1). In the case of Noriko’s survey, the pattern in the data (Figure 1) predicts that had Noriko spent more time on site, or had she help from additional biologists, she would have detected 23 species of vertebrate wildlife during the morning of 28 June 2022. This modeling approach is useful for more realistically representing the species richness of the site at the time of a survey, but it cannot represent the species richness throughout the year or across multiple years because many species are seasonal or even multi-annual in their movement patterns and in their occupancy of habitat. 784
Figure 1. Actual (red
circles) and predicted (red
line) relationships between
the number of vertebrate
wildlife species detected and
the elapsed survey time
based on Noriko
Smallwood’s visual-scan
survey on 28 June 2022, and
compared to the mean and
95% CI of surveys at 15 sites
she and I performed at
proposed project sites in the
Inland Empire and Moreno
Valley region. Note that the
relationship would differ if
the survey was based on
another method or during
another season.

Figure 1 also reveals that the richness of the wildlife community at the project site is at within the 95% CI of mean species richness among the proposed project sites Noriko and I have surveyed in the region of the project site over the past three years. Relative to other proposed project sites in the region, the site of the proposed project supports lower species richness, but the model nevertheless predicts 23 species could have been detected that very morning of the 28th had more biologists been available. The site supports plenty of species of wildlife, and there can be no doubt that it provides ample habitat value to wildlife – more than this model can predict, because the model is based on one survey of one morning.

By use of an analytical bridge, a modeling effort applied to data collected elsewhere can predict the number of vertebrate wildlife species likely making use of the site over the longer term. As part of my research, I completed a much larger survey effort across 167 km2 of annual grasslands of the Altamont Pass Wind Resource Area, where from 2015 through 2019 I performed 721 1-hour visual-scan surveys, or 721 hours of surveys, at 46 stations. I used binoculars and otherwise the methods were the same as the methods Noriko and I and other consulting biologists use for surveys at proposed project sites.

At each of the 46 survey stations, I tallied new species detected with each sequential survey at that station, and then related the cumulative species detected to the hours (number of surveys, as each survey lasted 1 hour) used to accumulate my counts of species detected. I used combined quadratic and simplex methods of estimation in Statistica to estimate least-squares, best-fit nonlinear models of the number of cumulative species detected regressed on hours of survey (number of surveys) at the station: 𝑅̂ =
1 1⁄𝑎+𝑏×(𝐻𝑜𝑢𝑟𝑠)
𝑐
, where 𝑅̂ represented cumulative species richness detected. 0 50 100 150 200 250 300
0 5
10 15
20 25
30 Minutes into survey
Cumulative number of wildlife species detected
Actual count of species
Model prediction
r
2 = 0.98, loss = 6.8
95% CI of 15 visualscan surveys 2019-2022
Y
785
The coefficients of determination, r
2, of the models ranged 0.88 to 1.00, with a mean of

0.97 (95% CI: 0.96, 0.98); or in other words, the models were excellent fits to the data.

I projected the predictions of each model to thousands of hours to find predicted asymptotes of wildlife species richness. The mean model-predicted asymptote of species richness was 57 after 11,857 hours of visual-scan surveys among the 46 stations. I also averaged model predictions of species richness at each incremental increase of number of surveys, i.e., number of hours (Figure 2). On average I detected 10.2 species over the first 2.167 hours of surveys in the Altamont Pass (2.167 hours to match the number of hours I surveyed at the project site), which composed 17.9% of the total predicted species I would detect with a much larger survey effort. Given the example illustrated in Figure 2, the 16 species Noriko detected after her 2.167 hours of survey at the project site likely represented 17.9% of the species to be detected after many more visual-scan surveys over another year or longer. With many more repeat surveys through the year, Noriko would likely detect 16

0.179 ⁄ = 89 species of vertebrate wildlife at the site.

Figure 2. Mean (95% CI)
predicted wildlife species
richness, 𝑅̂, as a nonlinear
function of hour-long
survey increments across
46 visual-scan survey
stations across the
Altamont Pass Wind
Resource Area, Alameda
and Contra Costa
Counties, 2015‒2019.

Again, however, my prediction of 89 species of vertebrate wildlife is derived from visualscan surveys during the daytime, and would not detect nocturnal mammals. The true number of species composing the wildlife community of the site must be larger. A reconnaissance-level survey should serve only as a starting point toward characterization of a site’s wildlife community, but it certainly cannot alone inform of the inventory of species that use the site. Without careful interpretation, UltraSystems’ survey outcome should not represent baseline conditions, because there were truly many more species that used the site at the time of the survey than were detected by 0 20 40 60 80 100
0 10
20 30
40 50
Cumulative number of surveys (hours)
(95% CI)
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UltraSystems. UltraSystems managed to detect but a very small fraction of the wildlife community that occurs at the site, having detected only 5 of ≥89, or 5.6% of diurnally active species.

Additionally, the likelihood of detecting special-status species is typically lower than that of more common species. This difference can be explained by the fact that specialstatus species tend to be rarer and thus less detectable than common species. Specialstatus species also tend to be more cryptic, fossorial, or active during nocturnal periods when reconnaissance surveys are not performed. Another useful relationship from careful recording of species detections and subsequent comparative analysis is the probability of detection of listed species as a function of an increasing number of vertebrate wildlife species detected (Figure 3). (Note that listed species number fewer than special-status species, which are inclusive of listed species. Also note that I include California Fully Protected species and federal Candidate species as “listed” species.) Figure 3. Probability of
detecting ≥1 Candidate,
Threatened or
Endangered Species of
wildlife listed under
California or federal
Endangered Species Acts,
based on survey outcomes
logit-regressed on the
number of wildlife species
Noriko Smallwood and I
detected during surveys
at 199 project sites in
California, 1999-2022.

The solid vertical line
represents the number of
species Noriko detected,
and the dashed vertical
line represents the
number of species
detected by UltraSystems.

As demonstrated in Figures 1 and 2, the number of species detected is largely a function of survey effort. Greater survey effort also increases the likelihood that listed species will be detected (which is the first tenet of detection surveys for special-status species).

Based on the outcomes of surveys earlier completed at 199 project sites, Noriko’s survey effort at the project site carried an 23% chance of detecting a listed species, whereas the survey effort of UltraSystems carried a 4% chance. Listed species of vertebrate wildlife likely use the site, but conclusively documenting their use would take more survey effort to achieve a reasonable likelihood of detection. No reconnaissance-level survey is capable of detecting enough of the wildlife species that occur at a site to realistically characterize the site’s wildlife community, including the site’s special-status species. A 0 20 40 60 80 100 120

0.0 0.2

0.4 0.6

0.8 1.0
Number of species detected
Probability of detecting Fully Protected,
Candidate, Threatened or Endangered Species
Hosmer Lemeshow =3.48, P = 0.90
95% CI
199 sites 787
fair argument can be made for the need to prepare an EIR that is better informed by biological resources surveys and by appropriate interpretation of survey outcomes for the purpose of characterizing the wildlife community as part of the current environmental setting.

Environmental Setting informed by Desktop Review
As I noted earlier, the other first step toward characterization of the wildlife community as part of baseline conditions is to review literature, databases and local experts for documented occurrences of special-status species around the site. In support of the IS/MND, UltraSystems (2022) reviewed the California Natural Diversity Data Base (CNDDB) to identify species for which to determine occurrence likelihoods. Had eBird and iNaturalist also been reviewed, determinations of occurrence likelihood would have been made for many additional species (Table 2). In my assessment based on data base reviews and the site visits by Noriko and UltraSystems, 103 special-status species of wildlife potentially use the site at one time or another. Of these, 3 (3%) were confirmed on site by survey visits, 43 (43%) have been documented within 1.5 miles of the site (‘Very close’), 8 (8%) within 1.5 and 3 miles (‘Nearby’), and another 38 (38%) within 3 to 30 miles (‘In region’). More than half (52%) of the special-status species in Table 2 have been recorded within only 3 miles of the project site, which means the site carries a lot of potential for supporting special-status species of wildlife. That the site is now an island of remaining habitat is all the more reason to expect that special-status species occur there – where else could they occur anymore?
Whereas my review reveals 103 special-status species with potential to occur on site, the ISD/MND addresses only 22 of these. Of these 22 species, the IS/MND determines 16 (73%) to have no chance for occurrence, 3 (14%) to have low occurrence potential, and 3 (14%) to have moderate potential. Of the 16 species the IS/MND determines have no potential, 4 (25%) have been documented within 1.5 miles of the project site, 3 (19%) have been documented within 1.5 and 3miles of the site. Of the 3 species the IS/MND determines have low potential, 2 (67%) have been documented within 1.5 miles of the project site and the same is true of species the IS/MND determines to have moderate potential. The site holds much more potential for supporting special-status species of wildlife than determined in the IS/MND.
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Table 2. Occurrence likelihoods of special-status bird species at or near the proposed project site, according to UltraSystems (2022) and to site visits and publicly available occurrence databases, where “very close” indicates within

1.5 miles of the site, “nearby” indicates within 1.5 and 3 miles, and “in region” indicates within 3 and 30 miles.

Common name Species name Status1
Occurrence
likelihood
(UltraSystems)
Data base
records, Site
visits
Monarch Danaus plexippus FC On site
Crotch’s bumble bee Bombus crotchii CCE Low Very close
Delhi sands flower-loving fly Rhaphiomidas terminatus
abdominalis
FE None In region
Western spadefoot Spea hammondii SSC None Nearby
Arroyo toad Anaxyrus californicus FE, SSC None In region Western pond turtle Emys marmorata SSC In region
Coast horned lizard Phrynosoma blainvillii SSC None Very close Coastal whiptail Aspidoscelis tigris stejnegeri SSC None In region California legless lizard Anniella spp. SSC None Very close California glossy snake Arizona elegans occidentalis SSC None In region Coast patch-nosed snake Salvadora hexalepis virgultea SSC In region Two-striped gartersnake Thamnophis hammondii SSC None In region Redhead Aythya americana SSC Nearby
Western grebe Aechmophorus occidentalis BCC In region
Clark’s grebe Aechmophorus clarkii BCC In region
Black swift Cypseloides niger SSC, BCC In region
Vaux’s swift Chaetura vauxi SSC2 Very close
Costa’s hummingbird Calypte costae BCC Very close
Rufous hummingbird Selasphorus rufus BCC Very close
Allen’s hummingbird Selasphorus sasin BCC Very close
Whimbrel Numenius phaeopus BCC In region
Long-billed curlew Numenius americanus BCC, WL In region Marbled godwit Limosa fedoa BCC In region
Western gull Larus occidentalis BCC Very close
California gull Larus californicus WL, BCC Very close
Caspian tern Hydroprogne caspia BCC In region
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Common name Species name Status1
Occurrence
likelihood
(UltraSystems)
Data base
records, Site
visits
Common loon Gavia immer SSC In region
Double-crested cormorant Phalacrocorax auritus WL Very close American white pelican Pelacanus erythrorhynchos SSC1 Nearby California brown pelican Pelecanus occidentalis californicus CFP In region Least bittern Ixobrychus exilis SSC In region
White-faced ibis Plegadis chihi WL Very close
Turkey vulture Cathartes aura BOP Very close
Osprey Pandion haliaetus WL, BOP Very close
White-tailed kite Elanus luecurus CFP, WL, BOP In region Golden eagle Aquila chrysaetos BGEPA, CFP, BOP Very close Northern harrier Circus cyaneus SSC3, BOP Very close
Sharp-shinned hawk Accipiter striatus WL, BOP Very close Cooper’s hawk Accipiter cooperii WL, BOP Moderate Very close Bald eagle Haliaeetus leucocephalus BGEPA, BCC, CFP In region Red-shouldered hawk Buteo lineatus BOP On site
Swainson’s hawk Buteo swainsoni CT, BOP Very close
Red-tailed hawk Buteo jamaicensis BOP Very close
Ferruginous hawk Buteo regalis WL, BOP Very close
Barn owl Tyto alba BOP Very close
Western screech-owl Megascops kennicotti BOP In region
Great horned owl Bubo virginianus BOP Very close
Burrowing owl Athene cunicularia BCC, SSC2, BOP None Nearby Long-eared owl Asio Otis SSC3, BOP In region
Short-eared owl Asia flammeus BCC, SSC3, BOP In region
Lewis’s woodpecker Melanerpes lewis BCC In region
Nuttall’s woodpecker Picoides nuttallii BCC Very close
American kestrel Falco sparverius BOP Very close
Merlin Falco columbarius WL, BOP Very close
Peregrine falcon Falco peregrinus CFP, BOP, BCC Very close Prairie falcon Falco mexicanus BCC, WL, BOP Very close
790
Common name Species name Status1
Occurrence
likelihood
(UltraSystems)
Data base
records, Site
visits
Olive-sided flycatcher Contopus cooperi BCC, SSC2 Very close Willow flycatcher Empidonax trailii CE, BCC Very close
Vermilion flycatcher Pyrocephalus rubinus SSC2 In region Least Bell’s vireo Vireo bellii pusillus FE, CE None In region Loggerhead shrike Lanius ludovicianus BCC, SSC2 Very close Oak titmouse Baeolophus inornatus BCC Very close
California horned lark Eremophila alpestris actia WL On site Bank swallow Riparia riparia CT In region
Purple martin Progne subis SSC2 Very close
Wrentit Chamaea fasciata BCC Very close
California gnatcatcher Polioptila c. californica CT, SSC None Very close California thrasher Toxostoma redivivum BCC Very close
Cassin’s finch Haemorhous cassinii BCC In region
Lawrence’s goldfinch Spinus lawrencei BCC Very close
Grasshopper sparrow Ammodramus savannarum SSC2 In region Black-chinned sparrow Spizella atrogularis BCC In region Brewer’s sparrow Spizella breweri BCC Very close
Bell’s sparrow Amphispiza b. belli WL, BCC None Nearby
Oregon vesper sparrow Pooecetes gramineus affinis SSC2, BCC Very close Southern California rufouscrowned sparrowAimophila ruficeps canescens WL Nearby Yellow-breasted chat Icteria virens SSC3 Very close
Yellow-headed blackbird Xanthocephalus xanthocephalus SSC3 Nearby Bullock’s oriole Icterus bullockii BCC Very close
Tricolored blackbird Agelaius tricolor CT, BCC, SSC None In region Lucy’s warbler Leiothlypis luciae SSC, BCC In region
Virginia’s warbler Leiothlypis virginiae WL, BCC In region Yellow warbler Dendroica petechia BCC, SSC2 None Very close Summer tanager Piranga rubra SSC1 In region
Pallid bat Antrozous pallidus SSC, WBWG:H In range
791
Common name Species name Status1
Occurrence
likelihood
(UltraSystems)
Data base
records, Site
visits
Townsend’s big-eared bat Corynorhinus townsendii SSC, WBWG:H In region Western red bat Lasiurus blossevillii SSC, WBWG:H In region Hoary bat Lasiurus cinereus WBWG:M In region
Western yellow bat Lasiurus xanthinus SSC, WBWG:H None In range Western small-footed myotis Myotis cililabrum WBWG:M In range Miller’s myotis Myotis evotis WBWG:M In range
Fringed myotis Myotis thysanodes WBWG:H In range
Long-legged myotis Myotis volans WBWG:H In range
Yuma myotis Myotis yumanensis WBWG:LM In region
Western mastiff bat Eumops perotis SSC, WBWG:H In range San Diego black-tailed jackrabbit Lepus californicus bennettii SSC Low Nearby Northwestern San Diego pocket
mouse
Chaetodipus fallax fallax SSC Moderate Very close
San Bernardino kangaroo rat Dipodomys merriami parvus FE, CCE, SSC Low Very close, probably on site
Stephens’ kangaroo rat Dipodomys stephensi FE, CT In range Los Angeles pocket mouse Perognathus longimembris
brevinasus
SSC Moderate In range
Bryant’s woodrat Neotoma lepida intermedia SSC None In region Southern grasshopper mouse Onychomys torridus ramona SSC In range American badger Taxidea taxus SSC In range
1 Listed as FE or FC = federal endangered or candidate endangered, BCC = U.S. Fish and Wildlife Service Bird of Conservation Concern, CE, CT, CCE = California endangered, threatened, and Candidate California Endangered, CFP = California Fully Protected (CFG Code 3511), SSC = California species of special concern, SSC1, SSC2 and SSC3 = California Bird Species of Special Concern priorities 1, 2 and 3, respectively (Shuford and Gardali 2008), WL = Taxa to Watch List (Shuford and Gardali 2008), BOP = Birds of Prey (CFG Code 3503.5), and WBWG = Western Bat Working Group with priority rankings, of low, moderate, and high. 792
17 Furthermore, the IS/MND misapplies CNDDB to screen out special-status species not reported within 10 miles of the site. Whereas CNDDB can be helpful for confirming occurrences of special-status species where they have been reported, it cannot be relied upon for determining absences of species. This is because CNDDB relies on volunteer reporting, and it is limited in its spatial coverage by the access of biologists to private properties. The findings reported to CNDDB do not originate from any sort of randomized or systematic sampling across California, nor does CNDDB collect reports of negative findings. Many survey findings are not reported to CNDDB because consulting biologists signed non-disclosure agreements with developers. Furthermore, most wildlife species in California are not reported to CNDDB, because CNDDB is uninterested in them and Scientific Collecting Permits do not require their reporting.

Therefore, species recently assigned special status will be under-represented in CNDDB.

In the absence of scientific sampling, absence determinations based on CNDDB reporting are vulnerable to multiple biases. The limitations of CNDDB are well-known, and summarized by CDFW in a warning presented on its CNDDB web site, https://wildlife.ca.gov/Data/CNDDB/About: “We work very hard to keep the CNDDB and the Spotted Owl Database as current and up-to-date as possible given our capabilities and resources. However, we cannot and do not portray the CNDDB as an exhaustive and comprehensive inventory of all rare species and natural communities statewide. Field verification for the presence or absence of sensitive species will always be an important obligation of our customers. Likewise, your contribution of data to the CNDDB is equally important to the maintenance of the CNDDB. ...” A fair argument can be made for the need to prepare an EIR to more appropriately analyze data base records to characterize the current environmental setting.

According to UltraSystems (2022:10), “Previous consultant studies and reports near the project site and project vicinity were reviewed to gain a sense of the existing conditions at the time the studies were conducted.” However, I found only one cited study used to inform the findings of UltraSystems (2022). If any othersuch studies were used, their relevance should be clearly summarized and the reports cited.

The IS/MND attaches significance to potential impacts only to habitat where nest sites likely occur, but all parts of a species’ habitat is of critical importance to breeding success and productivity. It is not entirely relevant to Cooper’s hawk occurrence, therefore, that trees do not grow on site. To successfully breed, any Cooper’s hawks attempting to breed in the area likely forage on the project site. Loss of th efood base from this site would likely be devastating to the nearest breeding pair of Cooper’s hwak.

The IS/MND’s analysis of potential impacts to Los Angeles pocket mouse (LAPM) is recklessly flawed. According to UltraSystems (2022), “Although suitable habitat for LAPM was observed on the project site, these areas were small and represent a very small fraction of suitable habitat statewide for these species. A complex of approximately 20 small mammal burrows were observed on the norther border of the project site during the habitat assessment survey. These burrows could potentially be used by LAPM. Construction of the project would involve grading of the entire project site and these burrows would be destroyed. Although there is suitable habitat for LAPM 793
18 on the project site, the area of suitable habitat that would be destroyed by grading activities is small and the loss of this area would not have a substantial effect on LAPM’s available habitat or population levels statewide. Thus, these impacts do not meet the threshold of significance set forth in Section 15065 of the California Environmental Quality Act (CEQA) Guidelines. Therefore, construction of the project would have a less than significant impact on LAPM.” This conclusion is inconsistent with the IS/MND’s conclusion in its preceding paragraph: “The conversion of habitat to agricultural, suburban, and urban uses in the San Jacinto and Temecula valleys has greatly reduced and fragmented the historic habitat and its populations in this region. While there are a number of extant populations, many of these are small and are likely to disappear in the coming years (Brylski, 1988-1990a).” If LAPD occurs on the project site, which UltraSystems (2022) thinks they might, then the project would cause a highly significant impact to LAPD. Protocol-level live-trapping for LAPD should be completed, and the results should inform an EIR prepared for the project.

The same applies to northwestern San Diego pocket mouse, which the IS/MND acknowledges to have been documented immediately adjacent to the project site, but which it again claims the loss of a population on the site would be less than significant.

Given the Precautionary Principle in risk analysis, and given the foremost principles of CEQA, the burden of evidence is on City of Fontana to prove less than significant impacts to species known or likely to occur on a project site.

The IS/MND’s analysis of potential impacts to San Bernardino kangaroo rat is also flawed. The project site occurs within federally designated critical habitat of San Bernardino kangaroo rat, which is also documented to have occurred only 300 m (0.19 miles) from the project site. Table 3 admits to having detected burrows that could have belonged to this species, but then concludes “However, there is no active fluvial system within the BSA, so the habitat is only marginally suitable.” But neither was there an active fluvial system where the species was documented 300 m to the northwest. The IS/MND attempts to pigeon-hole San Bernardino kangaroo rat into a narrow portion of the environment so that it can say that that type of environment is absent from the project site. San Bernardino kangaroo rat has a broader habitat than the IS/MND characterizes. And Noriko Smallwood also saw burrows that in my experience working with kangaroo rats look very likely those of kangaroo rats (Photos 15 and 16). Given the evidence that San Bernardino kangaroo rats occur on site, protocol-level live-trapping for this species needs to be completed to inform an EIR.

The IS/MND considers the occurrence likelihood of San Diego black-tailed jackrabbit to be low because “This species is highly mobile and could potentially use the site as a passage to more wooded areas...” San Diego black-tailed jackrabbits do not live in wooded areas. The species has been documented only 1.75 miles away, and as the IS/MND correctly describes, this species is mobile. With all of its other habitat gone from the area, one should expect San Diego black-tailed jackrabbit to find its last remaining refuge on the project site.
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19 Because UltraSystems (2022) found ground squirrels on the project site, protocol-level detection surveys are warranted for burrowing owl (CDFW 2012). These surveys are needed to be consistent with CDFW’s guidelines and to inform an EIR.

Photo 15. Likely burrow of San Bernardino kangaroo rat on the project site, 28 June 2022. Photo by Noriko Smallwood.
795
20 Photo 16. Likely burrow of San Bernardino kangaroo rat on the project site, 28 June 2022. Photo by Noriko Smallwood.

BIOLOGICAL IMPACTS ASSESSMENT
Determination of occurrence likelihoods of special-status species is not, in and of itself, an analysis of potential project impacts. An impacts analysis should consider whether and how a proposed project would affect members of a species, larger demographic units of the species, or the whole of a species. In the following, I analyze several types of impacts likely to result from the project, one of which is unsoundly analyzed and the others not analyzed in the IS/MND.

HABITAT LOSS
The IS/MND does not address potential impacts of habitat loss to breeding birds.

Habitat loss has been recognized as the most likely leading cause of a documented 29% decline in overall bird abundance across North America over the last 48 years (Rosenberg et al. 2019). Habitat loss not only results in the immediate numerical decline of wildlife, but it also results in permanent loss of productive capacity. For example, a complex of grassland, wetland, and woodland at one study site had a total bird nesting density of 32.8 nests per acre (Young 1948). In another study on a similar 796
21 complex of vegetation cover, the average annual nest density was 35.8 nests per acre (Yahner 1982). These densities averaged 34.3 nests per acre, but they were from study sites that were wetter than the project site. Assuming the nest density of the project site is only a fifth that documented by Young (1948) and Yahner (1982), an average nest density of 6.86 multiplied against the project’s 4.49 acres would estimate a capacity of 31 bird nests annually. Considering the number of birds Noriko saw on site (44), and assuming some of the birds remained hidden on their nests, my assumption that nest density was a fifth that of Young (1048) and Yahner (1982) seems reasonable.

The loss of 31 nest sites of birds would qualify as a significant project impact that has not been addressed in the IS/MND. But the impact does not end with the immediate loss of nest sites as the site is graded in preparation for impervious surfaces. The reproductive capacity of the site would be lost. The average number of fledglings per nest in Young’s (1948) study was 2.9. Assuming Young’s (1948) study site typifies bird productivity, the project would prevent the production of 90 fledglings per year. After 100 years and further assuming an average bird generation time of 5 years, the lost capacity of both breeders and annual fledgling production would total 10,240 birds {(nests/year × chicks/nest × number of years) + (2 adults/nest × nests/year) × (number of years ÷ years/generation)}. The project’s denial to California of 102 birds per year has not been analyzed as a potential impact in the IS/MND, nor does the IS/MND provide any compensatory mitigation for this impact. A fair argument can be made for the need to prepare an EIR to appropriately analyze the project’s impacts to wildlife caused by habitat loss and habitat fragmentation.

WILDLIFE MOVEMENT
The IS/MND’s analysis of whether the project would interfere with wildlife movement in the region is fundamentally flawed. The IS/MND points to connectivity and corridor maps in the San Gabriel Mountains and Santa Ana River and says the project site is not within any of those. The implied premise is that only disruption of the function of a wildlife corridor can interfere with wildlife movement in the region. This premise, however, represents a false CEQA standard, and is therefore inappropriate to the analysis. The primary phrase of the CEQA standard goes to wildlife movement regardless of whether the movement is channeled by a corridor. A site such as the proposed project site is critically important for wildlife movement because it composes an increasingly diminishing area of open space within a growing expanse of anthropogenic uses, forcing more species of volant wildlife to use the site for stopover and staging during migration, dispersal, and home range patrol (Warnock 2010, Taylor et al. 2011, Runge et al. 2014). The project would cut wildlife off from stopover and staging opportunities, forcing volant wildlife to travel even farther between remaining stopover sites.

TRAFFIC IMPACTS TO WILDLIFE
The IS/MND neglects to address one of the project’s most obvious, substantial impacts to wildlife, and that is wildlife mortality and injuries caused by project-generated traffic. 797
22 Project-generated traffic would endanger wildlife that must, for various reasons, cross roads used by the project’s traffic (Photos 11-14). Vehicle collisions have accounted for the deaths of many thousands of amphibian, reptile, mammal, bird, and arthropod fauna, and the impacts have often been found to be significant at the population level (Forman et al. 2003). Across North America traffic impacts have taken devastating tolls on wildlife (Forman et al. 2003). In Canada, 3,562 birds were estimated killed per 100 km of road per year (Bishop and Brogan 2013), and the US estimate of avian mortality on roads is 2,200 to 8,405 deaths per 100 km per year, or 89 million to 340 million total per year (Loss et al. 2014). Local impacts can be more intense than nationally.

Photo 11. A Gambel’s quail dashes
across a road on 3 April 2021. Such
road crossings are usually successful,
but too often prove fatal to the animal.

Photo by Noriko Smallwood.

Photo 12. Great-tailed grackle walks
onto a rural road in Imperial County, 4
February 2022.

Photo 13. Mourning dove killed by
vehicle on a California road. Photo by
Noriko Smallwood, 21 June 2020.
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23 Photo 14. Raccoon killed on Road 31 just east of
Highway 505 in Solano County. Photo taken on
10 November 2018.

The nearest study of traffic-caused wildlife
mortality was performed along a 2.5-mile stretch
of Vasco Road in Contra Costa County, California.

Fatality searches in this study found 1,275
carcasses of 49 species of mammals, birds,
amphibians and reptiles over 15 months of
searches (Mendelsohn et al. 2009). This fatality
number needs to be adjusted for the proportion of
fatalities that were not found due to scavenger removal and searcher error. This adjustment is typically made by placing carcasses for searchers to find (or not find) during their routine periodic fatality searches. This step was not taken at Vasco Road (Mendelsohn et al. 2009), but it was taken as part of another study right next to Vasco Road (Brown et al. 2016). The Brown et al. (2016) adjustment factors were similar to those for carcass persistence of road fatalities (Santos et al. 2011). Applying searcher detection rates estimated from carcass detection trials performed at a wind energy project immediately adjacent to this same stretch of road (Brown et al. 2016), the adjusted total number of fatalities was estimated at 12,187 animals killed by traffic on the road. This fatality number translates to a rate of 3,900 wild animals per mile per year killed along 2.5 miles of road in 1.25 years. In terms comparable to the national estimates, the estimates from the Mendelsohn et al. (2009) study would translate to 243,740 animals killed per 100 km of road per year, or 29 times that of Loss et al.’s (2014) upper bound estimate and 68 times the Canadian estimate. An analysis is needed of whether increased traffic generated by the project site would similarly result in local impacts on wildlife.

For wildlife vulnerable to front-end collisions and crushing under tires, road mortality can be predicted from the study of Mendelsohn et al. (2009) as a basis, although it would be helpful to have the availability of more studies like that of Mendelsohn et al. (2009) at additional locations. My analysis of the Mendelsohn et al. (2009) data resulted in an estimated 3,900 animals killed per mile along a county road in Contra Costa County. Two percent of the estimated number of fatalities were birds, and the balance was composed of 34% mammals (many mice and pocket mice, but also ground squirrels, desert cottontails, striped skunks, American badgers, raccoons, and others),

52.3% amphibians (large numbers of California tiger salamanders and California redlegged frogs, but also Sierran treefrogs, western toads, arboreal salamanders, slender salamanders and others), and 11.7% reptiles (many western fence lizards, but also skinks, alligator lizards, and snakes of various species). VMT is useful for predicting wildlife mortality because I was able to quantify miles traveled along the studied reach 799
24 of Vasco Road during the time period of the Mendelsohn et al. (2009), hence enabling a rate of fatalities per VMT that can be projected to other sites, assuming similar collision fatality rates.

Predicting project-generated traffic impacts to wildlife The IS/MND predicts 178 truck daily trips, but offers no prediction of annual vehicle miles traveled (VMT). However, my review of VMT predictions at 26 other project sites yielded a mean 24.4 annual VMT/sf of floorspace. This rate would predict an annual VMT of 2,498,072. During the Mendelsohn et al. (2009) study, 19,500 cars traveled Vasco Road daily, so the vehicle miles that contributed to my estimate of non-volant fatalities was 19,500 cars and trucks × 2.5 miles × 365 days/year × 1.25 years = 22,242,187.5 vehicle miles per 12,187 wildlife fatalities, or 1,825 vehicle miles per fatality. This rate divided into my prediction of 2,498,072 annual VMT due to the project predicts 1,369 vertebrate wildlife fatalities per year. Assuming the projectgenerated traffic would destroy 40% of this number due to its urbanized surroundings, a more realistic prediction might be 548 vertebrate wildlife fatalities per year.

Operations over 50 years would accumulate 27,400 wildlife fatalities. It remains unknown whether and to what degree vehicle tires contribute to carcass removals from the roadway, thereby contributing a negative bias to the fatality estimates I made from the Mendelsohn et al. (2009) fatality counts.

Based on my assumptions and simple calculations, the project-generated traffic would cause substantial, significant impacts to wildlife. There is at least a fair argument that can be made for the need to prepare an EIR to analyze this impact. Mitigation measures to improve wildlife safety along roads are available and are feasible, and they need exploration for their suitability with the proposed project.

CUMULATIVE IMPACTS
The analysis in the IS/MND is flawed. According to the IS/MND (page 4.21-2), “The proposed project would be consistent with regional plans and programs that address environmental factors such as air quality, water quality, and other applicable regulations that have been adopted by public agencies with jurisdiction over the project for the purpose of avoiding or mitigating environmental effects.” But according to CEQA Guidelines §15064(h)(3), “a project’s incremental contribution to a cumulative impact can be found not cumulatively considerable if the project would comply with an approved plan or mitigation program that provides specific requirements that would avoid or substantially lessen the cumulative problem within the geographic area of the project.” And “When relying on a plan, regulation or program, the lead agency should explain how implementing the particular requirements in the plan, regulation or program ensure that the project’s incremental contribution to the cumulative effect is not cumulatively considerable.” The IS/MND specifies no particular regional plan it claims the project would be consistent with, and provides no explanation of how implementing the particular requirements of the unnamed regional plan(s) would minimize, avoid or offset the project’s contributions to cumulative impacts. 800
25 The analysis is flawed in another manner as well. According to the IS/MND (page 4.21- 3), “Because the project would not increase environmental impacts after mitigation measures are incorporated, the incremental contribution to cumulative impacts is anticipated to be less than significant with mitigation incorporated.” The IS/MND implies that cumulative effects are simply residual impacts of incomplete mitigation of project-level impacts. This notion is inconsistent with CEQA’s definition of cumulative impacts and how to analyze them. If this was CEQA’s standard, then cumulative effects analysis would be merely an analysis of mitigation efficacy. The analysis in the IS/MND is based on an assumption that other projects in the area adequately mitigated their impacts to wildlife, thereby leaving no impacts to accumulate. Again, this is not how CEQA defines cumulative impacts and it is inconsistent with the Precautionary Principle in risk analysis directed to rare or precious resources. Even where impacts may be individually limited, their “incremental effects of an individual project are significant when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.” (CEQA Guidelines §15064(h)(1)).

MITIGATION MEASURES
The proposed mitigation measures would provide little conservation benefit to wildlife.

Most are empty gestures, because they would provide benefits only if patches of habitat would be left in place, which is not the case with this project.

BIO-1: Pre-Construction Breeding Bird Survey
Preconstruction surveys should be performed for nesting birds, but not as a substitute for detection surveys. Preconstruction surveys are not designed or intended to reduce project impacts. Preconstruction surveys are only intended as last-minute, one-time salvage and rescue operations targeting readily detectable nests or individuals before they are crushed under heavy construction machinery. Because most special-status species are rare and cryptic, and because most bird species are expert at hiding their nests lest they get predated, most of their nests will not be detected by preconstruction surveys without prior support of detection surveys. Locating all of the nests on site would require more effort than is committed during preconstruction surveys.

Detection surveys are needed to inform preconstruction take-avoidance surveys by mapping out where biologists performing preconstruction surveys are most likely to find animals or their breeding sites. Detection surveys were designed by species experts, often undergoing considerable deliberation and review before adoption. Detection surveys often require repeated surveys using methods known to maximize likelihoods of detection. Detection surveys are needed to assess impacts and to inform the formulation of appropriate mitigation measures, because preconstruction surveys are not intended for these roles either. What is missing from the IS/MND, and what is in greater need than preconstruction surveys, is detection surveys consistent with guidelines and protocols that wildlife ecologists have uniquely developed for use with 801
26 each special-status species and for birds generally. What is also missing is compensatory mitigation of unavoidable impacts.

Following detection surveys, preconstruction surveys should be performed. However, an EIR should be prepared, and it should detail how the results of preconstruction surveys would be reported. Without reporting the results, preconstruction surveys are vulnerable to serving as an empty gesture rather than a mitigation measure. For these reasons, and because the salvage of readily detectable animals or their nests would not prevent the permanent loss of habitat, the proposed mitigation measure is not sufficient to reduce the project’s impacts to nesting birds to less than significant levels.

BIO-2: Worker Environmental Awareness Program
Whereas I concur that it is always helpful to educate construction workers about wildlife and wildlife care, worker awareness would not prevent the wholesale destruction of habitat on the project site. This measure provides very little conservation benefit to wildlife.

BIO-3: Construction Best Management Practices
I concur with best practices to minimize runoff contamination of fuel and cement, but these measures would accomplish little to nothing to mitigate impacts to wildlife. They might help to minimize impacts to wildlife off site, but they would not avoid nor compensate for impacts to wildlife on site.

MM BIO-4: Project Limits and Designated Areas
This measure is an empty gesture. The entire site would be converted into the proposed warehouse, impervious surfaces and minimal ornamental landscaping. Project limits and designated areas are meaningless, because the plan is for no habitat to remain anywhere on the project site.

MM BIO-5: General Vegetation and Wildlife Avoidance and Protection Measures
The best practices methods proposed in this measure are also meaningless. The entire site would be converted into the proposed warehouse, impervious surfaces and ornamental landscaping. The proposed measure would protect nothing.

RECOMMENDED MEASURES
The IS/MND proposes only preconstruction surveys and a few best management practices, but no compensatory mitigation for habitat loss or losses to project-generated traffic. A fair argument can be made for the need to prepare an EIR to formulate appropriate measures to mitigate project impacts to wildlife. Below are few suggestions of measures that ought to be considered in an EIR.
802
27 Detection Surveys: Protocol-level detection surveys should be implemented for special-status species, and most especially for San Bernardino kangaroo rat, coast horned lizard, and burrowing owl.

Habitat Loss: If the project goes forward, compensatory mitigation would be warranted for habitat loss. An equal area of similar soil/vegetation cover should be protected in perpetuity as close to the project site as possible.

Road Mortality: Compensatory mitigation is needed for the increased wildlife mortality that would be caused by the project-generated road traffic in the region. I suggest that this mitigation can be directed toward funding research to identify fatality patterns and effective impact reduction measures such as reduced speed limits and wildlife under-crossings or overcrossings of particularly dangerous road segments.

Compensatory mitigation can also be provided in the form of donations to wildlife rehabilitation facilities (see below).

Fund Wildlife Rehabilitation Facilities: Compensatory mitigation ought also to include funding contributions to wildlife rehabilitation facilities to cover the costs of injured animals that will be delivered to these facilities for care. Many animals would likely be injured by collisions with automobiles.

Thank you for your attention,
______________________
Shawn Smallwood, Ph.D.

REFERENCES CITED
Bishop, C. A. and J. M. Brogan. 2013. Estimates of avian mortality attributed to vehicle collisions in Canada. Avian Conservation and Ecology 8:2. http://dx.doi.org/10.5751/ACE-00604-080202.

Brown, K., K. S. Smallwood, J. Szewczak, and B. Karas. 2016. Final 2012-2015 Report Avian and Bat Monitoring Project Vasco Winds, LLC. Prepared for NextEra Energy Resources, Livermore, California.

CDFW (California Department of Fish and Wildlife). 2012. Staff Report on Burrowing Owl Mitigation. Sacramento, California.

City of Fontana. 2022. Initial Study and Mitigated Negative Declaration (IS/MND) Summit Avenue Warehouse Project. Prepared by UltraSystems Environmental.

Fontana, California.
803
28 Forman, T. T., D. Sperling, J. A. Bisonette, A. P. Clevenger, C. D. Cutshall, V. H. Dale, L.

Fahrig, R. France, C. R. Goldman, K. Heanue, J. A. Jones, F. J. Swanson, T.

Turrentine, and T. C. Winter. 2003. Road Ecology. Island Press, Covello, California.

Loss, S. R., T. Will, and P. P. Marra. 2014. Estimation of Bird-Vehicle Collision Mortality on U.S. Roads. Journal of Wildlife Management 78:763-771.

Mendelsohn, M., W. Dexter, E. Olson, and S. Weber. 2009. Vasco Road wildlife movement study report. Report to Contra Costa County Public Works Department, Martinez, California.

Rosenberg, K. V., A. M. Dokter, P. J. Blancher, J. R. Sauer, A. C. Smith, P. A. Smith, J. C.

Stanton, A. Panjabi , L. Helft , M. Parr, and P. P. Marra. 2019. Decline of the North American avifauna. Science 10.1126/science.aaw1313 (2019).

Runge, C. A., T. G. Martin, H. P. Possingham, S. G. Willis, and R. A. Fuller. 2014.

Conserving mobile species. Frontiers in Ecology and Environment 12(7): 395–402, doi:10.1890/130237.

Santos, S. M., F. Carvalho, and A. Mira. 2011. How long do the dead survive on the road? Carcass persistence probability and implications for road-kill monitoring surveys. PLoS ONE 6(9): e25383. doi:10.1371/journal.pone.0025383 Shuford, W. D., and T. Gardali, [eds.]. 2008. California bird species of special concern: a ranked assessment of species, subspecies, and distinct populations of birds of immediate conservation concern in California. Studies of Western Birds 1. Western Field Ornithologists, Camarillo, California.

Taylor, P. D., S. A. Mackenzie, B. G. Thurber, A. M. Calvert, A. M. Mills, L. P. McGuire, and C. G. Guglielmo. 2011. Landscape movements of migratory birds and bats reveal an expanded scale of stopover. PlosOne 6(11): e27054.
doi:10.1371/journal.pone.0027054.

UltraSystems. 2022. Biological resources evaluation for the warehouse at Sierra Avenue and Summit Avenue Project, Fontana, San Bernardino County, California.

Prepared for City of Fontana.

Warnock, N. 2010. Stopping vs. staging: the difference between a hop and a jump.

Journal of Avian Biology 41:621-626.

Yahner, R. H. 1982. Avian nest densities and nest-site selection in farmstead shelterbelts. The Wilson Bulletin 94:156-175.

Young, H. 1948. A comparative study of nesting birds in a five-acre park. The Wilson Bulletin 61:36-47.
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Tuesday, July 5, 2022
6:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Grover W. Taylor Council Chambers
Planning Commission
Cathline Fort, Chair
Raj Sangha, Vice Chair
Idilio Sanchez, Secretary
Matthew Gordon, Commissioner
Ralph Thrasher, Commissioner
Minutes

Page 1 of 1 ends

Fontana City CouncilJuly 26, 2022

Fontana City Council
July 26, 2022