10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
10.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shal l 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 212
terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.
10.17 Further Actions and Instruments . Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent a nd 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 addr esses, 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, submi ts 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 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 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 213
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 she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants a nd 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:
214
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)
215
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
216
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
217
NOTICE OF DETERMINATION
TO: _X_ County Clerk, County of FROM: City of Fontana San Bernardino Planning Department
8353 Sierra Avenue
___ Office of Planning and Research Fontana, CA 92335
SUBJECT: Filing of Notice of Determination in Compliance with Section 21152 of the Public Resources Code.
Project Title: Master Case (MCN) No. 20-099: General Plan Amendment No. 2 2-004, Zone Change No. 2 2- 005, Specific Plan Amendment No. 22 -002, Development Agreement No. 2 3-005, Tentative Parcel Map No. 20709 (TPM No. 22 -009) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22 -031) (Building No. 3) , Design Review No. 22 -029 (Building No. 1), Design Revie w No. 22 -061 (Building No. 2), and Design Review No. 22-062 (Building No. 3).
State Clearinghouse Number: 2022110389
Name of Person or Agency carrying out project: Doug Hinrichs, Acacia Real Estate Development c/o HPA Inc., 18831 Bardeen Ave., Suite No. 100, Irvine, CA 92612.
Project Location: The Project Site is located north of Santa Ana Avenue and between Citrus Avenue and Oleander Avenue, and at the northeast corner of the Santa Ana Avenue and Oleander Avenue int ersection. The approxi mately 29.8 -acre Project Site includes 18 parcels, including Assessor Parcel Numbers (APNs) 0255 -011-13, -14, -15, -18, -19, -25, -26, - 27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24.
Project Description: Master Case No. 22 -053: General Plan A mendment (GPA) No. 22 -004, Zone Change Application ( ZCA) No. 22 -005, Specific Plan Amendment (SPA) No. 22 -002 and Development Agreement (DA) No. 23 -005, Design Review (DRP) No. 22 -029 (Building No. 1), Tentative Parcel M ap (TPM) No. 22 -009 (Building No. 1) , Design Review No. 22 -061 (Building No. 2), Tentati ve Parcel Map (TPM) No. 22 -030 (Building No. 2), Design Review No. 22 -062 (Building No. 3), Tentative Parcel Map (TPM) No. 22 -031 (Building No. 3) - a request for the development of three ( 3) industrial commerce buildings totaling approximately 540,849 square feet within three project sites totaling 24.4 acres and associated on -site and off -site improvements. No development is currently proposed on APN 0255-011-15 (5 acre site).
This is to certify that th e City of Fontana approved the above described project on June 20 , 2023 and made the following determinations:
1. The project __X__ will ___ will not have a significant effect on the environment.
2. An Environmental Impa ct Report (EIR) was prepared and fully analyzed the effects of the project. The EIR thoroughly analyzed and discussed all potential environmental impacts.
3. Mitigation measures X were ____ were not made a condition of the approval of the project.
4. A Statement of Overriding Considerations X_ was __ was not adopted for this project.
5. Findings X were ___ were not made pursuant to the provisions of CEQA.
6. The location and custodian of the documents which compris e the record of proceedings for the Addenda are specified as follows:
Custodian: City of Fontana, Planning Department
Location: 8353 Sierra Avenue, Fontana, CA 92335
ATTACHMENT NO. 12 218
____________________________
DiTanyon Johnson
Principal Planner
Date Received for Filing
219
NOTICE OF PUBLIC HEARING
SI DESEA INFORMACION EN ESPAÑOL REFERENTE A ESTA NOTIFICACION O PROYECTO, FAVOR DE COMUNICARSE AL (909) 350-6728.
In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons with a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.
A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE PLANNING COMMISSION OF THE CITY OF FONTANA FOR THE FOLLOWING:
Master Case (MCN) No. 22 -053, General Plan Amendment (GPA) No. 22 -004, Zone Change Application (ZCA) No. 22-005, Specific Plan Amendment (SPA) No. 22-002, Development Agreement (AGR) No. 23- 005, Design Review (DRP) No. 22-029 (Building No. 1), Tentative Parcel Map (TPM) No. 2 0709 (TPM No. 22-009, Building No. 1), Design Review No. 22-061 (Building No. 2), Tentative Parcel Map (TPM) No. 20708 (TPM No. 22-030, Building No. 2), Design Review No. 22-062 (Building No. 3), Tentative Parcel Map (TPM) No. 20707 (TPM No. 22-031, Building No. 3): a request for the development of approximately 24.4 acres of a
29.4-acre property (APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255- 021-17, -18, -22, -23, and -24) with three industrial commerce center buildings having maximum sizes of 151,618 square feet (s.f., Building No. 1), 196,336 s.f. (Building No. 2), and 192,895 s.f. (Building No. 3) with a total of 504,849 s.f. and improvements to the sites which include screen walls, vehicular parking areas, drive aisles, and landscaping. The project will consolidation various parcels into 1 parcel for the development of Building Nos. 1 through 3; revision of the site’s General Plan land use designation from Residential Planned Community (R‐PC) and Multi-Family Medium/High Density Residential (R-MFMH) to General Industrial (I‐G); revision of the zoning designation from Residential Planned Community (R‐PC) and Multi‐Family Medium/High Density Residential (R‐ 4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District; and revision of the S WIP Specific Plan to expand the SWIP boundaries to include the Project Site . The applicant has also prepared a development agreement.
Environmental
Determination:
This project has been
determined to have a
significant effect on the
environment and a Draft
Environmental Impact
Report (EIR) (SCH No.
2022110389) has been
prepared pursuant to
Sections 15080 to 15097
and Section 15163 of the
California Environmental
Quality Act (CEQA).
Location of
Property:
The Project Site is located north of Santa Ana Avenue, between Citrus Avenue and Oleander Avenue, and at the northeast corner of the Santa Ana Avenue and Oleander Avenue intersection. The approximately 29.8-acre Project Site includes 18 parcels, including Assessor Parcel Numbers (APNs) 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, - 30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24.
ATTACHMENT NO. 13 220
Date of
Hearing:
June 20, 2023
Place of
Hearing:
City Hall Council
Chambers
8353 Sierra Avenue
Fontana, CA 92335
Time of
Hearing:
6:00 P.M.
The City of Fontana (City) has prepared a Final Environmental Impact Report (FEIR) for the proposed project.
The FEIR is available for review at City Hall (8353 Sierra Avenue Fontana, CA 92335) and online at Environmental Documents | Fontana, CA - Official Website (fontanaca.gov). Should you have any questions concerning this project, please contact Salvador Quintanilla, Senior Planner, at (909) 350-6656. E-mail:
[email protected]
ANY INTERESTED PARTY MAY PROVIDE INFORMATION BY LETTER OR EMAI L WHICH MAY BE OF ASSISTANCE TO THE PLANNING COMMISSION. A COPY OF THE APPLICATION AND ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION. PLEASE CONTACT THE PLANNER LISTED ABOVE.
IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU MAY
BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE PUBLIC
HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.
Publish: June 9, 2023
221
PUBLIC COMMENTS FOR MCN NO. 22-053
FROM PLANNING COMMISION MEETING
JUNE 20, 2023