Fontana City Council
July 11, 2023

Tuesday, July 11, 2023
7:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Regular Agenda
CLOSED SESSION - 6:00 P.M.

REGULAR MEETING - 7:00 P.M
Ord. No.1922 Reso. No. 2023-055
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine McClellan Key - City Clerk
Janet Koehler-Brooks, City Treasurer
1 City Council Meeting Regular Agenda July 11, 2023
Welcome to a meeting of the Fontana City Council.

Welcome to a meeting of the Fontana City Council. A complete agenda packet is located in the binder on the table in the lobby of the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335. To address the Council, please fill out a card located at the entrance to the right indicating your desire to speak on either a specific agenda item or under Public Communications and give it to the City Clerk. Your name will be called when it is your turn to speak. In compliance with Americans with Disabilities Act of 1990 (42 USC § 12132), the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335 is wheelchair accessible, and a portable microphone is available. Upon request, this agenda will be made available in appropriate alternative forms to persons with disabilities, as required by Section 12132 of the Americans with Disabilities Act of 1990. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such a request to the City Clerk ’s Office at ( 909) 350-7602 at least 48 hours before the meeting, if possible. Any public record, relating to an open session agenda item, that is distributed within 72 hours prior to the meeting is available for public inspection in the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335.

Traduccion en Espa ñol disponible a peticion. Favor de notificar al Departamento "City Clerk".

Para mayor informacion, favor de marcar el numero (909) 350-7602.

PUBLIC COMMUNICATION - CLOSED SESSION:

This is an opportunity for citizens to speak to the City Council for up to 3 minutes on the following Closed Session. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council.

A. Public Communications - Closed Session
CLOSED SESSION:

A. 6:00 P.M. CLOSED SESSION
A. 1. Angel Flores Vasquez v. City of Fontana; Noah Shay Paculba
Case No. CVRI2201914

2. Narvolean Jackson vs. City of Fontana
Case No. CIVSB2120186
21-2306
CS Memo.docxAttachments:

CALL TO ORDER/ROLL CALL:

A. Call To Order/Roll Call:

2 City Council Meeting Regular Agenda July 11, 2023
INVOCATION/PLEDGE OF ALLEGIANCE:

A. Invocation/Pledge of Allegiance:

CLOSED SESSION ANNOUNCEMENT:

Closed Session Announcement:

SPECIAL PRESENTATIONS:

A. Special Presentations
A. July is Park and Recreation Month Proclamation 21-2295 Where Community Grows.mp4
Special Presentation.docx
Attachments:

B. Mayor Warren and City Council to recognize Community Service Coordinator, Hector Vasquez as Community
Services Department Employee of the Year (Director Daniel Schneider to present).
21-2305
Special Presentation.docxAttachments:

PUBLIC COMMUNICATIONS:

This is an opportunity for members of the public to address the City Council for up to three ( 3) minutes total on items either on the Agenda or items not on the Agenda, but within the City Council's jurisdiction. Note that Public Hearing items have individual and specific public input opportunities during the public hearing and testimony on those items will only be taken during the public hearing. The Council is prohibited by law from discussing or taking immediate action on non-agendized items. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council .

A. Public Communications
CONSENT CALENDAR:

All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below. There will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for discussion.

3 City Council Meeting Regular Agenda July 11, 2023
A. Approval of Minutes 21-2314
Approve the minutes of the June 27, 2023, City Council Meeting.

City Council Meeting Minutes 6-27-2023 (003).pdfAttachments:

B. Adoption of Ordinance No. 1914 (Second Reading) 21-2315 Second Reading / Ordinance No. 1914, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (Zone Change) No. 21-006 changing the zoning designation for APNs: 0239-151-09 and -38 from Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately 11.1 acres located north of Casa Grande Avenue and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof;
Ord. No. 1914.docxAttachments:

C. Adoption of Ordinance No. 1915 (Second Reading) 21-2316 Second Reading of Ordinance No. 1915, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 22-006 (Shea Properties) for a public benefit fee
1st Read Ordinance No. 1915 - DA with new fee -
MCN21-090.docx
Attachments:

D. Adoption of Ordinance No. 1916 (Second Reading) 21-2317 Second Reading / Ordinance No. 1916, an Ordinance of the City Council of the City of Fontana, approving Zoning District Map Amendment (Zone Change) No. 21-007, to amend the Zoning District Map changing the Zoning Designation for APNs: 0239-151-19, -25, -26, and -36 from General Commercial (C-2) and Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately 19.0 acres located south of Duncan Canyon Road and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof.

Ord. No. 1916.docxAttachments:

E. Adoption of Ordinance No. 1917 (Second Reading) 21-2318 Second Reading of Ordinance No. 1917, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 22-007 (Acacia Real Estate Group, Inc.)
Ord. No. 1917.docxAttachments:

4 City Council Meeting Regular Agenda July 11, 2023
F. Adoption of Ordinance No. 1918 (Second Reading) 21-2319 Second Reading of Ordinance No. 1918, an Ordinance of the City Council of the City of Fontana, California, amending sections 1-1, 1-2, 1-7 and 1-14 in Chapter 1 of the Fontana Municipal Code to make the sections more intuitive and to incorporate current best practices;
Ord. No. 1918 .docxAttachments:

G. Adoption of Ordinance No. 1921 (Second Reading) 21-2320 Second Reading of Ordinance No. 1921, an Ordinance of the City Council of the City of Fontana, California, amending section 20-27 of the Fontana Municipal Code to revise the process of modifying the specifications for an employment position such that it requires only City Manager approval.

Ord No. 1921 .docxAttachments:

H. Acceptance of Final Map of Parcel Map No. 20235 21-2289 Accept final Parcel Map No. 20235 located east of Redwood Avenue and north of Washington Drive; accept as public dedicated streets and easements; and authorize the Mayor and City Clerk to certify the abandonment of certain portions of street right of way as shown on said map.

Vicinity Map
Parcel Map
Attachments:

I. Acceptance of Final Map for Tract No. 20070 21-2297
Approve the Final Map for Tract No. 20070 located along Coyote Canyon Road north of Duncan Canyon Road and accept easements.

Vicinity Map.pdf
Tract Map 20070.pdf
Attachments:

5 City Council Meeting Regular Agenda July 11, 2023
J. Award a Construction Contract for the Arrow Boulevard at Tokay Avenue Traffic Signal Project.
21-2300

1. Award bid and authorize the City Manager to execute a construction contract with Baker Electric Inc. for the construction of the Arrow Boulevard at Tokay Avenue Traffic Signal Project in the amount of $1,237,500.35 and authorize a 10% contingency in the amount of $123,750 (Bid No. SB-113-DE-23).

2. Appropriate $200,000.00 from Measure I Fund 246 to the Arrow Boulevard at Tokay Avenue Traffic Signal Project No. 3354.

3. Approve and authorize the City Manager to execute any and all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Arrow Boulevard at Tokay Avenue Traffic Signal Project.

Vicinity Map
Bid Results
Bid Detail
Attachments:

K. Final Acceptance of the Construction of the Valley
Boulevard/Kaiser Sewer Project - Bid No. SB-19-PW-22
21-2307

1. Accept as complete the work performed by GRBCON Inc. for the Valley Boulevard/Kaiser Sewer Project and approve the final construction amount of $872,225.55

2. Adopt Resolution No. 2023-055 , accepting a new parallel sewer main in Valley Boulevard.

Sewer Resolution Valley Sewer.docAttachments:

Approve Consent Calendar Items as recommended by staff.

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports
ADJOURNMENT:

A. Adjournment
Adjourn to the next Regular City Council Meeting on Tuesday, July 25, 2023, at 7:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.

6 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2306 Agenda Date: 7/11/2023
Agenda #: A. Category: Closed Session
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7 Closed Session

Tuesday, July 11, 2023
6:00 P.M.

City Hall – Executive Conference Room

City Council

Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
8 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2295 Agenda Date: 7/11/2023
Agenda #: A. Category: Special Presentation
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9 Special Presentation

Tuesday, July 11, 2023
7:00 P.M.

Grover W. Taylor Council Chambers

City Council

Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member

10 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2305 Agenda Date: 7/11/2023
Agenda #: B. Category: Special Presentation
City of Fontana Printed on 7/6/2023Page 1 of 1
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11 Special Presentation

Tuesday, July 11, 2023
7:00 P.M.

Grover W. Taylor Council Chambers

City Council

Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member

12 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2314 Agenda Date: 7/11/2023
Agenda #: A. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Approval of Minutes
RECOMMENDATION:

Approve the minutes of the June 27, 2023, City Council Meeting.

COUNCIL GOALS:
· Create and maintain a dynamic team by supporting the decisions of the majority once made.
· Create and maintain a dynamic team by communicating Goals and Objectives to all commissions and employees.

DISCUSSION:

The City Council will consider approval of the minutes of the June 27, 2023, Regular City Council meeting. The draft minutes are attached to this report for Council review and approval.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

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13

City of Fontana

8353 Sierra Avenue
Fontana, CA 92335

Minutes

Tuesday, June 27, 2023

7:00 PM

Grover W. Taylor Council Chambers

City Council Meeting

Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine Key - City Clerk
Janet Koehler-Brooks, City Treasurer

14

PUBLIC COMMUNICATION - CLOSED SESSION:

There were no public communications received for the following items:

CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0194-351-15
City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: Century Sierr a LLC
Under Negotiating: Price and Terms of payment
CLOSED SESSION:

A. 6:00 P.M. CLOSED SESSION

The Closed Session meeting of the Fontana City Council was held in the Executive Conference Room, 8353 Sierra Avenue, Fontana, CA 92335, on Tuesday, June 27th, 2023.

Mayor Warren called the meeting to order at 6:00 p.m., with all members of the City Council present.

CALL TO ORDER/ROLL CALL:

A. 7:00 P.M. Call To Order/Roll Call:

A Regular Meeting of the Fontana City Council was held in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, CA 92335, on Tuesday, June 27 th, 2023. Mayor Warren called the meeting to order at 7:03 p.m.

ROLL CALL:

PRESENT: Mayor Warren, Mayor Pro Tem Garcia, Council Members Cothran, Roberts and Sandoval.

ABSENT: None

City Clerk Key and City Treasurer Koehler-Brooks were also in attendance.

INVOCATION/PLEDGE OF ALLEGIANCE:

A. Invocation/Pledge of Allegiance:

The invocation was given by Council Member John Roberts, followed by the pledge of allegiance led by Council Member Cothran.

CLOSED SESSION ANNOUNCEMENT
A. Closed Session Announcement:

City Attorney Duran reported that the City Council met in Closed Session on the items listed on the agenda but took no reportable action.
15

SPECIAL PRESENTATIONS:

A. Special Presentations:

1. Mayor Warren and City Council to swear in new Fontana Police Officers Joseph Bueti, Tyrell Jones, Daniel Precie, Nicholas Straka, Brendan Whobrey, and Charles Yllan (Chief Michael Dorsey to present).

Mayor Warren swore in new Fontana Police Officers Joseph Bueti, Tyrell Jones, Daniel Precie, Nicholas Straka, Brendan Whobrey, and Charles Yllan

2. Mayor Warren and City Council to recognize Officer Corey Garcia and Dispatchers Laura Asten and Shannon Behrse as the Fontana Police Department May 2023 Employees of the Month (Captain Brian Binks to present).

Mayor Warren and City Council recognized the May 2023 Employees of the Month, thanking them for their service to the community.

3. Mayor Warren and City Council to recognize the 2023 Miss Fontana Court.

Mayor Warren and City Council recognized the 2023 Miss Fontana Court.

PUBLIC COMMUNICATIONS:

A. Public Communications

Based on the number of public comments cards received, Mayor Warren lowered the public speaking time to 2 minutes.

The following individuals spoke under public communications:

1. Amparo Valdivia spoke in opposition to planned parenthood services.

2. Nalley Perez spoke regarding her experience as an employee of planned parenthood.

3. Kimberly Chavez spoke regarding her experience with planned parenthood services.

4. Greg Abdouch spoke in opposition to planned parenthood.

5. Steven Paez spoke in opposition to planned parenthood services.

6. Timothy Johnson spoke in opposition to planned parenthood and mentioned several other healthcare facilities and services that are available to the community.

7. Emmy Wilson spoke in opposition to a proposed planned parenthood facility.

8. Jazmine Chavez spoke in opposition to a proposed planned parenthood facility.

9. Mary Kay Woodward commented on services that are available to expectant mothers.

10. Priest Alfredo Olmos Marcelo spoke regarding his personal experience with abortion.

11. Karishma Velasco spoke into support of pro-life and in opposition of abortions. 16

12. Father Burfitt spoke in support of the pro -life movement and in opposition of planned parenthood.

13. Maribel Gamboa spoke regarding her personal experience with abortion and in support of life.

14. Nayeli Hoagland spoke in opposition to bringing planned parenthood to the city.

15. John Shardlow spoke on behalf of NAIOP Inland Empire and thanked the City Council for their continued partnership with the business community and provided Council with additional written correspondence regarding air quality run of uses.

16. Agustin Romo spoke in opposition to the opening of a planned parenthood facility in the city.

17. Daniel Vasquez spoke on abortion and pro -life and in opposition of planned parenthood.

18. Ricardo Tamayo spoke in opposition to planned parenthood.

19. Mark Richichi a long -time resident spoke regarding his participation in the Respect for Life Ministry and spoke in opposition to bringing planned parenthood to the city.

20. David Apodaca spoke in opposition to the building of a planned parenthood facility in the city.

21. Danielle Holley commented on the Fontana Chamber of Commerce recent Annual Board of Directors Installation Gala event and expressed her appreciation to the City Council for their representation and participation at the event.

22. Benjamin Damain spoke in opposition to abortion and a planned parenthood clinic.

23. Irma Tejeda spoke on abortion and opposed planned parenthood.

24. Merlinda Carrillo spoke in opposition to planned parenthood.

CONSENT CALENDAR:

City Attorney Duran provided the public a verbal announcement regarding executive compensation salaries as it relates to Item “D” on the Consent Calendar.

Prior to the motion being made, Council Membe r Cothran recused himself from item “L” on the Consent Calendar.

ACTION: Motion was made by Mayor Pro Tem Garcia, seconded by Council Member Roberts, and passed unanimously by a vote of 5-0 to adopt the Consent Calendar Items “A-Q” as follows. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts and Sandoval; NOES: None; ABSTAIN: None ABSENT: None A. Approval of Minutes 21-2282
Approve the minutes of the June 13, 2023, City Council Meeting.

B. Emergency Solutions Grant (ESG) Program Service Provider 21-2155 Contract Award
Award bid (SP-86-HD-23) and authorize the City Manager to enter into a 17

one-year agreement, with up to four one-year extensions, with Water of Life Community Church as the designated service provider for the utilization of Federal Emergency Solutions Grant funds.

C. Acceptance of Final Map for Tract No. 20546 21-2197
Approve the Final Map for Tract No. 20546 located along Valencia Avenue between Oleander Avenue and Cypress Avenue; accept easements; and authorize the City Manager to enter into a Subdivision Agreement with the subdivider.

D. Adopt Resolutions Adopting New and Updated Job Descriptions 21-2172 and Salary Ranges for Specific Classifications throughout the City and Approving Updated Salary Tables for Various
Employee Groups as Outlined in Current Labor Agreements or Contracts.

1. Adopt Resolution No. 2023-045, a resolution of the City Council of the City of Fontana adopting new and updated job descriptions and salary ranges for specific classifications throughout the City and the updated corresponding salary table.

2. Adopt Resolution No. 2023-046, a resolution of the City Council of the City of Fontana adopting the updated salary tables for the Executive Group, Fontana Police Benefit Association, Fontana Police Officer’s Association, Fontana Police Management Association, Teamsters Local 1932 City Hall Unit, Teamsters Local 1932 Public Works Unit, and the Management/Confidential Group for the Fiscal Year 2023/2024.

E. Annual Placement of Sewer Charges on the Property Tax Rolls 21-2207 Adopt Resolution No. 2022-047 of the City Council of the City of Fontana, California, directing the placement of sewer charges on the property tax bills for collection.

F. Annual Placement of Weed Abatement Charges on the 21-2208 Property Tax Rolls
Adopt Resolution No. 2022-048 of the City Council of the City of Fontana, California, directing the placement of weed abatement charges on the property tax bills for collection.

G. Annual Placement of Rubbish Charges on the Property Tax 21-2209 Rolls
Adopt Resolution No. 2022-049 of the City Council of the City of Fontana, California, directing the placement of rubbish charges on the property tax bills for collection.

H. Accept Donation from Bel-Air Swap Meet, Inc. (2023 21-2211 18

Summer Concerts)
Accept donation from Bel-Air Swap-Meet, Inc. in the amount of $4, 000 for use towards 2023 Summer Concert Series.

I. Accept Donation from Fontana Foundation of Hope (2023 21-2212 Summer Concert Series)
Accept donation from Fontana Foundation of Hope in the amount of $2,000 for use towards the 2023 Summer Concert Series.

J. Final Acceptance for the Construction of Etiwanda Avenue and 21-2257 Slover Avenue/Airport Drive SCE Undergrounding Project
SB-02-DE-22.

Accept as complete the work performed by E.E. Electric, Inc. for the Construction of Etiwanda Avenue and Slover Avenue/Airport Drive SCE Undergrounding Project SB-02-DE-22 and approve the final construction amount of $939,709.37.

K. Accept a Highway Safety Improvement Program (HSIP) Grant 21-2263 for the TMS Upgrades at Existing Traffic Signals Project.

Approve and authorize the City Manager to Accept the HSIP Grant in the amount of $665,900 for the TMS Upgrades at Existing Traffic Signals Project and authorize staff to request reimbursements to grant requirements.

L. Proposed naming of the new Dog Park at North Heritage Park. 21-2276 Approve the Park, Community and Human Services Commission recommendation to name the new Dog Park at North Heritage Park in honor of Mr. Terrance “Terry” Martin.

M. Feeding America Memorandum of Understanding 21-2278
Authorize the City Manager or his designee to sign and enter a Memorandum of Understanding (MOU) with Feeding America allowing the City’s Community Services Department and its Fontana Community Senior Center be utilized as a distribution center for the Senior Mobile Food Pantry Program.

Also, authorize the City Manager or his designee to sign any future documents, amendments, etc. relating to this program’s MOU and the Senior Mobile Food Pantry Program.

N. Police Department Monthly Information Update 21-2279 Accept the Police Department monthly information update for May 2023.

O. Approve Memorandum of Understanding for Crossing Guard 21-2280 Services with Rialto Unified School District for the 2022-2023 School Year

1. Approve Memorandum of Understanding (MOU) between Rialto Unified 19

School District (RUSD) and City of Fontana for crossing guard services provided by RUSD for the 2022-2023 school year.

2. Approve an appropriation from Fund 101 to 10140352.8130 to allow the City to fund 50% of the cost of crossing guard services for the one (1) RUSD elementary school that falls within the City of Fontana.

P. Approve Memorandum of Understanding for Crossing Guard 21-2281 Services with Rialto Unified School District for 2023-2027 School Years.

1. Approve a Memorandum of Understanding (MOU) between Rialto Unified School District (RUSD) and the City of Fontana for crossing guard services provided by RUSD effective July 1, 2023 through June 30, 2027 for a total estimate of $73,468.00.

2. Authorize the City Manager to execute the MOU and any future amendments during the term of the MOU.

3. Approve a recurring appropriation from Fund 101 to 10140114.8130 to allow the City to fund 50% of the cost of crossing guard services for the one (1) RUSD elementary school that falls within the City of Fontana.

Q. Approve Purchase of Motorola Portable Radios 21-2284

1. Approve the Sole Source of the APX6000 Motorola radios and accessories from Motorola Solutions to be utilize on the County of San Bernardino’s 800 MHz radio system.

2. Authorize the Purchasing Division to issue purchase orders to the County of San Bernardino’s vendor; Motorola Solutions, to purchase the APX6000 Motorola radios with Asset Seizure Fund #223.

PUBLIC HEARINGS:

A. Second Combined General Plan Amendments and Projects for the 21-2204 2nd General Plan Cycle of 2023; Part No. 1 (Shea Industrial Commerce Center Project) and Part No. 2 (North Fontana
Industrial Commerce Center Project).

Part No. 1 - Shea Industrial Commerce Center Project
Master Case No. 21-090, General Plan Amendment No. 21-004, Zoning District Map Amendment (Zone Change) No. 21-006, Tentative Parcel Map No. 20523 (TPM No. 21-018), Design Review No. 21-034, and Development Agreement No. 22-006 to change the subject site’s land use designation for approximately 11.1 adjusted gross acres from Multi Family High Residential (R-MFH) to Light Industrial (I-L) and to consider site and architectural design for the development of a 199,999 square foot industrial commerce center building and associated Final Environmental Impact Report.

1.a Adopt Resolution No. 2023-050 (Part No. 1 of General Plan Amendment cycle No. 2 of 2023,) a Resolution of the City Council of the City of Fontana 20

certifying the Final Environmental Impact Report (FEIR), (State Clearinghouse No. 2022030544), adopting a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and directing staff to file a Notice of Determination, approving General Plan Amendment No. 21-004 (Part No. 1 of General Plan Amendment cycle No. 2 of 2023) amending the General Plan Land Use designation on approximately

11.1 adjusted gross acres (APNs: 0239-151-09 and -38) from Multi Family High Residential (R-MFH) to Light Industrial (I-L) and approving Tentative Parcel Map No. 20523 (TPM No. 21-018) to merge two parcels into one and approving Design Review No. 21-034 for the construction of a 199,999 square foot industrial commerce center and associated on-site and off-site improvements, and subject to the Conditions of Approval; and,

1.b Read by title only and waive further reading of and introduce Ordinance No. 1914, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (Zone Change) No. 21-006 changing the zoning designation for APNs: 0239-151-09 and -38 from Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately 11.1 acres located north of Casa Grande Avenue and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof; and,

1.c Read by title only and waive further reading of and introduce Ordinance No. 1915, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 22-006 for a public benefit fee.

Mayor Warren opened the Public Hearing.

Senior Planner, Salvador Quintanilla, provided the staff report and answered questions of the City Council.

The City Council and staff discussed the stacking minimum requirements of trucks at the entrance along Sierra Avenue.

Another discussi on took place regarding grading of project and City Council requested clarification on landscaping locations throughout the project.

Additionally, the City Council and staff discussed traffic control and truck traffic near the entrance of the project along Sierra Ave.

Deputy City Manager, Phillip Burum provided additional information regarding how city staff will be implementing “no tru ck signs” and street painted “ no truck” stencils. Deputy City Manager Burum also commented on the responsibility and accountability of the facility operator.

Lastly, the City Council and staff discussed Sierra Avenue being the proposed truck route for this project.

The following individuals spoke in support of this item:

1. Andres Bujanda

2. Amanda Morales

3. Nathan Noriega
21

4. Bill Quisenberry

5. Danielle Holley

6. Artina McIntosh

No one spoke in opposition of this item.

The Public Hearing was closed

ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran, and passed by a vote of 4 -1 to approve staff recommendation and the amended public benefit fee on Public Hearing Item “ A” Part No. 1 - Shea Industrial Commerce Center Project : AYES: Warren, Garcia, Cothran and Roberts; NOES:

Sandoval; ABSENT: None; ABSTAIN: None

Part No. 2 - North Fontana Industrial Commerce Center Project Master Case No. 21-099, General Plan Amendment No. 21-005, Zoning District Map Amendment (Zone Change) No. 21-007, Tentative Parcel Map No. 20608 (TPM No. 21-022), Design Review No. 21-039, and Development Agreement No. 22-007 - to change the subject site’s land use designation for approximately 19.0 adjusted gross acres from General Commercial (C-G) and Multi Family High Residential (R-MFH) to Light Industrial (I-L) for the development of two (2) industrial commerce center buildings totaling approximately 385,043 square feet and associated Final Environmental Impact Report.

2.a Adopt Resolution No. 2023-051 (Part No. 2 of General Plan Amendment cycle No. 2 of 2023,) a Resolution of the City Council of the City of Fontana approving the North Fontana Industrial Commerce Center Project pursuant to the previously certified EIR (State Clearinghouse No. 2022030544), attached Facts and Findings, and Mitigation Monitoring and Reporting Program (MMRP) and directing staff to file a Notice of Determination; approving General Plan Amendment No. 21-005 (Part No. 2 of General Plan Amendment cycle No. 2 of 2023) amending the General Plan Land Use designation on approximately 19.0 adjusted gross acres (APNs: 0239-151-19, -25, -26, and -36) from General Commercial (C-G) and Multi Family High Residential (R-MFH) to Light Industrial (I-L) and approving Tentative Parcel Map No. 20608 (TPM No. 21-022) to merge four parcels into two and Design Review No. 21-039 for the construction of two (2) industrial commerce center buildings totaling approximately 385,043 square feet and associated on-site and off-site improvements and subject to the Conditions of Approval; and,

2.b Read by title only and waive further reading of and introduce Ordinance No. 1916, an Ordinance of the City Council of the City of Fontana, approving Zoning District Map Amendment (Zone Change) No. 21-007, to amend the Zoning District Map changing the Zoning Designation for APNs: 0239-151-19, -25, -26, and -36 from General Commercial (C-2) and Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately 19.0 acres located south of Duncan Canyon Road and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof; and,

2.c Read by title only and waive further reading of and introduce Ordinance No. 1917, an Ordinance of the City Council of the City of Fontana, approving 22

Development Agreement No. 22-007.

Mayor Warren opened the Public Hearing.

Senior Planner, Salvador Quintanilla, provided the staff report and answered questions of the City Council.

City Council and staff discussed possible future developments surrounding the project and Council asked for clarification on potential tenants and the reasoning behind why this same item was pulled during a previous City Council Meeting.

City Council and staff discussed the building of a water tank and the requirement from West Valley Water District.

Another discussion took place regarding the traffic pattern use of the entrance along Duncan Canyon Avenue and the possibility of combining the uses of the southern entrance for an all-vehicle access.

City Council and staff discussed the acreage size and zoning designation of the proposed rezone general commercial property which will be used to build the project.

Deputy City Manager Burum provided the Council clarification regarding the remaining commercial acreage and commented regarding a pending pre application submittal to rezone 8 acres of residential property north of Duncan Canyon Road on the west side of Sierra. Deputy City Manager Burum also spoke on the Community Improvement Fee.

Mayor Warren opened the Public Hearing.

No one spoke regarding Part 2- North Fontana Industrial Commerce Center Project.

The Public Hearing was closed.

ACTION: Motion was made by Council Member Cothran, seconded by Mayor Warren , and passed by a vote of 3-2 to approve staff recommendation on Public Hearing Item “A” Part No. 2 - North Fontana Industrial Commerce Center Project with the addition of conditions of approval . The motion carried by the following vote: AYES: Warren, Cothran and Roberts; NOES: Garcia and Sandoval; ABSENT: None; ABSTAIN: None

Mayor Warren called a recess at 9:31 p.m.

Mayor Warren reconvened the meeting at 9:41 p.m.

B. Master Case Nos. 23-040 and -041 and Appeal (APL) Nos. 23-013, 21-2205 and -014 - Appeal of the Planning Commission’s decision to uphold the Director of Planning’s approval of Administrative Site Plan No. 22-013, for the request to modify an existing Southern California Edison (SCE) transmission tower by adding new wireless telecommunications equipment consisting of twelve (12) panel antennas, fifteen (15) radio remote units (RRUs) and ground 23

mounted equipment within a new lease area of approximately 200 square feet, pursuant to CEQA determinations.

Mayor Warren opened the Public Hearing.

Senior Planner, Rina Leung and Assistant Planner, George Velarde provided the staff report and answered questions of the City Council.

The City Council requested clarification on the amount of noise that would be coming from the project site. Noise Specialist, Bil l Hemet, spoke regarding calculation and measure of radio frequency exposure conditions, exposure levels , sound level , and how they compare to standard levels.

The following individuals spoke in support of this item:

1. Julio Figueroa

2. Alexis Dunlap

The following individuals spoke in opposition of this item:

1. Nickole Wiliams

2. Neil Hedtke

Deputy City Manager Burum commented on the Director’s Hearing and public notice; the application process once the applicant has proved need for and has determined location of the tower.

The City Council inquired with AT&T representatives on whether they had provided additional community outreach.

The public hearing was closed.

ACTION: Motion was made by Mayor Pro Tem Garcia, seconded by Council Member Cothran, and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “B”. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts; NOES: Sandoval; ABSTAIN: None

C. Quarterly Lien Action for Delinquent Sewer, Rubbish and Weed 21-2210 Abatement Accounts.
.

1. Authorize staff to complete and record lien notices against real property for those sewer accounts sixty days or more delinquent as described in Certified Lien List and direct staff to forward recorded liens to the County for collection.

2. Authorize staff to complete and record liens against real property for those rubbish accounts more than ninety days delinquent as described in the

Certified Lien List and direct staff to forward recorded liens to the County for collection.
24

3. Adopt Resolution No. 2022-052 of the City Council of the City of Fontana adopting the statement of unpaid expenses for weed abatement and imposing a lien against real property for payment thereof.

Mayor Warren opened the Public Hearing.

Revenue Operations Manager, Lisa Conlon, provide the staff report.

With no one interested to speak in favor or opposition of this item Mayor Warren closed the public hearing.

ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts, and passed by a vote of 5-0 to approve staff recommendation on Public Hearing Item “C”. The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts; NOES: None; ABSENT: Sandoval; ABSTAIN: None

NEW BUSINESS:

A. New Business
A. An Ordinance of the City Council of the City of Fontana, 21-2296 California, amending sections 1-1, 1-2, 1-7, and 1-14 in Chapter 1 of the Fontana Municipal Code to make the sections more intuitive and to incorporate current best practices.

An Ordinance of the City Council of the City of Fontana, California, amending section 20-27 of the Fontana Municipal Code to revise the process of modifying the specifications of an employment position such that it requires only City Manager approval.

1. Determine that staff recommendations to modify sections 1-1, 1-2, 1-7 and 1-14 in Chapter 1 of the Fontana Municipal Code are appropriate, make for a more intuitive municipal code, and incorporate current best practices of the City; and approve such modifications.

2. Read by title only and waive further reading of and introduce Ordinance No. 1918 an Ordinance of the City Council of the City of Fontana,

California, amending sections 1-1, 1-2, 1-7 and 1-14 in Chapter 1 of the Fontana Municipal Code to make the sections more intuitive and to incorporate current best practices.

3. Determine that the amendments for Chapter 20 of the Fontana Municipal Code will provide for a more efficient administration, and approve such amendments.

4. Read by title only and waive further reading of and introduce Ordinance No. 1919 an Ordinance of the City Council of the City of Fontana, 25

California, amending section 20-27 of the Fontana Municipal Code to revise the process of modifying the specifications for an employment position such that it requires only City Manager approval.

Deputy City Manager Ray Ebert provided the staff report.

ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts, and passed by a vote of 5-0 to approve New Business Item “A”. The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts and Sandoval; NOES: None; ABSENT: None; ABSTAIN: None
CITY MANAGER COMMUNICATIONS:

Deputy City Manager Burum commented on the upcoming 4th of July Independence Day Celebration at Summit High School; reminded the public on the city’s restrictions on Safe & Sane fireworks; and closed his comments by thanking the Mayor and Council for taking it easy on him this past week.

ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports

City Treasurer Koehler -Brooks wished the public a happy 4 th of July holiday and Council Member John Roberts a happy belated birthday.

City Clerk Key thanked the City of Fontana’s Community Services staff for putting on Concerts in the Park; wished the public a happy 4 th of July holiday; congratulated all the newl y sworn in Police Officers, Law Enforcement employees of the month, and the 2023 Miss Fontana Court.

Mayor Pro Tem Garcia congratulated the Fontana Chamber of Commerce for putting on the recent Annual Board of Directors Installation Gala; congratulated ne w Board Member Raj Sangha; commented on unpermitted food vendors and suggested that the public support local businesses.

Council Member Cothran briefly commented on the Fontana Chamber of Commerce Annual Board of Directors Insta llation Gala; invited the public to the city’s upcoming 4 th of July Independence Day Celebration at Summit High School.

Council Member Sandoval congratulated the city’s Senior Softball Team for taking silver in the recent Pasadena games; wished his wife, Mary Sandoval, a happy 41 st anniversary and spoke about his service to the community.

Council Member Roberts echoed similar comments that were previously mentioned; congratulated the 2023 Miss Fontana Court; and closed by commenting that he is looking forward to having a great 4th of July holiday.

Mayor Warren spoke on the safety of the city and congratulated all the newly sworn Police Officers; commented on her recent attendance to the Fontana Chamber of Commerce Annual Board of Directors Installation Gala and the Mayor’s Youth Advisory Banquet dinner. 26

Mayor Warren also commented on all the speakers that came out to speak and express their opinion at tonight’s meeting. Mayor Warren briefly sp oke about community involvement; the importance of celebrating the 4 th of Jul y, safety during the holiday and the use of illegal firework and urged the public to report the use of illegal fireworks. Mayor Warren closed her comments by inviting the public to attend the city’s 4th of July Independence Day Celebration.

ADJOURNMENT:

A. Adjournment
Mayor Warren adjourned the meeting at 10:25 p.m. to the next City Council Meeting on Tuesday, July 25 , 2023, at 7:00 p.m. in the Grover W. Taylor Council Cha mbers located at 8353 Sierra Avenue, Fontana, California.

_____________________
Susana Gallardo
Specialist to the Deputy City Clerk

THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL ON JULY 11, 2023.

_______________________
Germaine Key
City Clerk
.
27 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2315 Agenda Date: 7/11/2023
Agenda #: B. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1914 (Second Reading)
RECOMMENDATION:

Second Reading / Ordinance No. 1914, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (Zone Change) No. 21-006 changing the zoning designation for APNs: 0239-151-09 and -38 from Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately 11.1 acres located north of Casa Grande Avenue and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof; COUNCIL GOALS:
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
· Enhance the local environment for future generations and create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.

DISCUSSION:

Ordinance No. 1914 was introduced by a vote of 4-1 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 7/6/2023Page 1 of 1
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28 ATTACHMENT NO. 3
ORDINANCE NO. ____

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA ,

APPROVING, PURSUANT TO THE CERTIFIED ENVIRONMENTAL IMPACT

REPORT FOR THE SHEA INDUSTRIAL COMMERCE CENTER (STATE
CLEARINGHOUSE NO. 2022030544) , ZONING DISTRICT MAP AMENDMENT (ZONE CHANGE ) NO. 21-006 TO AMEND THE ZONING DISTRICT MAP TO CHANGE THE ZONING DESIGNATION FOR APNS: 0239 -151-09 AND -38 FROM MULTI FAMILY HIGH RESIDENTIAL (R -5) TO LIGHT INDUSTRIAL (M- 1) FOR APPROXIMATELY 11.1 ACRES LOCATED NORTH OF CASA GRANDE AVENUE AND EAST OF SIERRA AVENUE.

WHEREAS, on September 22, 2021, applicant, Shea Properties, submitted a request for a General Plan Amendment No. 21-004 to change the land use designation from Multi Family High Residential (R -MFH) to Light Industrial (I -L) on approximately

11.1 adjusted gross acres of a two parcels (APNs: 0239-151-09 and -38) (see attached Exhibit “A”), amend the Zoning District Map (Zoning District Map Amendment No. 21- 006) to rezone the parcels from Multiple-Family High Density Residential (R-5) to Light Industrial (M-1), a Tentative Parcel Map (TPM NO. 21 -018) to merge two parcels into one, and Design Review No. 21 -034 to allow the development of a 199,999 square foot industrial commerce building with associated landscaping and parking (Project); and
WHEREAS, the subject site includes two parcels that were annexed from San Bernardino County into the City of Fontana on October 8, 1981; and WHEREAS, on April 18 , 202 3, the Plannin g Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties at a public hearing held on Shea Industrial Commerce Center EIR (State Clearinghouse No. 2022030544), General Plan Amendment No. 21 -004, Zoning District Map Amendment No. 21-006, Development Agreement No. 22-006, Tentative Parcel Map No. 20523 (TPM No. 21 -018), and Design Review No. 21 -034, 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 of the Project to the City Council; and

WHEREAS, the subject property is to be developed below the assumed capacity as identified in the approved Housing Element, however there is still sufficient capacity in the city at the “extremely low/very low” income category to meet the City’s Regional House Needs Assessment (RHNA) allocation; and

WHEREAS, to comply with California’s Housing Crisis Act of 2019 (SB 330), the project will participate in the City of Fontana Municipal Code Chapter 30 Article XV “No Net Loss Density Bonus/Replacement Program.” Pursuant to FMC section 30-967, the Unit Bank cannot exceed 2,200 units. The Unit Bank is currently 0 units. These 555 units will be added to the Unit Bank increasing the number of units in the Unit Bank 29 Ordinance No. 2023 - ___

to 555 which is less than the 2,200 units authorized by FMC. The units in the Unit Bank shall be available as density bonuses for other residential properties throughout the city. The program will enable, on a first come, first serve basis, density bonuses of up to 20% on other parcels until these 555 residential units are reclaimed within future planned residential projects; and,

WHEREAS, after the publication of notice as require d by law, the City Council of the City of Fontana, California conducted a public hearing on Zoning District Map Amendment (Zone Change) No. 21-006; and

WHEREAS, the public hearing for the project was opened at the May 9, 2023, City Council Meeting and on that date the public hearing was continued to the June 27, 2023, City Council meeting; and
WHEREAS, on June 27 , 2023 , the City Council held a duly noticed public hearing on Zoning District Map (Zone Change) Amendment No. 21-006 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 com munity 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. 21-006 is consistent with the goals and policies of the City of Fontana, General Plan Goal 7 of Chapter 15, “support high- quality 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:

Section 1. The recitals are true and correct and incorporated herein by this reference.

Section 2. The City Council approves this Ordinance pursuant to the certified Shea Industrial Commerce Center Environmental Impact Report (State Clearinghouse No. 2022030544) . The City Council finds that the EIR contains a complete and accurate reporting of all the environmental impacts associated with the Ordinance. The City Council further finds that the EIR has been completed in compliance with CEQA, 2019 Local Guidelines for Implementing the California Environmental Quality Act, and the State CEQA Guidelines. Further, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required. A Notice of Determination has been prepared.

Section 3. 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. 30 Ordinance No. 2023 - ___

Section 4. The City of Fontana City C ouncil hereby makes the following findings for Zoning District Map Amendment (Zone Change) No. 21-006 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: Changing the zoning designation from Multi Family High Residential (R -5) to Light Industrial (M -1)would allow for the construction of a 199,999 square foot industrial commerce building. This development will assist with growing industrial commerce demand in the City of Fontana and the surrounding area. The zone change will provide consistency with the zoning and existing development to the south of the subject site and will provide safe and attractive development.

Section 5. The City Council approves Zoning District Map Amendment (Zone Change) No. 21-006 to amend the zoning designation for APNs: 0239-151-09 and -38 from Multi Family High Residential (R-5) to Light Industrial (M-1) as shown on Exhibit “A”, and attached hereto and by this reference incorporated as though fully set forth herein.

Section 6. 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, or after the adoption of the City Council Ordinance approving Development Agreement No. 22-006 whichever occurs later, provided however, if the Ordinance approving the Development Agreement is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise does not go into effect for any reason, then this Ordinance shall be null and void and have no further force and effect. This Ordinance 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.

APPROVED AND ADOPTED this 27th day of June 2023.

READ AND APPROVED AS TO LEGAL FORM:

31 Ordinance No. 2023 - ___

_________________________________________
City Attorney

I, Germaine 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 introdu ced at a regular meeting on the 27th day of June 2023, and was finally passed and adopted not less th an five days thereafter on the 11th day of July 2023, 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

32 Ordinance No. 2023 - ___

“EXHIBIT A”

EXISTING AND PROPOSED ZONING MAP DESIGNATION -
MEDIUM-FAMILY RESIDENTIAL (R-5) TO LIGHT INDUSTRIAL (I-L)

33 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2316 Agenda Date: 7/11/2023
Agenda #: C. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1915 (Second Reading)
RECOMMENDATION:

Second Reading of Ordinance No. 1915, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 22-006 (Shea Properties) for a public benefit fee COUNCIL GOALS:
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
· Enhance the local environment for future generations and create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.

DISCUSSION:

Ordinance No. 1915 was introduced by a vote of 4-1 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 7/6/2023Page 1 of 1
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34 ATTACHMENT NO. 4
ORDINANCE NO. _____

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA, PURSUANT TO THE CERTIFIED

ENVIRONMENTAL IMPACT REPORT FOR THE SHEA

INDUSTRIAL COMMERCE CENTER PROJECT (STATE
CLEARINGHOUSE NO. 2022030544), APPROVING
DEVELOPMENT AGREEMENT NO. 22-006 FOR A PUBLIC

BENEFIT FEE BETWEEN THE CITY OF FONTANA AND

SHEA PROPERTIES, WHICH PROVIDES A PUBLIC
BENEFIT FEE IN THE AMOUNT OF $849,995.75
$1,199,994.

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, City has found that development agreements will strengthen the public planning process, enco urage 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, because of the logistics, magnitude of the expenditure, and considerable lead time required to plan and develop the Property, Shea Properties (“Developer”) has proposed to enter into a development agreement concerning the Property (“Development Agreement”), to provide assurances that the Property can be developed without disruption caused by a change in the City’s planning policies and requirements except as provided in the Development Agreement, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and

WHEREAS, the City of Fontana, a California Municipal Corporation ("City") and Shea Properties ("Developer") are supportive of entering into a Development Agreement whereby Developer will acquire fee title to certain real property (the "Property"); and

WHEREAS, Developer's interest in the Property, including that interes t to be conveyed pursuant to the DA, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and

35 2 of 5
WHEREAS, Developer proposes the development of the Property for an industrial commerce building totaling approximately 199,999 square feet, including up to 19,900 square feet of office space, 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 deve lopment 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 with City's Gener al 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 o n the Property in accordance with the goals and policies set forth in the General Plan and (ii) City will benefit from increased employment and industrial opportunities created by the Project for residents of the City; and
WHEREAS, on April 18, 2023, the Planning Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties at a public hearing held on Development Agreement No. 22-006 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 Development Agreement No. 22-006; and

WHEREAS, the public hearing for the project was opened at the May 9, 2023, City Council Meeting and on that date the public hearing was continued to the June 27, 2023, City Council meeting; and
WHEREAS, on June 27, 2023, the City Council introduced this Ordinance through a first reading of this Ordinance; and

WHEREAS, consistent with the California Environmental Quality Act (CEQA) (Pub. Resources Code § 21000 et seq. ) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the Shea In dustrial Commerce Center Environmental Impact Report (“EIR”) (State Clearinghouse No. 2022030544) has been prepared for development including development of the Property; and

WHEREAS, the City Council has certified the Sierra Business Center EIR and, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that 36 3 of 5
further environmental analysis is not required . A Notice of Determination has been prepared; ; and

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. The recitals are true and correct and incorporated herein by this reference.

Section 2. Consistent with the California Environmental Quality Act (CEQA) (Pub.

Resources Code § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the Sierra Business Center Environmental Impact Report (“EIR”) (State Clearingh ouse No. 2022030544) was prepared for development, including development of the Property. The City Council has certified the Sierra Business Center EIR and, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required. A Notice of Determination has been prepared.

Section 3. 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. 22-006 between Shea Properties and the City of Fontana, a California municipal corporation.
37 4 of 5
Section 4. 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 co mmunity 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 5. 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 p resented 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 G eneral Plan and with the restrictions and standards set forth in the City's Municipal Code.

Section 6. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds that the Development Agreement is in the best interests of the City, and represents good land use practices, as it ensures the orderly development of the Property with amenities and infrastructure that will be beneficial to the community.

Section 7. The City Council further finds that among the public benefits to accrue to the residents of the City as a result of the Development Agreement are:

1. The revitalization of an underdeveloped site.

2. The development of onsite infrastructure upgrades that would not occur otherwise.

3. The generation of additional property tax.

4. The stimulation of adjacent areas in the City by introducing new industrial facilities and opportunities.

5. The implementation of numerous City planning and economic development policies which benefit the health and fiscal welfare of the City and its residents.

6. The payment of a public benefit fee from the Developer to the City to offset certain private benefits received by Developer under the DA.

Section 8. 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 9. 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, provided however, if Ordinance adopting Development Agreement No. 22-006 is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this Ordinance shall be null and void and have no further force or effect. 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 of Fontana. Thereafter this Ordinance shall be in full force and effect. 38 5 of 5

APPROVED and ADOPTED this 27th day of June 2023.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney

I, Germaine 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 adopte d by the City Council and was introduced at a regular meeting on the 27th day of June 2023, and was finally passed and adopted not less than five days thereafter on the 11th day of July 2023 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

39 EXHIBIT "A"

DEVELOPMENT AGREEMENT

40 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. 22-006

A DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation
(“City”)

and

SHEA PROPERTIES
(“Owner”)

41 Exhibit A
DEVELOPMENT AGREEMENT NO. 22-006
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 Shea Properties, (hereinafter, “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 on the east side of Sierra Avenue approximately 700 feet north of Casa Grande Avenue (APNs: 239-151-09; 239-151-28), 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 e lecting 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 , considered, and certified the Environmental Impact Report (“EIR”) for the Sierra Business Center Project of which the Project, as that term is defined below, is a part , and made findings concerning the mitigation measures for the Project, 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 Master Case No. (MCN) No. 21-090, Design Review Project (DRP) No. 21-034, Tentative Parcel Map No. 20523 (TPM No. 21-018), General Plan Amendment (GPA) No. 21-004 and Zone Change Application (ZCA) No. 21-006 (collectively, the “Project”).

WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and any Specific Plan applicable thereto; and 42 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 WHEREAS, development of the Property in accordance with this Agree ment 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 installatio n 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 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. T he 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 Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Proper ty including, but not limited to:
(a) conditional use permits and design review permits;
43 (b) tentative parcel maps;
(c) General Plan and Zoning Code amendments; and,
(d) grading, encroachment and building permits.

1.1.5 “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 comp ensate for the impacts of development on the environment or other public interests.

1.1.6 “Development Impact Fee” means a monetary exaction other than a tax or special assessment, whether characterized as a fee or a tax and 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 collecte d 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 furt herance 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).

1.1.7 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations , as those terms are defined herein, applicable to development of the Property.

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

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

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

1.1.11 “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, timing and phasing of development, 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:
44 (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.

1.1.12 “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.

1.1.13 “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 “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.

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

1.1.16 “Public Benefit Fee” means the one -time public benefit fee described in Section 4.3 of 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.
45 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 Term. 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 ninety (90) days written notice to CITY prior to the expiration of the initial term; and

(b) OWNER shall have obtained building permits for at least sixty -seven percent (67%) of the gross area of the industrial building (s) 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.”

The term of this Agreement shall not be considered to run and shall toll for any period in which the Project is being challenged or litigated by a third-party.

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 ass ignment 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 substantially similar to that attached hereto as Exhibit ___ which has been deemed reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing 46 therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement. (c) Any sale, transfer or assignment not ma de 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 Transf erring 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 o f 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 re quest, 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 otherw ise 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 47 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 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 or temporary certificate of occupancy has been issu ed 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. Any amendment of this Agreement which has been requested by OWNER s hall only be processed and considered by the CITY upon the payment of the applicable processing charge.

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.

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 48 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.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of no tice, 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, Suite 400
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441

If to OWNER:
____________
c/o Shea Properties
Attn: Julie A. Guizan, Esq.
130 Vantis Street, Suite 200
Aliso Viejo, CA 92656
Telephone: (949) 389-7173

Copy to:
________________
c/o Shea Properties
Attn: Jason Korengold.
130 Vantis Street, Suite 200
49 Aliso Viejo, CA 92656
Telephone: (949) 389-7000

Copy to:

Allen Matkins Leck Gamble Mallory & Natsis
Attn: Jonathan E. Shardlow, Esq.
2010 Main Street, 8th Floor
Irvine, CA 92614
Telephone: (949) 553-1313

(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.

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 ex tent 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 Regul ations. 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 max imum 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 Approv al, 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 Subsequ ent Development Approvals, and such applications shall be processed in the normal manner for processing such matters.

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 50 development to prevail over such parties’ a greement, 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 subjec tive 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. Notwithstanding anything to the contrary set forth in this Section 3.3 or in this Agreement, City ac knowledges that OWNER shall have no obligation to construct the Project and that OWNER shall not be subject to any penalty nor shall City be entitled to any legal or equitable remedy , including , without limitation, a claim for specific performance of this Agreement , if OWNER determines not to construct the Project for any reason.

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, (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.
51 (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, policies, and rules governing construction standards and speci fications 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 Developmen t 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 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 t he 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, prov ided, however, that this 52 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. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other simil ar non -monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non -monetary relief).

3.6.4 Intent. The parties acknowledge and a gree 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 de dicated 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.

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 n ecessary 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 proper ty 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. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or 53 compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 Tentative Parcel 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. E xcept 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 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 t he 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(s). Development Impact Fees (DIF) shall be paid by OWNER. The DIF amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new DIF or amend the amounts of existing DIF. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, DIF established or imposed by such other pub lic agencies, even though such DIF may be collected by CITY.
54 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 t o 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. Prior to the issuance of the Certificate of Occupancy for the building, as consideration for the privileges conferred by this Agreement, OWNER shall pay to the City a one-time public benefit fee totaling $849,995.75 $1,199,994.

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. Notwi thstanding 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.

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 or as deemed necessary 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.
55 (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 A greement. 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 to impose such conditions as are reasonably necessary to obtain compliance with the terms of this Agreement. . 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 written request by OWNER, issue a Certificate of Agreement Compli ance (“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 defau lt. 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 56 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 th is 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. Except as set forth in Section 3.3, above, 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.
57 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 Ca lifornia 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 o f 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 da te 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 c omplete 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 effec tive 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.

8.1 General Plan Litigation . CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan existed as of the Effective Date of t his Agreement (“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. 58 8.2 Third Party Litigation Concerning Agreement . OWNER shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and emp loyees 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 OW NER 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, constru ction, 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 reasonable 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 Environmental Assurances. OWNER shall ind emnify 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, and independent contractors for any violation of any fede ral, 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, includin g reasonable attorneys’ fees, CITY, its officers, agents and employees in any action based or 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 reasonable attorneys’ fees, upon billing and accounting therefor.

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

9. MORTGAGEE PROTECTION.
59 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 pe rformance 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.

10.1 Recordation of Agreement . This Agreement and any amendment or cancellation thereof shall be r ecorded with the San Bernardino County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates 60 or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

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.

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.

10.4 Governing Law; Interpretation . This Agreement and any dispute arising hereunder shall be governed and interpreted in accorda nce 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.

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. 61 10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Ag reement 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 per formance, 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, a ll 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.

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.
62 10.16 Project as a Private Undertaking . It is specifically understood an d 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 obligat ions 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 requi red 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 it self, 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).

10.20 Estoppel Certificate. Wit hin thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a 63 conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’s issuance of such certificates.

10.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or sh e/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

______________________

By: ________________________
Shea Properties, Management
Company, Inc., a Delaware Corporation

Its: ________________________
Owner

Dated: ______________________

64 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)

65 CITY:

CITY OF FONTANA, a California
municipal corporation

By:_____________________________
Acquanetta Warren, Mayor

Dated: __________________

By: ________________________________
Matthew C. Ballantyne, City Manager

ATTEST:

By:_____________________________
Germaine McClellan Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

________________________________
City Attorney
66 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)

67 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2317 Agenda Date: 7/11/2023
Agenda #: D. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1916 (Second Reading)
RECOMMENDATION:

Second Reading / Ordinance No. 1916, an Ordinance of the City Council of the City of Fontana, approving Zoning District Map Amendment (Zone Change) No. 21-007, to amend the Zoning District Map changing the Zoning Designation for APNs: 0239-151-19, -25, -26, and -36 from General Commercial (C-2) and Multi Family High Residential (R-5) to Light Industrial (M-1) for approximately

19.0 acres located south of Duncan Canyon Road and east of Sierra Avenue, and that the reading of the title constitutes the first reading thereof.

COUNCIL GOALS:
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
· Enhance the local environment for future generations and create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.

DISCUSSION:

Ordinance No. 1916 was introduced by a vote of 3-2 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 7/6/2023Page 1 of 1
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68 ATTACHMENT NO. 10
ORDINANCE NO. 2023-____

AN ORDINANCE OF THE CITY COUNCIL OF CITY OF FONTANA ,

APPROVING, PURSUANT TO THE CERTIFIED ENVIRONMENTAL IMPACT

REPORT FOR THE SIERRA BUSINESS CENTER (STATE CLEARINGHOUSE NO. 2022030544), ZONING DISTRICT MAP AMENDMENT ( ZONE CHANGE) NO. 21-007, TO CHANGE THE ZONING DESIGNATION FOR APNS 0239-151- 19, -25, -26, and -36 FROM GENERAL COMMERCIAL (C -2) AND MULTI FAMILY HIGH RESIDENTIAL (R -5) TO LIGHT INDUSTRIAL (M -1) FOR APPROXIMATELY 19.0 ACRES LOCATED SOUTH OF DUNCAN CANYON

ROAD AND EAST OF SIERRA AVENUE

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. 21-007 to amend the zoning map designation for parcel s APNs:
0239-151-19, -25, -26, and -36 from the General Commercial (C-2) and Multi Family High Residential (R-5) Zoning District to the Light Industrial (M-1) Zoning District; and WHEREAS, on April 18 , 202 3, 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. 21-007 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. 21-007; and
WHERAS, the subject property is proposed to be developed below the assumed capacity as identified in the approved Housing Element, however there is still sufficient capacity in the city at the “extremely low/very low” income category to meet the City’s Regional House Needs Assessment (RHNA) allocation; and

WHEREAS, to comply with California’s Housing Crisis Act of 2019 (SB 330), the project will participate in the City of Fontana Municipal Code Chapter 30 Article XV “No Net Loss Density Bonus/Replacement Program.” The 725 units will be available as density bonuses for other residential properties throughout the city. The program will enable, on a first come, first serve d basis, density bonuses of up to 20% on other parcels until the 725 residential units are reclaimed within future planned residential projects.

WHEREAS, after the publication of notice as require d by law, the City Council of the City of Fontana, California conducted a public hearing on Zoning District Map Amendment (Zone Change) No. 21-007; and
69 Ordinance No. 2023 - ___

WHEREAS, a duly noticed public hearing for the project was opened at the May 9, 2023, City Council Meeting and on that date the public hearing was continued to the June 27, 2023, City Council meeting; and
WHEREAS, on June 27, 2023 , the City Council held a duly not iced public hearing on Zoning District Map (Zone Change) Amendment No. 21-007 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 com munity 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. 21-007 is consistent with the goals and policies of the City of Fontana, General Plan Goal 7 of Chapter 15, “support high- quality 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:

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 C ouncil hereby makes the following findings for Zoning District Map Amendment (Zone Change) No. 21-007 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 change the zoning designations from General Commercial (C-2) and Multi Family High Residential (R - 5) to Light Industrial (M-1). This would allow for the construction of two (2) industrial commerce center buildings totaling approximately 385,043 square feet . 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 proposed zoning and development to the south of the subject site and will provide safe and attractive development.
70 Ordinance No. 2023 - ___

Section 3. The City Council approves this Ordinance pursuant to the certified the Sierra Business Center Environmental Impact Report (State Clearinghouse No. 2022030544). The City Council finds that the EIR contains a complete and accurate reporting of all the enviro nmental impacts associated with the Ordinance pursuant to the California Environmental Quality Act (CEQA). Based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required. A Notice of Determination has been prepared; and Section 4. The City Council approves Zoning District Map Amendment (Zone Change) No. 21-007 to amend the zoning designation for APNs: 0239-151-19, -25, - 26, and -36 from General Commercial (C-2) and Multi Family High Residential (R-5) 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.

APPROVED AND ADOPTED this 27th day of June 2023.

READ AND APPROVED AS TO LEGAL FORM:

_________________________________________
City Attorney

I, Germaine 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 introdu ced at a regular meeting on the 27th day of June 2023, and was finally passed and adopted not less th an five days thereafter on the 11th day of July 2023, by the following vote to wit:

AYES:

NOES:

ABSENT:

_________________________________________
City Clerk of the City of Fontana

71 Ordinance No. 2023 - ___

_________________________________________
Mayor of the City of Fontana

ATTEST:

_________________________________________
City Clerk

72 Ordinance No. 2023 - ___

“EXHIBIT A”

EXISTING AND PROPOSED ZONING MAP DESIGNATION -
GENERAL COMMERCIAL (C-2) AND MEDIUM-FAMILY RESIDENTIAL (R-5) TO

LIGHT INDUSTRIAL (I-L)

73 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2318 Agenda Date: 7/11/2023
Agenda #: E. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1917 (Second Reading)
RECOMMENDATION:

Second Reading of Ordinance No. 1917, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 22-007 (Acacia Real Estate Group, Inc.) COUNCIL GOALS:
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
· Enhance the local environment for future generations and create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.

DISCUSSION:

Ordinance No. 1917 was introduced by a vote of 3-2 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 7/6/2023Page 1 of 1
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74 ORDINANCE NO.______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA, PURSUANT TO THE CERTIFIED

ENVIRONMENTAL IMPACT REPORT FOR THE NORTH

FONTANA INDUSTRIAL COMMERCE CENTER PROJECT
(STATE CLEARINGHOUSE NO. 22022030544),
APPROVING DEVELOPMENT AGREEMENT NO. 22-007

BETWEEN THE CITY OF FONTANA AND ACACIA REAL
ESTATE GROUP, INC. , WHICH PROVIDES A PUBLIC
BENEFIT FEE IN THE AMOUNT OF $1,636,432.70.

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, City has found that development agreements will strengthen the public planning process, enco urage 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, because of the logistics, magnitude of the expenditure, and considerable lead time required to plan and develop the Property, Acacia Real Estate Group, Inc. (“Developer”) has proposed to enter into a development agreement concerning the Property (“Development Agreement”), to provide assurances that the Property can be developed without disruption caused by a change in the City’s planning policies and requirements except as provided in the Development Agreement, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and

WHEREAS, the City of Fontana, a California Municipal Corporation ("City") and Developer are supportive of entering into a Development Agreement whereby Developer will 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 two industrial buildings totaling approximately 385,043 square feet, including up to 21,000 square feet ATTACHMENT NO. 11
75 2 of 5
of office space, 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 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 and industrial opportunities created by the Project for residents of the City; and
WHEREAS, on April 18, 2023, the Planning Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties at a public hearing held on Development Agreement No. 22 -007, 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 Development Agreement 22-007; and

WHEREAS, a duly noticed public hearing for the project was opened at the May 9, 2023, City Council Meeting and on that date the public hearing was continued to the June 27, 2023, City Council meeting; and
WHEREAS, on June 27, 2023, the City Council introduced this Ordinance through a first reading of this Ordinance; and

WHEREAS, consistent with the California Environmental Quality Act (CEQA) (Pub.

Resources Code § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the Sierra Business Center Environmental Impact Report (“ EIR”) (State Clearinghouse No. 2022030544). has been prepared for development including development of the Property; and

WHEREAS, the City Council has certified the North Fontana Industrial Commerce Center EIR and, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required. A Not ice of Determination has been prepared; and

76 3 of 5
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 Developm ent 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. The recitals are true and correct and incorporated herein by this reference.

Section 2. Consistent with the California Environmental Quality Act (CEQA) (Pub.

Resources Code § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), the North Fontana Industrial Commerce Center Environmental Impact Report (“EIR”) (State Clearinghouse No. 2022030544) was prepared for development, including development of the Property. The City Council has certified the North Fontana Industrial Commerce Center EIR and, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required. A Notice of Determination has been prepared.

Section 3. 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. 22-007 between Acacia Real Estate Group, Inc. and the City of Fontana, a California municipal corporation.

Section 4. 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. 77 4 of 5

Section 5. 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 bas ed 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.

Section 6. Based on the entire record before the City Council and all wri tten and oral evidence presented to the City Council, the City Council finds that the Development Agreement is in the best interests of the City, and represents good land use practices, as it ensures the orderly development of the Property with amenities a nd infrastructure that will be beneficial to the community.

Section 7. The City Council further finds that among the public benefits to accrue to the residents of the City as a result of the Development Agreement are:

1. The development of an undeveloped site.

2. The development of onsite infrastructure upgrades that would not occur otherwise.

3. The generation of additional property tax.

4. The stimulation of adjacent areas in the City by introducing new industrial facilities and opportunities.

5. The implementation of numerous City planning and economic development policies which benefit the health and fiscal welfare of the City and its residents.

6. The payment of a public benefit fee from the Developer to the City to offset certain private benefits received by Developer under the DA.

Section 8. 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 9. 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, provided however, if Ordinance adopting Development Agreement No. 22-007 is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, or otherwise do not go into effect for any reason, then this Ordinance shall be null and void and have no further force or effect. T he 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 of Fontana. Thereafter this Ordinance shall be in full force and effect.

APPROVED and ADOPTED this 27th day of June 2023.

READ AND APPROVED AS TO LEGAL FORM:

78 5 of 5

City Attorney

I, Germaine 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 27th day of June 2023, and was finally passed and adopted not less than five days thereafter on the 11th day of July 2023 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

79 Exhibit A
EXHIBIT "A"

DEVELOPMENT AGREEMENT

80 Exhibit A

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. 22-007

A DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation
(“City”)

and

ACACIA REAL ESTATE GROUP, INC.,
(“Owner”)

81 Exhibit A
DEVELOPMENT AGREEMENT NO. 22-007
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 Acacia Real Estate Group, Inc. (hereinafter, “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 southeast corner of Sierra Avenue and Duncan Canyon Road (APNs: 0239-151-19-0000, 0239-151-25, 0239-151-26 and 0239-151-36), 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 , considered, and certified the Environmental Impact Report (“EIR”) for the North Fontana Business Center of which the Project, as that term is defined below, is a part , and made findings concerning the mitigation measures for the Project, 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 Master Case (MCN) 21 -099, General Plan Amendment No. 21 -005, Zoning Code Amendment No. 20-007, Tentative Parcel Map No. 20608 (TPM No. 21 -022), and Design Review No. 21-039 Building (collectively, the “Project”).

WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and any Specific Plan applicable thereto; and 82 Exhibit A
WHEREAS, all actions taken and approvals g iven 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 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 necess ary 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 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 followin g 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, s tructure, improvement or facility after the construction and completion thereof.

1.1.4 “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;
83 Exhibit A
(b) tentative parcel maps;
(c) General Plan and Zoning Code amendments; and,
(d) grading, encroachment and building permits.

1.1.5 “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.

1.1.6 “Development Impact Fee” means a monetary exaction other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of proje cts 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 develop ment 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).

1.1.7 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations , as those terms are defined herein, applicable to development of the Property.

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

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

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

1.1.11 “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, timing and phasing of development, 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:
84 Exhibit A
(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.

1.1.12 “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.

1.1.13 “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 “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.

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

1.1.16 “Public Benefit Fee” means the one -time public benefit fee described in Section 4.3 of 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.
85 Exhibit A

2.1 Binding Effect of Agreement . The Property is hereby made s ubject 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 Term. 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 t he 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 l east ninety (90) days written notice to CITY prior to the expiration of the initial term; and

(b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the gross area of the industrial building (s) 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.”

The term of this Agreement shall not be considered to run and shall toll for any period in which the Project is being challenged or litigated by a third-party.

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 substantially similar to that attached hereto as Exhibit “A” which has be en deemed reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing 86 Exhibit A
therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement. (c) 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 Para graph (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 s hall 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 87 Exhibit A
subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other pro visions 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 or temporary 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. Any amendment of thi s Agreement which has been requested by OWNER shall only be processed and considered by the CITY upon the payment of the applicable processing charge.

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.

Termination of this Agreement shall not constitute te rmination 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 88 Exhibit A
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.
(a) As used in this Agreement, “notice” i ncludes, 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, Suite 400
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441

If to OWNER:

Acacia Real Estate Group, Inc.

Attn: David B. Pittman
260 Newport Center Drive, Suite 100
Newport Beach, CA 92660
Telephone: (714) 270-0777

Copy to:

Freeman, Freeman, Smiley
Attn: Jon S. Grizel
5 Park Plaza, Suite No. 650
Irvine, CA 92614
Telephone: (949) 252-2715

89 Exhibit A
(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.

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 o fficial 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.

3.3 Timing of Developm ent. 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 Pr operty 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. Notwithstanding anything to the contrary set forth in this Section 3.3 or in this Agreement, City acknowledges that OWNER shall have no obligation to construct the Project and that OWNER shall not be subject to any penalty nor shall City be entitled to any legal or equitable remedy , including , without limitation, a claim for 90 Exhibit A
specific performance of this Agreement , if OWNER determines not to construct the Project for any reason.

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 c hanges 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 effect uate 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, (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 supplem ental 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 comp liance 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.
91 Exhibit A
(c) Regulations, policies, and rules 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 Exa ctions; 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 o f 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 an d 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 Developm ent 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 condit ionally 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 n ecessary 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. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non -monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other si milar non -monetary relief).
92 Exhibit A

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 t his 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 require ments as would be applicable to CITY or such other public agency should it have undertaken such construction.

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 cost s 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 enforce able 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. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 Tentative Parcel 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.
93 Exhibit A

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 wi ll 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. Accordin gly, 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(s). Development Impact Fees (DIF) shall be paid by OWNER. The DIF amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new DIF or amend the amounts of existing DIF. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, DIF established or imposed by such other public agencies, even though such DIF may be collected 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.
94 Exhibit A

4.3 Public Benefit Fee. Prior to the issuance of the Certificate of Occupancy for the building, as consideration for the privileges conferred by this Agreement, OWNER shall pay to the City a one-time public benefit fee totaling $1,636,432.70.

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 als o 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 faci lities. 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.

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 or as deemed necessary 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 co mpliance 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.
95 Exhibit A
(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 f inding 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 a nd 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 to impose such conditions as are reasonably necessary to obtain compliance with the terms of this Agreement. . The decision of the City Council shall be final, subject only to judicial review pursuant to Se ction 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 written request by OWNER, issue a Certific ate 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 bo und 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.
96 Exhibit A

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. Except as set forth in Section 3.3, above, the parties acknowledge that money damages and remedi es 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 un available 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 term s 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. 97 Exhibit A

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 writt en 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 aft er 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.

8.1 General Plan Litigation . CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan existed as of the Effective Date of this Agreement (“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 Pl an, 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 reasonable 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 98 Exhibit A
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 offi cers, 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, enginee ring, 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 reasonable 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 Environmental Assurances. OW NER 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, and independent contractors for any violatio n 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 expe nse, including reasonable attorneys’ fees, CITY, its officers, agents and employees in any action based or 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 reasonable attorneys’ fees, upon billing and accounting therefor.

8.6 Survival. The provisions of this Sectio ns 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 99 Exhibit A
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 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 San Bernardino County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

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 100

Exhibit A
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.

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.

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, a ll 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.

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.
101

Exhibit A

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 employ ment 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) r uns 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.

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 102

Exhibit A
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 Stat e 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, resid ence 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 pr ocess 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).

10.20 Estoppel Certificate . Within thirty (30) business days following a written request by any of the parties, the other party shall execute and del iver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The fail ure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’s issuance of such certificates.
103

Exhibit A

10.21 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

ACACIA REAL ESTATE GROUP, INC.,
a California corporation

By:

David Pittman
Its: President
Dated:

104

Exhibit A

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)

105

Exhibit A
CITY:

CITY OF FONTANA, a California
municipal corporation

By:_____________________________
Acquanetta Warren, Mayor

Dated: __________________

By: ____________________________
Matthew C. Ballantyne, City Manager

ATTEST:

By:_____________________________
Germaine McClellan Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

________________________________
City Attorney
106

Exhibit A

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)

5703203.2
27967-940
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2319 Agenda Date: 7/11/2023
Agenda #: F. Category: Consent Calendar
FROM:

Administrative Services
SUBJECT:

Adoption of Ordinance No. 1918 (Second Reading)
RECOMMENDATION:

Second Reading of Ordinance No. 1918, an Ordinance of the City Council of the City of Fontana, California, amending sections 1-1, 1-2, 1-7 and 1-14 in Chapter 1 of the Fontana Municipal Code to make the sections more intuitive and to incorporate current best practices; COUNCIL GOALS:
· To create a team by working together to provide stability and consistent policy direction. · To preserve the local environment for generations to come and to create a healthy economic and environmental future by adopting policies that promote compact and efficient development in new and existing communities.

DISCUSSION:

Ordinance No. 1918 was introduced by a vote of 5-0 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

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ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF FONTANA, CALIFORNIA, AMENDING SECTIONS 1-1,
1-2, 1 -7, AND 1 -14 IN CHAPTER 1 OF THE FONTANA

MUNICIPAL CODE TO MAKE THE SECTIONS MORE

INTUITIVE AND TO INCORPORATE CURRENT BEST
PRACTICES.

WHEREAS, the City of Fontana, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, the City Council (“Council”) finds and declares that this Ordinance constitutes a val id exercise of police power in accordance with Article XI, Section 7 of the California Constitution, is consistent with the General Plan, and furthers the health, safety, and general welfare of the residents of the City of Fontana; and WHEREAS, after a rev iew of the Fontana Municipal Code (“FMC”), the City has identified several provisions that are in need of amendment and refinement; and WHEREAS, in order to make the FMC clearer, easier to use and understand, and to incorporate current best practices, Council finds that it is necessary to amend certain provisions of the FMC; and
WHEREAS, City staff has carefully reviewed every existing provision of Chapter 1 of the FMC and has made recommendations for amendments and updates thereto; and WHEREAS, the City h eld a noticed public hearing on June 13, 2023 , at which time all interested persons had the opportunity to appear and be heard on the matter of adopting this instant Ordinance; and
WHEREAS, Council desires to revise Chapter 1 of the FMC to make it clearer , easier to use and understand, and to incorporate current best practices.

NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Fontana as follows:

SECTION 1. Incorporation of recitals. The recitals are true and correct and incorporated herein by this reference.

SECTION 2. Amendment of Municipal Code. Chapter 1 “General Provisions .” is hereby amended to read as follows:
“Sec. 1-1. How Code Designated and Cited.

The ordinances of the City of Fontana as revised, amended, codified and compiled in boo k form are hereby adopted as and shall constitute as the “Fontana Municipal Code," or may also be referred to herein as the “Code of the City of Fontana” and may be so cited. 109
Sec. 1-2. Definitions and rules of construction.

For the purposes of this Code, unless otherwise apparent from the context, certain words and phrases used in this Code are defined as follows:
(A) City. The words "the City" or "this City" shall be construed as if followed by the words "of Fontana."
(B) Code. The words "the Code" or "this Code" shall mean the Fontana Municipal Code. (C) Computation of time. The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.
(D) Council. Whenever the words "Council" or "City C ouncil" are used, they shall be construed to mean the city council of the City of Fontana. (E) County. The words "the county" or "this county" shall mean the County of San Bernardino, California.
(F) Day. A day is the period of time between any midnight and the midnight following. (G) Daytime; nighttime. The word "daytime" means the period of time between sunrise and sunset. The word "nighttime" means the period of time between sunset and sunrise. (H) Gender. The masculine gender includes the feminine and neuter genders. (I) In the city. The words "in the city" shall mean and include all territory over which the city now has or shall hereafter acquire the jurisdiction for the exercise of its police powers or other regulatory powers.
(J) Joint authority. All words giving a joint authority to three or more persons or officers shall be construed as giving such authority to a majority of such persons or officers. (K) Month. The word "month" shall mean a calendar month. (L) Number. The singular number includes the plural, and the plural the singular. (M) Oath. The word "oath" includes affirmation.
(N) Officers, departments, etc. Officers, departments, boards, commissions and employees referred to in this Code shall mean officers, departments, boards, commi ssions and employees of the City of Fontana, unless the context clearly indicates otherwise. (O) Official time. Whenever certain hours are named they shall mean Pacific Standard Time or Daylight Saving Time, as may be in current use in the city and state. (P) Or; and. "Or" may be read "and," and "and" may be read "or," if the sense requires it. 110
(Q) Person. The word "person" includes any person, firm, association, organization, partnership, business trust, corporation or company.
(R) Preceding; following. The words "preceding" and "following" mean next before and next after, respectively.
(S) Process. The word "process" includes a writ or summons issued in the course of judicial proceedings of either a civil or criminal nature.
(T) Property. The word "property" shall include real and personal property. (U) Shall; may. The word "shall" is mandatory, and the word "may" is permissive. (V) Signature or subscription by mark. "Signature" or "subscription" includes a mark when the signer or subscr iber cannot write, such signer's or subscriber's name being written near the mark by a witness who writes his own name near the signer's or subscriber's name; but a signature or subscription by mark can be acknowledged or can serve as a signature or subscription to a sworn statement only when two witnesses so sign their own names thereto. (W) State. The words "the state" or "this state" shall mean the State of California. (X) Tense. The present tense includes past and future tenses, and the future tense includes the present tense.
(Y) Week. The word "week" means seven consecutive days. (Z) Writing. The word "writing" includes any form of recorded message capable of comprehension by ordinary visual means. Whenever any notice, report, statement or record i s required or authorized by this Code, it shall be made in writing in the English language, unless expressly provided otherwise.
(AA) Year. The word "year" shall mean a calendar year, except where otherwise provide Sec. 1-7. General penalty; continuing violations.

It shall be unlawful for any person to violate any provision or to fail to comply with any of the requirements or provisions of this Code heretofore or hereafter en acted or the provisions of any code adopted by reference by this Code. Every act prohibited or declared unlawful, and every failure to perform an act made mandatory, shall be a misdemeanor or an infraction, at the discretion of the City Attorney or the District Attorney. Any person continuing or committing a violation of any provision of this Code declaring any act or omission to be unlawful is guilty of a separate offense for each and every day which any violation is committed. (a) Misdemeanor penalty. Every violation of a provision of this Code which is specifically designated as a misdemeanor shall be punishable by a fine of not more than $1,000.00 or imprisonment for a term not exceeding six months, or by both such fine and imprisonment.
111
(b) Infraction penalty. Every violation of this Code prosecuted as an infraction shall be punishable by a fine not exceeding $500.00.
(c) Civil penalty. Every violation of a provision of this Code which is specifically designated to carry a civil penalty, in addition to a criminal penalty, shall be punishable by a civil fine not exceeding $1,000.00, unless otherwise specifically provided and authorized by state law. Nothing set forth herein shall limit the ability of the city to seek and obtain other remedies permitted by law.

As used in this section, the term "year" means any consecutive 12-month period.

As used in this section, the term "offense" includes any violation of the Code which is cited or charged and which does not result in:
(1) An acquittal.
(2) A finding of "not guilty."
(3) A dismissal of charges by the city or the court.

State l aw reference(s) —Authority of city to impose fines not exceeding $1,000.00 and imprisonment for terms not exceeding six months or both for misdemeanor violations of ordinances, Government Code section 36901; provisions declaring violations of ordinances to be a misdemeanor unless declared an infraction, Government Code section 36900; authority of city to impose graduated fines of $100.00, $200.00 and $500.00 with each successive violation designated as an infraction, Government Code section 36900.” SECTION 3 . Environmental r eview. This Ordinance is not a project within the meaning of Section 1538 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly o r indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt for the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of San Bernardino in accordance with CEQA Guidelines.

SECTION 4: Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remainder of the Ordinance. Council hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions may be declared invalid or unconstitutional.

SECTION 5. Effective Date. The Ordinance shall become effective thirty (30) days following its passage and adoption.
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SECTION 6 . Publication. The City Clerk shall attest to th e passage and adoption of this Ordinance and cause a summary of the same to be published as required by law.

SECTION 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.

PASSED, APPROVED AND ADOPTED this ____ day of __________, 2023.

________________________________
Acquanetta Warren, Mayor
City of Fontana

________________________________
Germaine McClellan Key
City Clerk

Read and Approved as to form:

Best, Best & Krieger, LLP.

__________________________________
Ruben Duran, City Attorney

113
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2320 Agenda Date: 7/11/2023
Agenda #: G. Category: Consent Calendar
FROM:

Administrative Services
SUBJECT:

Adoption of Ordinance No. 1921 (Second Reading)
RECOMMENDATION:

Second Reading of Ordinance No. 1921, an Ordinance of the City Council of the City of Fontana, California, amending section 20-27 of the Fontana Municipal Code to revise the process of modifying the specifications for an employment position such that it requires only City Manager approval.

COUNCIL GOALS:
· To create a team by working together to provide stability and consistent policy direction.

DISCUSSION:

Ordinance No. 1921 was introduced by a vote of 5-0 at the June 27, 2023, Regular City Council meeting.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

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-1-
ORDINANCE NO. ______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF FONTANA, CALIFORNIA, AMENDING SECTION 20-27

OF THE FONTANA MUNICIPAL CODE TO REVISE THE

PROCESS OF MODIFYING THE SPECIFICATIONS OF AN

EMPLOYMENT POSITION SUCH THAT IT REQUIRES

ONLY CITY MANAGER APPROVAL
WHEREAS, the City of Fontana, California (the “City”) is a municipal corporation, duly organized under the constitution and laws of the State of California; and WHEREAS, Government Code section 45001 grants a legislative body of a city the authority to establish a personnel system, merit system or civil service system for the selection, employment, classification, advancement, suspension, discharge, and retirement of appointive officers and employees; and
WHEREAS, Government Code section 45004 prov ides the legislative body of a city with the authority to appoint a personnel officer, to which it may delegate powers and duties related to its personnel system; and
WHEREAS, the City Council (“Council”) finds and declares that this Ordinance constitutes a valid exercise of police power in accordance with Article XI, Section 7 of the California Constitution, is consistent with the General Plan, and furthers the health, safety, and general welfare of the residents of the City of Fontana; and
WHEREAS, on March 16, 1954 Council adopted Ordinance No. 58 creating the position of Personnel Officer, and delegating such duties that aid in establishing and maintaining the City’s personnel system, merit system, and civil service system; and WHEREAS, the City hereby wishes to amend Chapter 20, Section 27 of the Fontana Municipal Code (“FMC”) to revise the process of modifying the specifications of an employment position such that it does not require Council direction and approval; and WHEREAS, the City hereby wishes to amend Chapter 20, Section 27 of the FMC to revise the process of modifying the specifications of an employment position such that it only requires City Manager direction and approval; and
WHEREAS, the City held a noticed public hearing on June 13, 2023, at which time all interested persons had the opportunity to appear and be heard on the matter of adopting thi s instant Ordinance; and
WHEREAS, Council desires to revise the process of modifying the specifications of an employment position to provide a more efficient administration.

NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Fontana as follows:
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2 SECTION 1. Incorporation of recitals. The recitals are true and correct and incorporated herein by this reference.

SECTION 2. Amendment of the Municipal Code. “Personnel Officer.” Section 20-27 of the FMC is hereby amended to read as follows:
“There is hereby created the position of Personnel Officer. The term, Personnel Officer, as used in this Code, shall mean the Human Resources Director or such other person as may be designated to perform the duties in accordance with this chapter. The duties of the Personnel Officer may be combined with those of any other office or position. If such duties are not combined with those of any other office or position, the Personnel O fficer shall have had training or experience in personnel administration. The Personnel Officer shall:
(1) Administer all the provisions of this article and of the personnel rules no t specifically reserved to the Council.
(2) Prepare and recommend revisions and amendmen ts to the personnel rules. The City Attorney shall approve the legality of such revisions and amendments prior to their submission to the Council.
(3) Under the direction and approval of Council, prepare a position classification plan and revisions of the plan. The plan, and any revisions thereof, shall become effective upon approval of the Council.
(4) Under the direction of the City M anager, prepare class specifications and revisions thereof. The class specifications, and revisions thereof, shall become effective upon approval of the City Manager.
(5) Under the direction of Council, prepare a plan of compensation, and revisions thereof, covering all classification titles in the competitive service. The plan, and any revisions thereof, shall become effective upon approval by Council.
(6) Publish or pos t notices of tests for positions in the competitive service, receive applications therefor, conduct and grade tests, and forward to the appointing power a list of all persons eligible for appointment to the appropriate position in the competitive service.” SECTION 3. Environmental review. This Ordinance is not a project within the meaning of Section 1538 of the State of California Environmental Quality Act (“CEQA”) Guidelines, because it has no potential for resulting in physical change in the environment, directly or indirectly. The City Council further finds, under Title 14 of the California Code of Regulations, Section 15061(b)(3), that this Ordinance is nonetheless exempt for the requirements of CEQA in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Council, therefore, directs that a Notice of Exemption be filed with the County Clerk of the County of San Bernardino in accordance with CEQA Guidelines.
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3 SECTION 4. Severability. If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held to be invalid or unconstitutional by any court of competent jurisdiction, such decision shall not affect the validity of the remainder of the Ordinance. The City Council hereby declares that it would have adopted this Ordinance, and each section, subsection, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, sentences, clauses, phrases, or portions may be declared invalid or unconstitutional.

SECTION 5 . Effective Date. The Ordinance shall become effective thirty (30) days following its passage and adoption.

SECTION 6: Publication. The City Clerk shall attest to the passage and adoption of this Ordinance and cause a summary of the same to be published as required by law.

SECTION 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.

PASSED, APPROVED AND ADOPTED this ____ day of __________, 2023.

________________________________
Acquanetta Warren, Mayor
City of Fontana

________________________________
Germaine McClellan Key
City Clerk

Read and Approved as to form:

Best, Best & Krieger, LLP.

__________________________________
Ruben Duran, City Attorney

117
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2289 Agenda Date: 7/11/2023
Agenda #: H. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Acceptance of Final Map of Parcel Map No. 20235
RECOMMENDATION:

Accept final Parcel Map No. 20235 located east of Redwood Avenue and north of Washington Drive; accept as public dedicated streets and easements; and authorize the Mayor and City Clerk to certify the abandonment of certain portions of street right of way as shown on said map.

COUNCIL GOALS:
· To invest in the City’sinfrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.

DISCUSSION:

On August 17, 2021, the City of Fontana Planning Commission approved Tentative Parcel Map No. 20235 and Design Review No. 20-019 to consolidate six parcels into one parcel totaling approximately 10.83 adjusted gross acres to construct a 247,786 square foot industrial warehouse building. The project is located east of Redwood Avenue and north of Washington Drive.

As part of this subdivision, portions of excess road right of way on Washington Drive are no longer needed and will be abandoned. Pursuant to Section 66434(g) and 66499.20.2 of the Subdivision Map Act, the City Clerk must certify the abandonment of those certain portions of the easements granted to the City of Fontana for street and public utility purposes. In accordance with the Subdivision Map Act, the map is now being brought to the City Council for final approval.

FISCAL IMPACT:

This action will only approve the parcel map for recordation and authorize permits for the construction of the development, therefore there is no fiscal impact to City resources at this time.

MOTION:

Approve staff recommendation.

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City of Fontana
Department of Engineering, Land Development Section
Regular City Council Meeting
PARCEL MAP NO. 20235

CITY OF FONTANA, CALIFORNIA
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122
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2297 Agenda Date: 7/11/2023
Agenda #: I. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Acceptance of Final Map for Tract No. 20070
RECOMMENDATION:

Approve the Final Map for Tract No. 20070 located along Coyote Canyon Road north of Duncan Canyon Road and accept easements.

COUNCIL GOALS:
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.

DISCUSSION:

Tract No. 20070 is located along the south side of Coyote Canyon Road north of Duncan Canyon Road. The subdivision consists of 124 condominium units.

The Tentative Tract Map No. 20070 (TTM16-000017) was conditional approved by the Planning Commission on February 26th, 2019. All conditions precedent to submitting the final map have been completed by the applicant. The subdivider, Arroyo Cap II-6, LLC, A Delaware Limited Liability Company, has complied with all the Conditions of Approval and has dedicated the required streets and easements as a part of the project. The tract map has been reviewed by the City Engineer and is found to be substantially in conformance to the approved tentative tract map.

The Subdivision Agreement for the construction of public infrastructure was previously approved by City Council on April 11th, 2023, as a part of Final Tract Map No. 20010.

FISCAL IMPACT:

This action will only approve the tract map for recordation and authorize permits for the construction of the development, therefore there is no fiscal impact to City resources at this time.

MOTION:

Approve staff recommendation.

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VICINITY MAP
6PROJECT SITE
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2300 Agenda Date: 7/11/2023
Agenda #: J. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Award a Construction Contract for the Arrow Boulevard at Tokay Avenue Traffic Signal Project.

RECOMMENDATION:

1. Award bid and authorize the City Manager to execute a construction contract with Baker Electric Inc. for the construction of the Arrow Boulevard at Tokay Avenue Traffic Signal Project in the amount of $1,237,500.35 and authorize a 10% contingency in the amount of $123,750 (Bid No. SB-113-DE-23).

2. Appropriate $200,000.00 from Measure I Fund 246 to the Arrow Boulevard at Tokay Avenue Traffic Signal Project No. 3354.

3. Approve and authorize the City Manager to execute any and all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Arrow Boulevard at Tokay Avenue Traffic Signal Project.

COUNCIL GOALS:
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by focusing on relief of traffic congestion.
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by utilizing Measure-I Funds wisely.

DISCUSSION:

This project is a component of a comprehensive transportation improvement and traffic management program. Engineering staff regularly conducts studies of intersections throughout the City to determine the need for new traffic signals to aid in circulation and ease congestion. The subject traffic signal is needed to enhance intersection safety and traffic circulation.

This intersection is identified on the City’sTraffic Signal Priority List. Implementation of a traffic signal at this intersection will improve traffic flow and enhance intersection safety. In addition to the traffic signal, the project includes intersection lighting, minor road improvements, pavement resurfacing, City of Fontana Printed on 7/6/2023Page 1 of 2
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File #: 21-2300 Agenda Date: 7/11/2023
Agenda #: J. Category: Consent Calendar
signal, the project includes intersection lighting, minor road improvements, pavement resurfacing, and new signing and striping.

On May 11, 2023, at 2:00 p.m., bids for this contract were opened. A total of seven (7) bids were received ranging from $1,237,500.35 to $2,071,034.00. Baker Electric Inc. submitted the apparent lowest bid in the amount of $1,237,500.35. The Engineer's estimate is $979,804.

After reviewing the proposed bid documents and performing the reference checks, Engineering staff has determined Baker Electric Inc. to be the lowest responsible and responsive bidder.

Staff is also requesting an additional amount at the Fiscal Year 2023/2024 First Quarter adjustment to cover the difference in the construction cost. The First Quarter adjustment request amount is $200,000.00.

FISCAL IMPACT:

The fiscal impact associated with the approval of this item is $1,361,250, including 10% contingency.

There is $1.29 million in available budget in FY 2022-2023 in Measure I - Fund 246. An additional $200,000 is being requested in 37603354-246-A-8330 and is not included in the FY 2023-2024 budget. The request will be submitted in the next quarterly budget report and will be funded by Measure I Fund 246.

MOTION:

Approve Staff Recommendation.

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N01 inch = 600 feet1200600
PROJECT LOCATIONARROW BLVD AND TOKAY AVETRAFFIC SIGNAL PROJECT(PN 3354) 132
Bid Results
Arrow Boulevard @ Tokay Avenue
Traffic Signal Project
SB-113-DE-23

Baker Electric, Inc. $1,237,500.35
Escondido, CA

Select Electric, Inc. $1,368,068.00
Vista, CA

International Line Builders, Inc. $1,439,371.00
Corona, CA

Elecnor Belco Electric, Inc. $1,463,164.00
Chino, CA

California Professional
Engineering, Inc. $1,662,359.00
La Puente, CA

All American Asphalt $1,903,997.00
Corona, CA

DBX, Inc. $2,071,034.00
Temecula, CA

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City of Fontana
ARROW BOULEVARD AT TOKAY AVENUE TRAFFIC SIGNAL PROJECT (SB-113-DE-23), bidding on 05/11/2023 2:00 PM (PDT)

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PlanetBids, Inc.
134
City of Fontana
ARROW BOULEVARD AT TOKAY AVENUE TRAFFIC SIGNAL PROJECT (SB-113-DE-23), bidding on 05/11/2023 2:00 PM (PDT)

Printed 06/20/2023
PlanetBids, Inc.
135
City of Fontana
ARROW BOULEVARD AT TOKAY AVENUE TRAFFIC SIGNAL PROJECT (SB-113-DE-23), bidding on 05/11/2023 2:00 PM (PDT)

Printed 06/20/2023
PlanetBids, Inc.
136
City of Fontana
ARROW BOULEVARD AT TOKAY AVENUE TRAFFIC SIGNAL PROJECT (SB-113-DE-23), bidding on 05/11/2023 2:00 PM (PDT)

Printed 06/20/2023
PlanetBids, Inc.
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2307 Agenda Date: 7/11/2023
Agenda #: K. Category: Consent Calendar
FROM:

Public Works
SUBJECT:

Final Acceptance of the Construction of the Valley Boulevard/Kaiser Sewer Project - Bid No. SB-19- PW-22
RECOMMENDATION:

1. Accept as complete the work performed by GRBCON Inc. for the Valley Boulevard/Kaiser Sewer Project and approve the final construction amount of $872,225.55

2. Adopt Resolution No. 2023-055, accepting a new parallel sewer main in Valley Boulevard.

COUNCIL GOALS:
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.
· Invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.

DISCUSSION:

On December 14, 2021, the City Council awarded a construction contract to GRBCON Inc. for the construction of the Valley Boulevard/Kaiser Sewer Project.

GRBCON Inc. completed the construction of the project on May 22, 2023. All work has been completed to the satisfaction of the City. This project was necessary in order to increase the capacity of our sewer system and to repair deficiencies in the existing sewer line.

The retention money will be released to the contractor thirty-five (35) days after the filing of the Notice of Completion with the County Recorder’s Office if no claims are filed with the City within this period.

FISCAL IMPACT:

This project was funded in the Fiscal Year 2018/2019 adopted budget in Sewer Replacement Fund 703, Project 38104332.

MOTION:

Approve Staff Recommendation
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RESOLUTION NO. 2023-____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA

ACCEPTING THE SEWERS IN VALLEY BOULEVARD AS PART OF
THE CITY’S SEWER SYSTEM

WHEREAS, Section 23 -388 of the Code of the City of Fontana provides that each addition to or exte nsion of the sewer systems shall be accepted by Resolution of the City Council; and

WHEREAS, the Resolution of Acceptance shall contain the terms of any special consideration which shall apply to the sewer so accepted; and

NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Fontana hereby accepts as a part of the City’s sewer system the sewer mains constructed within and part of Valley Boulevard is located east of Sierra Avenue and west of Palmetto Avenue.

APPROVED AND ADOPTED this 11th day of July, 2023.

____________________________________
City Attorney

I, Germaine Key , City Clerk and Ex -Officio Clerk of the City of Fontana, California, do hereby certify th at the foregoing Resolution is the actual Resolution duly and regularly adopte d by the City Council at a regular meeting of said City Council on the 11th day of July, 2023, by the following 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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