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Exhibit C
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RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
IDIL West Valley Logistics Center, LP
c/o John Condas
Allen Matkins Leck Gamble Mallory & Natsis
LLP
2010 Main Street, 8th floor
Irvine, CA 92614
COVENANT AND AGREEMENT REGARDING OPEN SPACE DEDICATION AND
REIMBURSEMENT
This COVENANT AND AGREEMENT REGARDING OPEN SPACE DEDICATION AND REIMBURSEMENT (“Open Space Agreement”) is made this [day] of [month]_, 2022 by IDIL WEST VALLEY LOGISTICS CENTER, LP, a Delaware limited partnership (“Grantor”), the CITY OF FONTANA, a municipal corporation of the State of California (“Grantee”), and the WEST VALLEY LOGISTICS CENTER OWNERS’ ASSOCIATION, INC. (“OA”).
RECITALS
A. Grantor is the sole owner in fee simple of real property containin g approximately
71.27 acres, located within all or a portion of Assessors’ Parcel Numbers 0194-401-04, 0194-401- 05, 0194 -401-09, 0256 -131-05, 0256 -131-11, 0256 -131-12, 0256 -131-13, 0256 -131-14, 0256 - 131-15, 0256-014-36, 0256-014-38, 0256-014-39, 0256-014-41 (the West Valley Logistics Center “Property”). The Property is legally described on Exhibit “A” attached hereto and incorporated by this reference.
B. On March 26, 2019, Grantee approved Ordinance Nos. 1800, 1801, and 1802 approving Specific Plan Amendment No. 11-003 which created the West Valley Logistics Specific Plan.
C. On March 12, 2019, in accordance with the requirements of the California Environmental Quality Act, Grantee certified the West Valley Logistics Environmental Impact Report together with its mitigation and monitoring plan and statement of overriding considerations.
D. The West Valley Logistic Specific Plan and West Valley Logistic Environmental Impact Report (collectively “City Requirements ”) contain mitigation measures/specific plan requirements BIO-1 through BIO -7, and SP -B-1 through SP -B-3 which require, amongst other items, preservation of a minimum of 55.23 acres of the Open Space Area as natural open space, of which a minimum of 16 acres shall be restored to establish Riversidean S age Scrub ( “RSS”) habitat. The City Requirements’ mitigation measures/specific plan requirements are attached hereto as Exhibit “G.”
E. Grantor intends to grant to Grantee, as open space, a 68.90 -acre portion of the Property legally described on Exhibit “B-1” and depicted on Exhibit “B-2” attached hereto and 16498.40037\40399106.3
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incorporated by this reference (the “Open Space Area”). The proposed Grant Deed is attached hereto as Exhibit “F.”
F. The Open Space Area p rovides, among other things, compensatory mitigation for impacts associated with Grantor ’s West Valley Logistics Center industrial development project (“Project”) pursuant to requirements of the City Requirements, the terms and requirements of which are hereby incorporated by reference.
G. Contained within the Open Space Area will be a minimum of 21.20 acres of RSS Habitat which will be restored by Grantor and the OA. This 21.20 acres of RSS Habitat is depicted on Exhibit “B-2”. The 21.20 acres of RSS Hab itat is intended to satisfy the 16 -acre RSS restoration requirements contained within the City Requirements. Grantee ’s execution of this Open Space Agreement constitutes Grantee ’s confirmation that the provision of a minimum of
21.20 acres of RSS Habitat satisfies the 16-acre RSS restoration requirements contained in the City Requirements.
H. Grantor and Grantee desire that the Open Space Area be maintained in the manner described herein; although Grantee is willing and able to accept conveyance of the Ope n Space Area, it is expressly understood and agreed that Grantee does not have the resources to restore, maintain and take all other actions reasonable and incidental to ownership of the Open Space Area in fee and that Grantor is expressly willing and able to provide those resources on an ongoing, long-term basis, in perpetuity, in the manner described herein; I. To be recorded before, or concurrently with, the recordation of this Open Space Agreement are the Declaration of Protective Covenants, Conditions, Restrictions, Reservations and Easements for West Valley Logistics Center (“CCRs”) made by Grantor for purposes enumerated in those CCRs [dated ____- and filed______]; J. This Open Space Agreement and associated Grant Deed is designed to ensure open space and restoration requirements contained within the City requirements are met and, further, to memorialize the ongoing, long -term provision of funding to Grantee for the restoration and maintenance in perpetuity of the Open Space area . Nothing in this Open Space Agreement is intended to conflict with those mitigation measures and permitting requirements provided within the City Requirements. Additional clearances, permits, and/or approval s (collectively “Agency Approvals”) may be required by the Santa Ana Regional Water Quality Control Board (“SARWQCB”), and California Department of Fish and Wildlife ( “Department”). The SARWQCB and Department are sometimes referred to herein as an “Agency” and collectively the “Agencies.”
K. Consistent with the terms and conditions of this Open Space Agreement, the Open Space Area is and will remain in a Natural Condition as defined herein and is intended to be preserved in its natural, scenic, open condition to maintain its ecological values as required by mitigation measures/specific plan requirements BIO-1 through BIO-7, and SP-B-1 through SP-B- 3 described in the City Requirements . These City requirements include a requirement to restore
5.2 acres of land with RSS Habitat immediately following the construction of a water pipeline. (collectively, “Conservation Values”). Portions of the Open Space Area will not be subject to the Conservation Values ( “Unrestricted Open Space ”), and may be used for other open space 16498.40037\40399106.3
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purposes, as set forth herein. The Unrestricted Open Space is depicted in Exhibit “B-2”. All provisions in this Open Space Agreement regarding (i) the need to comply with the “Conservation Values”, or (ii) the need to maintain and preserve the Open Space Area in a “Natural Condition” do not apply to the Unrestricted Open Space.
L. Grantor has created the OA, which is obligated to undertake all maintenance and restoration obligations specified in this Open Space Agreement, to insure that all of the Conservation Values will be achieved and maintained and that ongoing, long -term resources are provided to Grantee, in perpetuity and which is also designated as the not -for-profit corporation with powers and responsibilities under the CCRs.
M. SARWQCB is the regional agency charged with protecting the quality of waters by formulating and adopting water quality plans for specific ground or surface water bodies and by prescribing and enforcing requirements on domestic and water discharges pursuant to Section 401 of the Clean Water Act and Section 13260 of the State of California Water Code.
N. The Department is the State agency charged with regulatory authority over conservation, protection, and management of fish, wildlife, native plants and the habitat necessary for biologically sustainable populations of those species pursuant to Section 1602 of the California Fish and Game Code.
COVENANTS, TERMS, CONDITIONS AND RESTRICTIONS
1. Open Space Agreement . In consideration of the above recitals and the mutual covenants, terms, conditions, and restrictions contained herein, Grantor agrees (i) to voluntarily grant and convey to Grantee and its successors or assigns, as appropriate, fee simple absolute title in perpetuity over the Open Space Area of the nature and character and to the extent hereinafter set forth, as described in the Grant Deed attached hereto as Exhibit “F”; and (ii) to include in the CCRs an express covenant that owners of each Site (defined in the CCRs) are directly liable to Grantee for any breach of this Open Space Agreement by Grantor or OA and that Grantee may maintain a private right of action, in law or equity, to enforce this Open Space Agreement against each Site (defined the CCRs) owner. This Open Space Agreement shall run with the land and be binding on Grantor’s successors and assigns, and other occupiers or users of the Open Space Area or any portion of it. All references herein to “Grantor” shall mean and refer to Grantor, and its successors and assigns; and all references herein to “Grantee” shall mean and refer to Grantee, and its successors and assigns.
(a) Purpose. The purpose of this Open Space Agreement is to ensure the Open Space Area, aside from the Unrestricted Open Space, will be managed and preserved in a Natural Condition, as defined herein, in perpetuity and to prevent any use of the Open Space Area that will materially impair or interfere with the Conservation Values of the Open Space Area, and to define responsibilities between all parties to the Open Space Agreement (the “Purpose”) and including continuing requirements upon OA for costs and fees associated with restoration and maintenance, including, without limitation, those related to a ny permitting for the Open Space Area and those duties contained in Section 5 of this Agreement. The term “Natural Condition” shall mean the condition of the Open Space Area, not including the Unrestricted Open Space, as it exists at the time this Open Sp ace Agreement is executed, as well as future enhancements or changes to the 16498.40037\40399106.3
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Open Space Area that occur directly as a result of: (i) activities described in Sections 4-7 herein including restoration; and (ii) changes occurring over time not caused by a vio lation of this Open Space Agreement. If a controversy arises with respect to the present Natural Condition of the Open Space Area, Grantor or Grantee, shall not be foreclosed from utilizing any and all other relevant documents, surveys, photographs or oth er evidence or information to assist in the resolution of the controversy.
(b) Grantor’s Representations . To Grantor ’s actual knowledge, Grantor represents and warrants that there are no structures or improvements existing on the Open Space Area as of the dat e hereof. Grantor further represents and warrants that to Grantor ’s actual knowledge there are no other previously granted easements existing on the Open Space Area that interfere or conflict with the Purpose of this Open Space Agreement as evidenced by t he Title Report(s) attached at Exhibit “C”. The present Natural Condition is evidenced in part by the depiction of the Open Space Area attached on Exhibit “D”, Grantor has delivered further evidence of the present Natural Condition to Grantee consisting of (1) a color aerial photograph of the Open Space Area at an appropriate scale taken as close in time as possible to the date this Open Space Agreement is executed; (2) on -site color photographs showing all man -made improvements or structures (if any) and the major, distinct natural features of the Open Space Area. “Grantor’s actual knowledge ” shall mean the present, actual, personal knowledge of Stephen Hollis, Grantor’s Vice President of Construction.
2. Grantee’s Rights. Grantee may, but is expressly not required to, exercise any and all rights associated with and incidental to property ownership in fee, except as may be limited by this Open Space Agreement. Notwithstanding the foregoing, to accomplish the Purpose of this Open Space Agreement, Grantor and Grantee agree that Grantee will possess the following rights and assume only the following delineated obligations pursuant to the grant of the Open Space Area:
(a) Protect Conservation Values . The right to take all action as may be necessary in order to preserve and protect the Conservation Values of the Open Space Area; (b) Enforcement. To prevent any activity on or use of the Open Space Area that is inconsistent with the Purpose of this Open Space Agreement. Such right of enforcement shall include the right to enforcement by any means, including, without limitation, injunctive relief.
Nothing contained herein shall obligate Grantee to undertake an enforcement action; and (c) Appurtenant Rights. All mineral, air, and water rights necessary to protect and to sustain the biological resources of the Open Space Area, provided that any exercise of such rights by Grantee shall not result in conflict with such Conservation Values.
3. Prohibited Uses. No use shall be made of the Open Space Area, and no activi ty thereon shall be permitted that is, or is likely to become inconsistent, with the City Requirements or the Purpose of this Open Space Area . Without limiting the generality of the foregoing, the following uses are expressly prohibited on the Open Space Area, excluding the Unrestricted Open Space:
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(a) Un-seasonable Watering . Un-seasonable or supplemental watering, except for permissible habitat enhancement activities and as necessary for preventative and emergency fire prevention;
(b) Chemicals. Use of herbici des, pesticides, biocides, fertilizers, or other agricultural chemicals or weed abatement activities, except in connection with permissible weed abatement activities necessary to control or remove invasive or exotic plant species or as allowed in the LTMP (defined below);
(c) Removal of Vegetation. Removing, destroying, or cutting of trees, shrubs or other vegetation, except: (i) as may be necessary to prevent or treat disease, (ii) to control invasive species which threaten the Conservation Values, (iii) as may be necessary to maintain recreational trails, (iv) pursuant to or consistent with the LTMP, and (v) to the extent required by the fire department as fire preventative measures and/or to protect structures and other improvements from encroaching fire, i ncluding (1) a firebreak (defined as a strip of plowed or cleared land made to check the spread of a fire), or (2) the trimming or removal of brush; (d) Off-Road Vehicles. The use of any off-road motorized vehicle, except (i) on existing roadways, or (ii) as may be necessary to implement activities under the LTMP; (e) Agricultural Uses . Grazing or other agricultural activity of any kind, except for grazing for purposes of weed control and habitat enhancement; (f) Recreational Activities. Recreational activities including, but not limited to, horseback riding, biking, paved public trails, hunting or fishing; (g) Subdivision. Any legal or de facto division, subdivision or partitioning of the Open Space Area;
(h) Construction. Construction of any structure or improvement including but not limited to, buildings, maintenance access roads, drainage facilities, walls or future easements, except for signage that indicates “Natural Area Open Space,” “Protected Natural Area,” or similar descriptions that inform persons of the natu re and restrictions on the Open Space Area.
Construction of any facilities outside of, but in close proximity to the Open Space Area shall be sited in a manner to minimize, to the extent feasible, any indirect impacts to the Conservation Values;
(i) Dumping. Dumping soil, trash, ashes, refuse, waste, bio-solids, garbage or any other material;
(j) Planting. Planting, gardening, or introduction or dispersal of non -native plant or animal species;
(k) Mining. Excavating, dredging, mining, drilling, removing, or exploring for or extraction of minerals, loam, gravel, soil, rock, sand, or other material on or below the surface of the Open Space Area;
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(l) Alteration of Topography. Altering the general topography of the Open Space Area, or altering any natural watercourse, except for topographic or surface elevation alterations consistent with the terms and conditions of the Agency Approvals or LTMP; (m) Transfer of Appurtenant Rights. Any transfer of mineral or water rights that are appurtenant to the Open Space Area; or
(n) Other Incompatible Uses . Any and all other activit ies and uses which Grantee determines may adversely affect the purpose of this Open Space Agreement.
Grantor and Grantee acknowledge that, in view of the perpetual nature of this Open Space Agreement, they are unable to foresee all potential future land uses, future technologies, and future evolution of the land and other natural resources, and other future occurrences affecting the Purpose of this Open Space Agreement. Grantee shall have the right to determine whether any proposed use or improvement is consistent with the Purpose of this Open Space Agreement.
4. Grantor’s Duties . Grantor shall perform all initial work as described in the “Habitat Restoration and Monitoring Plan and Long -Term Management Plan for Impacts Associated with the West Valley Logistics Center Development Project” prepared by Glenn Lukos Associates, Inc. and dated May 2022, attached hereto as Exhibit “E” (“LTMP”) prepared by Glenn Lukos Associates, the terms of which are hereby incorporated by reference. If obligations specified in this Agreement require permits or clearances by or from Agencies or other governmental entities, including, but not limited to, the United States Army Corps of Engineers , Grantor shall be responsible for obtaining said permitting or clearances, as further described herein. Upon Grantor’s conveyance of the Property to the OA, Grantor’s obligations specified in this Section 4 shall be assumed by the OA, and Grantor shall be released from the obligations specified in this Section 4.
5. OA’s Duties. OA, its successors and assigns shall be responsible for the following, with review and approval by Grantee:
(a) City Sign Off. Undertake all obligations, other than Grantor’s obligations specified in Section 4 of this Open Space Agreement, pursuant to the Cit y Regulations and complete the habitat restoration described in the LTMP; this obligation is continuing and nontransferable, and shall be the obligation of OA. OA shall provide Grantee with copies of all its reports required in the LTMP;
(b) Non-Native Plant Species Removal. OA shall regularly control all non - native invasive annual and perennial weed species, pursuant to the LTMP ’s performance standards, the terms of which are hereby incorporated by reference; (c) Restoration. Restoration of such areas or features of the Open Space Area that may be damaged by any action or any use that is inconsistent with the Purpose of this Open Space Agreement;
(d) LTMP Implementation. Implement the activities identified or described as to be performed by the OA or “land manager” under the LTMP; 16498.40037\40399106.3
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(e) Adaptive Management. OA or Grantee may initiate adaptive management activities within the Open Space Area pursuant to the LTMP; (f) Trespassing. In coordination with Grantee, undertake all reasonable actions to deter the unlawful entry and trespass onto the Open Space Area using all reasonable methods available to OA;
(g) Signage. Prior to conveyance of the Open Space Area, OA shall install signage indicating “Natural Area Open Space”, “Protected Natural Area”, or similar description.
OA shall replace any missing or damaged signs on an annual basis at its sole cost; (h) Fencing and Access . OA shall install and maintain perimeter fencing around the Ope n Space Area and provide Grantee with legal access. OA shall notify and coordinate with Grantee regarding requested access by any public agency or private entity. OA shall provide Grantee with a set of reproducible keys to any gates without charge. If the lock(s) to the gates are replaced, OA shall provide a new set of reproducible keys to Grantee without charge within seven (7) days of replacement of such lock(s). OA shall demonstrate that the fencing and/or natural barriers and signage shall be sufficient and adequate to protect the Open Space Area from unauthorized access in perpetuity;
(i) Trash Removal. OA shall, on a semi -annual basis, or more often, if so required by Grantee, remove trash and debris, as required by the LTMP; (j) Compliance Monitoring. To have legal access to enter upon the Open Space Area and Property at reasonable times in order to monitor compliance with the terms of this Open Space Agreement and LTMP; provided, that nothing contained herein shall be construed as granting the public any right of access to the Open Space Area, outside of the Unrestricted Open Space. Reports prepared in furtherance of compliance monitoring shall be made available for review and evaluation by Grantee;
(k) Cooperate with Grantee; Other Duties. OA shall cooperate with Grantee, its successors or assigns in the protection of the Conservation Values. OA shall retain responsibility for addressing any threats to the Open Space Area identified by Grantee, such as any water quality, trash, potential flooding, upstream detention basin maintenance, slope failure or storm drain damage which would impair the integrity and function of the restoration area and slopes within the Open Space Area during implementation of the LTMP and in perpetuity; (l) Application(s) for Required Permitting. Assuming that OA, rather than Grantor, processes all permits and clearances specified in this subsection, OA shall be responsible for application and submission of any and all permitting that may be required by Agencies or other governmental entities, including, but not limited to, the United States Army Corp of Engineers. Responsibilities associated with application and submission include, but are not limited to, the payment of application fees and costs and undertaking all tasks required by and for the applicable permit; and
(m) Other Improvements. In coordination with Grantee and in a manner consistent with this Open Space Agreement, OA shall assume responsibility for all long -term maintenance of other improvements if present within the Open Space Area or which directly impact the Open 16498.40037\40399106.3
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Space Area, including, but not limited to slope stabilization, v -ditches, basin inlets and outlets, erosion control, fencing, gates and public infrastructure. All maintenance activities for other improvements shall be restricted to the smallest area possible. Any restoration work that is required to the Open Space Area as a result of the other improvements, or the maintenance thereof, shall be OA’s responsibility pursuant to the provisions of Section 12(b) herein. OA shall provide Grantee at least two (2) weeks’ notice prior to any entry within the Open Space Area to maintain the other improvements.
6. Grantee’s Duties . Grantee shall annually, and, at other times in its sole and absolute discretion, visit the Open Space Area, excluding the Unrestricted Open Space, maintain records of such monitoring visits and, at its sole and absolute discretion, defend this Open Space Agreement in the event of a violation or challenge. All reasonable costs incurred by Grantee in undertaking these duties (including staff time and/or consultant fees, undertaking visits and/or preparation of records) will be subject to reimbursement by OA, pursuant to Section 7 below (Reimbursement for Grantee ’s Costs). Grantee shall pro vide documentation to OA of all such costs as a precondition to Grantee’s receiving reimbursement.
7. Reimbursement for Grantee’s Costs . OA shall reimburse Grantee for any and all fees, costs and liabilities associated with Section 5 (OA Duties) and Section 6 (Grantee Duties), to the extent Grantee expends any funds to ensure compliance with this Section, and any other reasonable costs and expenses borne by Grantee by virtue of its ownership in fee of the Open Space Area, whether or not delineated herein. Costs to be reimbursed shall include Grantee’s staff time, based upon its standard hourly rate at the time of such violation and any independent third party consultants which Grantee retains.
(a) To assure Grantee that Grantee Costs will be covered, OA shall be required to provide Grantee with an advance in the amount of $25,000 (“ Initial Advanced Amount ”) which shall be maintained in a separate bank account, and from which Grantee shall have the right to draw down and pay itself (“Advanced Amount Account”), with documentation to be provided to OA no later than thirty (30) days prior to any draw. If no objection is made by OA within those thirty (30) days or if no other or additional funding is directly provided to Grantee by OA for Grantee Costs, Grantee shall draw down the requested amount . Grantor or OA shall provide the initial Advanced Amount within thirty (30) days from when Grantor conveys the Open Space Area to Grantee.
(b) Grantee may further use, apply or retain all or any portion of Advanced Amount Account for the payment of any expense obligations or other charge in default; or to reimburse or compensate Grantee for any liability, loss, cost, expense (including attorneys' fees) or damage which Grantee may suffer or incur by reason of OA or Grantor's breach or default of this Open Space Agreement.
(c) Annually, Grantee shall reconcile the prior year’s expenses, and provide an invoice to OA for the amount owed, if any. OA shall pay such amount within 30 days of invoice.
Upon such invoice, Grantee shall also provide an estimate of the Section 5 and 6 expenses it anticipates in the following year to the OA, and if such expenses have increased, OA shall deposit additional monies with Grantee as an increased deposit within the same 30 day period, so that the 16498.40037\40399106.3
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total amount of the deposit shall at all times bear the same ratio to the annual estimated Expense obligations as the initial deposit bears to the initial Expense obligations set forth above. (d) Grantee shall not be required to keep the Advanced Amount Ac count separate from its general accounts and OA shall not be entitled to any interest or other increment earned thereon. No part of the Advanced Amount Account shall be considered to be prepayment for any sums to be paid by OA under this Open Space Agreement. For so long as Grantee owns the property, the Advanced Amount Account shall be in force. No trust relationship is created herein between Grantee and OA with respect to the deposit. If OA fails to pay any such invoice or increased deposit, such past due amounts shall bear interest at the maximum legal interest rate or 10%, whichever is less.
(e) Should the Advanced Amount Account fall below fifty percent (50%) of the initial or current Advanced Amount, as applicable, Grantee shall make a demand to OA to fund the account to the return to the initial Advanced Amount. Within thirty (30) days of the receipt of a demand from Grantee, OA shall deposit such amount as necessary fund the Advance Amount Account. In the event that OA does not fund the Advance Amount Account as required by this Agreement, Grantee may pursue any and all available remedies, as provided for in (f). (f) In the event that Grantor and/or OA do not perform their respective duties under Sections 4 and 5 of this agreement, Grantee may pursue all legal remedies against OA or Grantor or their successors in interest (subsequent property owners), including the right to pursue said subsequent property owners and impose liens upon such property interests as provided in the CC&Rs dated ____ and recorded ____ , to the extent not prohibited by law. (g) Notwithstanding any other remedies provided in this Open Space Agreement or any other provisions contained in the CCRs, Grantor and/or OA agree that Grantee shall be entitled to seek a preliminary injunction or other equitable remedy to require the OA: (i) to pay any and all costs and expenses required by this Open Space Agreement, whether or not Grantor or OA has received assessments due and payable by each Site (defined in CCRs) owner for payment of costs and expenses due under this Open Space Agreement; (ii) to compel payment of assessments under its statutory right of assessment against any Site (defined in CCRs) owner for all costs and expenses r equired by this Open Space Agreement ; and (iii) to file a lien against some or all Sites (defined in the CCRs), no later than thirty (30) days from the Grantee’s request for exercise of OA rights.
8. Reserved Rights. Grantor and OA reserve the following rights, consistent with, the Purpose of this Open Space Agreement:
(a) Access. Reasonable access through the Open Space Area and Property to adjacent land over existing roads, or to perform obligations or other activities permitted by this Open Space Agreement, including Grantor’s obligations to perform initial work as specified in the LTMP;
(b) Habitat Enhancement Activities . Creation and enhancement of native plant communities not associated with LTMP activities, including the right to plant native t rees and shrubs, for purposes of preventing erosion and reestablishing native vegetation, or to 16498.40037\40399106.3
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revegetate areas that may be damaged (whether by permitted activities or by the acts of persons wrongfully damaging the Natural Condition of the Open Space Area ). Prior to any habitat enhancement activities not part of the LTMP, OA shall have a Biological Monitor (as hereinafter defined) submit detailed plans to Grantee for review and approval. Habitat enhancement activities shall not be in direct or potential conflict with the preservation of the Natural Condition of the Open Space Area or the Purpose of this Open Space Agreement and shall be performed in compliance with all applicable statutes, regulations, and permitting requirements. The term “Biological Monitor” shall mean a qualified third party consultant approved by Grantee, with successful habitat restoration experience and knowledge of resources in the County in which the Property is located, and expertise in the field of biology or a related field. Grantee may, in its sole discretion, choose to retain an independent biologist to review all documentation prepared by the Biological Monitor. OA shall be responsible to reimburse Grantee for staff cost associated with review and determination as to whethe r to retain an independent biologist and all such costs incurred by the independent biologist. Grantee shall provide documentation to OA as a precondition to reimbursement;
(c) Vegetation, Debris, and Exotic Species Removal. Removal or trimming of vegetation downed or damaged due to natural disaster, removal of man -made debris, removal of parasitic vegetation (as it relates to the health of the host plant) and removal of non -native or exotic plant or animal species; provided that any such activities shall be undertaken only after obtaining Grantee’s approval, based upon detailed plans submitted to Grantee. Vegetation, debris, and exotic plant species removal shall not be in direct or potential conflict with the preservation of the Natural Condition of the Open Space Area or the Purpose of this Open Space Agreement and shall be performed in compliance with all applicable laws, regulations, and permitting requirements.
9. Enforcement.
(a) Notice of Violation. The term “Party” means Grantor, Grantee, or OA, as the case may be. In the event that a Party is in violation of the terms of this Open Space Agreement or in the event that a violation is threatened, the non-violating Party and/or third party beneficiaries may demand the cure of such violation. In such a case, the non-violating Party and/or third party beneficiaries shall issue a written notice to the violating Party (hereinafter “Notice of Violation”) informing the violating Party of the actual or threatened violations and demanding cure of such violations.
(b) Time to Cure. The violating Party shall cure the noticed violation within thirty (30) days of receipt of said written Notice of Violation. If said cure reasonably requires more than thirty (30) days, the violating Party shall, within the thirty (30) day period, submit to the non-violating Party and/or third party beneficiaries, as the case may be, for review and approval a plan and time schedule to diligently complete a cure. The violating Party shall complete such cure in accordance with the approved plan. If the violating Party disputes the Notice of Violation, it shall issue a written notice of such dispute (hereinafter “Notice of Dispute”) to the appropriate Party within thirty (30) days of receipt of written Notice of Violation. (c) Failure to Cure. If the violating Party fails to cure the violation within the time period(s) described in Section 9(b), above, or Section 9(d)(2), below, the non-violating Party 16498.40037\40399106.3
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and/or third party beneficiaries may bring an action at law or in equity in a court of compete nt jurisdiction to enforce compliance by the violating Party with the terms of this Open Space Agreement. In such action, the non-violating Party and/or third party beneficiaries may:
(i) Damages. Recover any damages to which they may be entitled for violation by the violating Party of the terms of this Open Space Agreement or for any injury to the Conservation Values of the Open Space Area. The non -violating Party shall first apply any damages recovered to the cost of undertaking any corrective action on the Open Space Area. Prior to implementation of any remedial or restorative actions pursuant to this paragraph, the Agencies shall be consulted.
(ii) Enjoin the Violation Enjoin the violation by temporary or permanent injunction without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies.
(iii) Equitable Relief. Obtain other equitable relief, including, but not limited to, the restoration of the Open Space Area to the condition in which it existed prior to any such violation or injury. This remedy is expressly available notwithstanding the ability to claim damages as provided for in subdivision (i).
(d) Notice of Dispute.
(i) Meet and Confer. If the violating Party provides the non-violating Party and/or third party b eneficiaries with a Notice of Dispute, as provided herein, the non - violating Party and/or third party beneficiaries shall meet and confer with the violating Party at a mutually agreeable place and time, not to exceed thirty (30) days from the date that the non- violating Party and/or third party beneficiaries receive the Notice of Dispute. The non-violating Party and/or third party beneficiaries shall consider all relevant information concerning the disputed violation provided by the violating Party and sha ll determine whether a violation has in fact occurred and, if so, whether the Notice of Violation and demand for cure issued by the non - violating Party and/or third party beneficiaries is appropriate in light of the violation. (ii) Notice of Determination. If, after reviewing the violating Party ’s Notice of Dispute, conferring with the violating Party, and considering all relevant information related to the violation, the non -violating Party and/or third party beneficiaries determine that a violation has occurr ed, the non -violating Party and/or third party beneficiaries shall give the violating party notice of such determination in writing. Upon receipt of such determination, the violating Party shall have fifteen (15) days to cure the violation. If said cure reasonably requires more than fifteen (15) days, the violating Party shall, within the fifteen (15) day period, submit to the non-violating Party and/or third party beneficiaries for review and approval a plan and time schedule to diligently complete a cure. The violating Party shall complete such cure in accordance with the approved plan.
(e) Conflicting Notices of Violation.
(i) Notice of Conflict. If any Party receives a Notice of Violation that is in material conflict with one or more prior written Notices of Violation that have not yet been cured by the Party (hereinafter “Active Notice(s) of Violation ”) such that the conflict makes it 16498.40037\40399106.3
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impossible for the Party to carry out the cure consistent with all prior Active Notices of Violation, the Party shall give wr itten notice (hereinafter “Notice of Conflict ”) to the non -violating Party and/or third party beneficiaries issuing the later, conflicting Notice(s) of Violation. The Party shall issue said Notice of Conflict to the appropriate non-violating Party and/or third party beneficiaries within fifteen (15) days of the receipt of each such conflicting Notice of Violation. A valid Notice of Conflict shall describe the conflict with specificity, including a description of how the conflict makes compliance with all Active Notices of Violation impossible. (ii) Revised Notice of Violation . Upon issuing a valid Notice of Conflict to the appropriate non-violating Party and/or third party beneficiaries, as described above, the violating Party shall not be required to carry out the cure described in the conflicting Notice or Notices of Violation until such time as the non -violating Party responsible for said conflicting Notice(s) of Violation issue(s) a revised Notice of Violation that is consistent with prior Active Notices of Violation. Upon receipt of a revised, consistent Notice of Violation, the violating Party shall carry out the cure recommended in such notice within the time period(s) described in Section 9(b) above. Notwithstanding Section 9(f), failure to cure within said time period(s) shall entitle the non-violating Party to the remedies described in Section 9(c) and Section 9(g). (iii) Waiver of Notice of Conflict. The failure of the violating Party to issue a valid Notice of Conflict within thirty (30) days of receipt of a conflicting Notice of Violation shall result in a waiver of the violating Party’s ability to claim a conflict. (f) Immediate Action . In the event that circumstances require immediate action to prevent or mitigate significant damage to the Conservation Va lues of the Open Space Area, the Party seeking enforcement pursuant to Section 9(a) above may immediately pursue all available remedies, including injunctive relief, available pursuant to both this Open Space Agreement and state and federal law after giving the violating Party at least twenty four (24) hours’ written notice before pursuing such remedies. So long as such twenty -four (24) hours’ notice is given, the non-violating Party may immediately pursue all available remedies without waiting for the expiration of the time periods provided for cure or Notice of Dispute as described in Section 9(b). The written notice pursuant to this paragraph may be transmitted to the violating Party by facsimile and shall be copied to the other Party. The rights of the non-violating Party and/or third party beneficiaries under this paragraph apply equally to actual or threatened violations of the terms of this Open Space Agreement. The violating Party agrees that the remedies at law for any violation of the terms of t his Open Space Agreement are inadequate and that the non -violating Party and third party beneficiaries shall be entitled to the injunctive relief described in this section, both prohibitive and mandatory, in addition to such other relief to which they may be entitled, including specific performance of the terms of this Open Space Agreement, without the necessity of proving either actual damages or the inadequacy of otherwise available legal remedies. The remedies described in this Section 9(f) shall be cumulative and shall be in addition to all remedies now or hereafter existing at law or in equity, including but not limited to, the remedies set forth in Civil Code Section 815, et seq., inclusive.
(g) Third Party Costs of Enforcement. Any out of pocket costs incurred by a Party in enforcing the terms of this Open Space Agreement against another Party, including, but not limited to, legal fees, costs of suit, and any costs of restoration necessitated by a Party ’s 16498.40037\40399106.3
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violation or negligence under the terms o f this Open Space Agreement shall be borne by the violating Party (“Enforcement Costs”).
(h) Enforcement Discretion. Enforcement of the terms of this Open Space Agreement by a Party shall be at the discretion of the Party, and any forbearance by such Party to exercise its rights under this Open Space Agreement in the event of any breach of any term of the Open Space Agreement by a Party or any subsequent transferee shall not be deemed or construed to be a waiver by the non -violating Party of such terms or of any subsequent breach of the same or any other term of this Open Space Agreement or of any of the rights of the non-violating Party under this Open Space Agreement. No delay or omission by the non-violating Party in the exercise of any right or remedy up on any breach by the violating Party shall impair such right or remedy or be construed as a waiver. Further, nothing in this Open Space Agreement creates a non - discretionary duty upon the non -violating Party and/or third party beneficiaries to enforce its provisions, nor shall deviation from these terms and procedures, or failure to enforce its provisions give rise to a private right of action against the non-violating Party and/or third party beneficiaries by any third parties.
(i) Acts Beyond Grantor’s or OA’s Control. Nothing contained in this Open Space Agreement shall be construed to entitle or require Grantee to bring any action against Grantor or OA for any injury to or change in the Open Space Area resulting from:
(i) Natural Cause . Any natural cause beyo nd Grantor ’s or OA ’s control, including without limitation, fire not caused by Grantor or OA, flood, storm, drought, disease, pestilence, and earth movement;
(ii) Prudent Acts. Any prudent action taken by Grantor or OA under emergency conditions to prevent, a bate, or mitigate significant injury to the Open Space Area resulting from such causes; provided that once the emergency has abated, Grantor or OA promptly takes all reasonable and necessary actions required to restore the Open Space Area to the condition it was in immediately prior to the emergency;
(iii) Third Parties. Acts by Grantee, an Agency or a third party that are beyond Grantor’s or OA’s control.
Notwithstanding the foregoing, Grantor or OA, as applicable, must obtain any applicable governmental permits and approvals for any emergency activity or use permitted by this Open Space Agreement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders or requirements. OA shall be responsible for taking all actions, at its sole expense, to restore the Open Space Area to the condition it was in immediately prior to the occurrence(s) specified in this Section 8(i).
(j) Acts Beyond Grantee’s Control . Nothing contained in this Open Space Agreement shall be construed to entitle Grantor or OA to bring any action against Grantee for any injury to or change in the Open Space Area resulting from:
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(i) Natural Cause . Any natural cause beyond Grantee ’s control, including without limitation, fire not caused by Grantee, flood, storm, drought, disease, pestilence, and earth movement;
(ii) Prudent Acts . Any prudent action taken by Grantee under emergency conditions to prevent, abate, or mitigate significant injury to the Open Spa ce Area resulting from such causes, provided that once the emergency has abated, Grantee promptly takes all reasonable and necessary actions required to restore the Open Space Area to the condition it was in immediately prior to the emergency;
(iii) Third Parties. Acts by Grantor, OA, an Agency or a third party that are beyond Grantee’s control.
Notwithstanding the foregoing, if Grantee, rather than OA takes action pursuant to this Section 9(j), Grantee must obtain any applicable governmental permits and approvals for any emergency activity or use permitted by this Open Space Agreement, and undertake any activity or use in accordance with all applicable federal, state, local and administrative a gency statutes, ordinances, rules, regulations, orders or requirements.
10. Costs and Liabilities.
(a) OA Responsible. OA retains all responsibilities and shall bear all costs and liabilities of any kind related to the operation, upkeep, and maintenance of the Pr operty (which includes the Open Space Area). OA agrees that Grantee shall have no duty or responsibility for the operation, upkeep, or maintenance of the Property, the monitoring of hazardous conditions thereon, or the protection of Grantor, the public or any third parties from risks relating to conditions on the Property. Grantor remains solely responsible for obtaining any applicable governmental permits and approvals for any activity or use permitted by this Open Space Agreement, and any activity or us e shall be undertaken in accordance with all applicable federal, state, local and administrative agency statutes, ordinances, rules, regulations, orders and requirements. (b) Indemnification. Grantor or OA shall hold harmless, indemnify, and defend Grantee, with counsel of Grantee ’s choosing and at Grantor ’s or OA ’s expense, and its officers, officials, employees, agents, and contractors and the heirs, personal representatives, successors, and assigns of each of them (collectively ‘‘Indemnified Parties’’) from and against all liabilities, penalties, costs, losses, damages, expenses, causes of action, claims, demands, or judgments, including, without limitation, reasonable attorneys ’ fees arising from or in any way connected with (1) this Open Space Agreement, (2) injury to or the death of any person, or physical damage to any property, resulting from any act, omission, condition, or other matter related to or occurring on or about the Property, regardless of cause, except to the extent of the adjudicat ed proportionate fault of any of the Indemnified Parties. Grantor or OA shall reimburse the Indemnified Parties for any and all legal expenses and costs incurred by each of them in connection therewith or in enforcing the indemnity herein provided. Grant or or OA shall also reimburse Indemnified Parties for the cost of any settlement paid by City or its officials, employees, agents and volunteers as part of any such claim, suit, action or other proceeding. Such reimbursement shall include payment attorney’s fees and costs, including expert witness fees. Grantor’s or OA’s obligation to indemnify shall survive expiration or termination of this Agreement, and shall not be 16498.40037\40399106.3
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restricted to insurance proceeds, if any, received by the Indemnified Parties. Grantor’s obligations established in this section 10(b) shall automatically and permanently terminate upon Grantor ’s conveyance of the Open Space Area to OA.
11. Subsequent Transfers.
(a) By Grantee. The Open Space Area is transferable by Grantee. Grantee shall record the assignment in the Official Records of the County in which the Property is located.
Upon any dissolution of Grantee, all of Grantee’s rights and obligations created in this Open Space Agreement shall automatically transfer to the County of San Bernardino. (b) By Grantor. The covenants, conditions, and restrictions contained in this Open Space Agreement are intended to and shall run with the land and bind all future owners of any interest in the Open Space Area. Grantor agrees to (i) incorporate by refer ence to the title of and the recording information for this Open Space Agreement in any deed or other legal instrument by which each divests itself of any interest in all or a portion of the Project, and (ii) give actual notice to any such transferee of th e existence of this Open Space Agreement. The failure of Grantor to perform any act provided in this Section shall not impair the validity of this Open Space Agreement or limit its enforceability in any way.
(i) Automatic Assumption of Obligations. From and after the date of any transfer of interest by Grantor or OA under this Open Space Agreement and each transfer thereafter: (i) the transferee shall be deemed to have assumed all of the obligations of Grantor or OA, as appropriate, as set forth in this Open Space Agreement, (ii) the transferee shall be deemed to have accepted the restrictions contained herein, and (iii) all references to Grantor in this Open Space Agreement shall thereafter be deemed to refer to such transferee. The provisions of Section 11 shall apply to any transfer of ownership by Grantor of any portion of the Property or Project.
12. Notices. All notices, demands, requests, consents, approvals, or communications from one party to another shall be: (i) personally delivered, or (ii) sent by United States mail, certified and postage prepaid, return receipt requested, and addressed as follows, or at such other address as any party may from time to time specify to the other parties in writing:
To Grantor: IDIL WEST VALLEY, LP
Attn: Stephen Hollis
840 Apollo Street, Suite 343
El Segundo, California 90245
To OA: WEST VALLEY OWNERS’ ASSOCIATION
[Address]
To Grantee: City of Fontana
Attn:
8353 Sierra Avenue
Fontana, California 92335
With a copy to: Best, Best & Krieger
Attn: Ruben Duran
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2855 E. Guasti Rd.
Ontario, CA 91761
Notices shall be deemed effective upon receipt or rejection only. Any party may change its address for purposes of giving notice by providing notice to the other party as required herein.
13. Restoration.
(a) OA Restoration. When OA is responsible for restoration activities, such restoration shall be conducted in compliance with pursuant to the LTMP. At Grantee’s option either: (i) OA shall undertake such restoration pursuant to the LTMP attached hereto as Exhibit “E”, and under Grantee’s supervision, or (ii) Grantee shall undertake the restoration. OA shall be responsible for any costs incurred by Grantee pursuant to either (i) or (ii), as herein provided.
(i) Grantee’s Costs. When OA is responsible for restoration activities, OA shall be responsible for reimbursing Grantee for all reasonable costs and expenses incurred by Grantee with respect to monitoring and evaluation restoration activities ( “Grantee’s Costs ”).
Grantee’s Costs shall include: (i) Grantee’s staff time (at its then billed rate), plus (ii) all out of pocket costs incurred by Grantee, including legal fees and fees of other consultants, including qualified biologists. Within thirty (30) days following any request by Grantee, OA shall pay to Grantee an estimated amount of Grantee’s Costs, which amount may be subject to an increase by Grantee, from time-to-time, to be paid from the Advanced Amount Account. Upon the completion of the monitoring and evaluation of the restoration, and after all of Grantee’s Costs have been paid, Grantee will refund to the Advanced Amount Account any remaining amounts paid to it by OA that were not required for payment of Grantee’s Costs.
(ii) Monitoring Report. Upon completion of restoration as specified in the LTMP, OA shall have a Biological Monitor prepare a detailed monitoring report, and OA shall make the report available to Grantee within thirty (30) days of completion of restoration activities. OA and the Biological Monitor shall sign the monitoring report. The monitoring report shall document the Biological Monitor ’s name and affiliation, dates Biological Monitor was present on site, activities observed and their location, Biological Monitor’s observations regarding the adequacy of restoration performance in accordance with the approved LTMP, and corrections recommended and implemented. OA shall be responsible for compensating and/or reimbursing Biological Monitor and Grantee for all reasonable and ordinary expenses incurred by them in discharging their respective res ponsibilities under this subsection within thirty (30) days of invoice.
14. Recordation. Grantor shall promptly record this instrument in the official records of the County in which the Property is located.
15. Estoppel Certificate. Upon request, Grantor, Grante e or OA shall execute and deliver to the others, within fifteen (15) days of a request by either of them, an estoppel certificate, which certifies compliance with any obligation of the requesting party contained in this Open Space Agreement and otherwise evidences the status of this Open Space Agreement.
16. No Hazardous Materials Liability.
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(a) Grantor Representation. Grantor represents it is unaware of any release or threatened release of Hazardous Materials (defined below) or underground storage tanks existing, generated, treated, stored, used, released, disposed of, deposited or abandoned in, on, under, or from the Property, or transported to or from or affecting the Property. (b) Release and Indemnity . Without limiting the obligations of Grantor herein, Grantor hereby releases and agrees to indemnify, protect, defend and hold harmless the Grantee against any and all Claims arising from or connected with any Hazardous Materials present, alleged to be present, or otherwise associated with the Property at any tim e, except that this release and indemnification shall be inapplicable to Grantee with respect to any Hazardous Materials placed, disposed or released by Grantee This release and indemnification includes, without limitation, Claims for (a) injury to or deat h of any person or physical damage to any property; and (b) the Grantor ’s violation or alleged violation of, or other failure to comply with, any Environmental Laws (defined below).
(c) No Hazmat Liability. Despite any contrary provision of this Open Space Agreement, the parties do not intend this Open Space Agreement to be, and this Open Space Agreement shall not be, construed such that it creates in or gives Grantee, or any Agency of the following:
a. The obligations or liabilities of an “owner” or “operator,” as those terms are defined and used in Environmental Laws (defined below), including, without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.; hereinafter, “CERCLA”); or b. The obligations or liabilities of a person described in 42 U.S.C.
Section 9607(a)(3) or (4); or
c. The obligations of a responsible person under any applicable Environmental Laws; or
d. The right to investigate and remediate any Hazardous Materi als associated with the Property unless said investigation or remediation is related to the investigation or remediation of the Open Space Area; or
e. Any control over Grantor’s ability to investigate, remove, remediate or otherwise clean up any Hazardous Materials associated with the Property unless said investigation or remediation by Grantor is related to the Open Space Area.
The term “Hazardous Materials ” includes, without limitation, (a) material that is flammable, explosive or radioactive; (b) petroleum products, including by-products and fractions thereof; and (c) hazardous materials, hazardous wastes, hazardous or toxic substances, or related materials defined in CERCLA; Resource Conservation and Recovery Act (42 U.S.C. 6901 et seq.); the Hazardous Materials Transportation Act (49 U.S.C. Section 5101 et seq.); the Hazardous Waste Control Law (California Health & Safety Code Section 25100 et seq.); the Hazardous Substance Account Act (California Health & Safety Code Section 25300 et seq.), a nd in the regulations adopted and publications promulgated pursuant to them, or any other applicable 16498.40037\40399106.3
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federal, state or local laws, ordinances, rules, regulations or orders now in effect or enacted after the date of this Open Space Agreement.
The term “Environmental Laws” includes, without limitation, any federal, state, local or administrative agency statute, ordinance, rule, regulation, order or requirement relating to pollution, protection of human health or safety, the environment or Hazardous Materials. Grantor and Grantee represent, warrant and covenant to each other and to the Agencies that Grantor and Grantee’s activities upon and use of the Open Space Area will comply with all Environmental Laws.
17. Amendment. Grantor, Grantee or OA may amend this Ope n Space Agreement only by mutual written agreement. Any such amendment shall be consistent with the Purpose of this Open Space Agreement and shall not affect its perpetual duration. Grantor shall record any amendments to this Open Space Agreement approve d by Grantee in the Official Records of the County in which the Property is located, and shall provide a copy of the recorded document to Grantee.
18. General Provisions.
(a) Controlling Law. The laws of the United States and the State of California, disregarding the conflicts of law principles of such state, shall govern the interpretation and performance of this Open Space Agreement.
(b) Liberal Construction. Any general rule of construction to the contrary notwithstanding, this Open Space Agreement shall be liberally construed in favor of and to effect the Purpose of this Open Space Agreement and the policy and purpose set forth in California Civil Code Section 815, et seq. If any provision in this instrument is found to be ambiguous, an interpretation consistent with the Purpose of this Open Space Agreement that would render the provision valid shall be favored over any interpretation that would render it invalid. (c) Severability. If a court of competent jurisdiction voids or invalidates on its face any provision of this Open Space Agreement, such action shall not affect the remainder of this Open Space Agreement. If a court of competent jurisdiction voids or invalidates the application of any provision of this Open Space Agreement to a person or circums tance, such action shall not affect the application of the provision to other persons or circumstances. (d) Entire Agreement. This instrument together with the attached exhibits and any documents referred to herein sets forth the entire agreement of the parti es with respect to the Open Space Agreement and supersedes all prior discussions, negotiations, understandings, or agreements relating to the Open Space Agreement. No alteration or variation of this instrument shall be valid or binding unless contained in an amendment in accordance with Section 16. (e) No Forfeiture . Nothing contained herein will result in a forfeiture or reversion of Grantor’s title in any respect.
(f) Successors and Assigns. The covenants, terms, conditions, and restrictions of this Open Space Agreement shall be binding upon, and inure to the benefit of, the parties hereto 16498.40037\40399106.3
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and their respective personal representatives, heirs, successors, and assigns and shall constitute a servitude running in perpetuity with the Open Space Area. (g) Termination of Rights and Obligations. A party’s rights and obligations under this Open Space Agreement shall terminate upon transfer of the party’s interest in the Open Space Agreement or Open Space Area (respectively), except that liability for acts or omissions occurring prior to transfer shall survive transfer.
(h) Captions. The captions in this instrument have been inserted solely for convenience of reference and are not a part of this instrument and shall have no effect upon its construction or interpretation.
(i) Counterparts. The parties may execute this instrument in two or more counterparts, which shall, in the aggregate, be signed by all parties; each counterpart shall be deemed an original instrument as against any party who has signed it. In the event of any disparity between the counterparts produced, the recorded counterpart shall be controlling. (i) Exhibits. All Exhibits referred to in this Open Space Agreement are attached and incorporated herein by reference.
(j) Extinguishment. If circumstances arise in the futu re that render the Purpose of this Open Space Agreement impossible to accomplish, this Open Space Agreement can only be terminated or extinguished, in whole or in part, by judicial proceedings in a court of competent jurisdiction.
(k) Warranty. Grantor represents and warrants that there are no outstanding mortgages, liens, deeds of trust, encumbrances or other interests in the Open Space Area (including, without limitation, mineral interests) which have not been expressly subordinated to this Open Space Agreement, and that the Open Space Area is not subject to any other Open Space Agreement.
[REMAINDER LEFT INTENTIONALLY BLANK]
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IN WITNESS WHEREOF, Grantor and Grantee have executed this Open Space Agreement the day and year first above written and have agreed to be bound by the terms and provisions hereof.
“GRANTOR”
IDIL WEST VALLEY LOGISTICS CENTER, LP,
a Delaware limited liability company
By:
Name:
Its:
Date:
CERTIFICATE OF ACCEPTANCE
This is to certify that the Open Space Agreement granted hereby is accepted by City of Fontana.
“GRANTEE”
CITY OF FONTANA,
a California municipal corporation
By:
Name:
Its:
Date:
“OA”
IDIL WEST VALLEY LOGISTICS CENTER OWNERS’ ASSOCIATION, INC.
By:
Name:
Its:
Date:
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A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
STATE OF CALIFORNIA
COUNTY OF )
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)
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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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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EXHIBIT “A”
LEGAL DESCRIPTION OF PROPERTY
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LEGAL DESCRIPTION OF OPEN SPACE AREA
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DEPICTION OF OPEN SPACE AREA
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TITLE REPORT
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EXHIBIT “C”
-9-
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EXHIBIT “C”
-10-
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EXHIBIT “C”
-11-
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EXHIBIT “C”
-12-
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EXHIBIT “C”
-13-
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EXHIBIT “C”
-14-
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EXHIBIT “C”
-15-
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EXHIBIT “C”
-16-
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EXHIBIT “C”
-17-
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EXHIBIT “C”
-18-
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EXHIBIT “C”
-19-
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EXHIBIT “C”
-20-
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EXHIBIT “C”
-21-
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EXHIBIT “C”
-22-
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EXHIBIT “C”
-23-
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EXHIBIT “C”
-24-
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EXHIBIT “C”
-25-
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EXHIBIT “C”
-26-
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EXHIBIT “C”
-27-
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EXHIBIT “C”
-28-
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EXHIBIT “D”
-1-
EXHIBIT “D”
CURRENT NATURAL CONDITION OF THE OPEN SPACE AREA
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EXHIBIT “D”
-2-
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EXHIBIT “D”
-3-
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EXHIBIT “D”
-4-
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EXHIBIT “E”
-1-
EXHIBIT “E”
LONG TERM MANAGEMENT PLAN
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EXHIBIT “E”
-2-
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EXHIBIT “E”
-3-
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EXHIBIT “E”
-4-
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EXHIBIT “E”
-5-
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EXHIBIT “E”
-6-
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EXHIBIT “E”
-7-
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EXHIBIT “E”
-8-
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EXHIBIT “E”
-9-
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EXHIBIT “E”
-10-
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EXHIBIT “E”
-11-
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EXHIBIT “E”
-12-
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EXHIBIT “E”
-13-
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EXHIBIT “E”
-14-
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EXHIBIT “E”
-15-
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EXHIBIT “E”
-16-
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EXHIBIT “E”
-17-
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EXHIBIT “E”
-18-
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EXHIBIT “E”
-19-
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EXHIBIT “E”
-20-
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EXHIBIT “E”
-21-
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EXHIBIT “E”
-22-
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EXHIBIT “E”
-23-
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EXHIBIT “E”
-24-
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EXHIBIT “E”
-25-
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EXHIBIT “E”
-26-
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EXHIBIT “E”
-27-
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
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EXHIBIT “E”
-38-
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EXHIBIT “E”
-39-
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EXHIBIT “E”
-40-
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EXHIBIT “F”
-1-
EXHIBIT “F”
GRANT DEED
RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
IDIL West Valley, LLC
c/o John Condas
Allen Matkins Leck Gamble Mallory & Natsis
LLP
2010 Main Street, 8th floor
Irvine, CA 92614
GRANT DEED
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, IDIL WEST VALLEY, LP, a Delaware limited partnership (“Grantor”), hereby grants to the CITY OF FONTANA, a munic ipal corporation of the State of California ( “Grantee”), the following real property (the “Land”), for open space, located in the City of Fontana, County of Riverside, State of California:
SEE EXHIBIT “A” ATTACHED HERETO AND INCORPORATED HEREIN BY THIS
REFERENCE
SUBJECT TO:
1. The terms and conditions of the Covenant and Agreement Regarding Open Space Agreement between Grantor, Grantee, and the WEST VALLEY OWNERS ’ ASSOCIATION, which are incorporated herein by this reference.
2. All other covenants, conditions, restrictions, reservations, rights, rights -of-way, dedications, offers of dedication and easements of record or apparent.
3. All other matters which an inspection or survey of the Property would disclose, real property taxes, which are a lien but not yet due and all applicable laws and ordinances. [SIGNATURE PAGE FOLLOWS]
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EXHIBIT “F”
-2-
IN WITNESS WHEREOF, this Grant Deed has been executed and delivered this _____ day of May, 2022.
“GRANTOR”
IDIL WEST VALLEY, LP,
a Delaware limited liability company
By:
Name:
Its:
Date:
“GRANTEE”
CITY OF FONTANA,
a California municipal corporation
By:
Name:
Its:
Date:
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EXHIBIT “F”
-3-
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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EXHIBIT “F”
-4-
GRANT DEED EXHIBIT A
LEGAL DESCRIPTION
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EXHIBIT “G”
-1-
EXHIBIT “G”
MITIGATION MEASURES AND SPECIFIC PLAN REQUIREMENTS