Facts in Support of Finding: Typically, residential development increases the need for new parks and increases the use of existing citywide park facilities. The proposed warehouse development would not provide new housing opportunities. Furthermore, employees needed to operate the Project are anticipated to come from within the Project region, as described previously. Although employees may occasionally use local parks, such an increase in use would be limited and would not result in deterioration of facilities such that the construction or expansion of recreational facilities would be necessary. Therefore, any increased demand for public parks within the city would be considered a less than significant impact.
Impact Finding: The Project would result in substantial adverse physical impacts associated with other government services or the provision of new or physically altered public facilities (DEIR
Facts in Support of Finding: The Project would not result in a direct increase in the City’s population as no residential uses are proposed and the workforce will likely be local. As such, the proposed Project would not directly create a demand for public library facilities or public health care facilities, nor would it directly result in the need to modify existing or construct new public service facilities. Additionally, the proposed Project would adhere to the payment of Development Impact Fees as outlined in Chapter 5 of the Fontana Municipal Code to ensure a fair share of costs associated with the proposed Project are paid for public facilities, including library facilities.
Therefore, the Project would result in a less than significant impact related to library services.
Transportation
Impact Finding: The Project would not conflict with a program, plan, ordinance, or policy addressing the circulation system, including transit, roadway, bicycle, and pedestrian facilities (DEIR Page 5.14-6 to 5.14-7).
Facts in Support of Finding: As shown in the DEIR Table 5.14-1, the proposed Project would generate 23 new Passenger Car Equivalent (PCE) trips during the AM peak hour and 25 new PCE trips during the PM peak hour. Therefore, the Project would not meet the criteria for requiring preparation of a traffic analysis, and the Project would not result in vehicle trips that could conflict 511
with a program, plan, or policy addressing the circulation system, and impacts would be less than significant.
In addition, as part of the grading plan and building plan review processes, the City permits would require appropriate measures to facilitate the passage of persons and vehicles through/around any required road closures (as applicable). Therefore, construction impacts related to conflict with an applicable plan, ordinance, or policy establishing measures of effectiveness for the performance of the circulation system would be less than significant.
Transit: As described previously, the Project vicinity is served by OmniTrans Route 82, and the closest bus stop is located 0.25 mile from the Project site. This existing transit service would continue to serve its ridership in the area and may also serve employees of the Project. The proposed Project would not alter or conflict with existing transit stops and schedules, and impacts related to transit services would not occur.
Bicycle Facilities: As detailed previously, bicycle lanes currently exist on Citrus Avenue; and the General Plan includes Class II bicycle lanes along Poplar Avenue and Santa Ana Avenue. The Project would not result in any conflicts with the existing or planned bike lanes. Thus, impacts related to bicycle facilities would not occur.
Pedestrian Facilities: As detailed previously, sidewalks currently exist on portions of Poplar Avenue and Catawba Avenue. Implementation of the Project would include roadway improvements on Poplar Avenue and Catawba Avenue that include new sidewalks along the Project frontages. Because no sidewalks currently exists along the Project site frontages, the Project would improve pedestrian facilities and the sidewalk network. The proposed Project would not conflict with pedestrian facilities, but instead would provide additional facilities. Thus, impacts related to pedestrian facilities would not occur.
Impact Finding: The project would not conflict or be inconsistent with CEQA Guidelines Section 15064.3, Subdivision B (DEIR 5.14-7 to 5.14-9).
Facts in Support of Finding: The City of Fontana’s Transportation Impact Analysis Guidelines state that projects which would generate fewer than 500 ADT would not cause a substantial increase in the total citywide or regional VMT and are considered to have a less than significant VMT impact and would not require further analysis of VMT. As shown in Table 5.14-1, the Project would result in an increase of 300 daily trips. Because the project would generate an increase of less than 500 ADT, it would satisfy the requirements for Screening Criteria 4 – Net Daily Trips less than 500 ADT. Therefore, the Project is presumed to have a less than significant impact on VMT, and no further VMT analysis is required.
Impact Finding: The Project would not substantially increase hazards due to a geometric design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment) (DEIR 5.14-11).
Facts in Support of Finding: The proposed industrial development includes only a light industrial warehouse facility. There are no proposed uses that would be incompatible. Access to the Project site would be provided from two driveways along Poplar Avenue and two driveways along Santa Ana Avenue. Separate passenger vehicle driveways would be provided to limit potential incompatibility between trucks and passenger car movements. Onsite circulation design provides fire truck accessibility and turning ability throughout the site. The Project includes paving and 512
ROW improvements, including streetlights, curb, gutter, sidewalk, and parkway landscape along the Project site frontage of Poplar Avenue and Santa Ana Avenue. Sight distance at the Project driveways would be reviewed to ensure compliance with City standards at the time of final grading, landscape, and street improvement plan reviews. Compliance with existing regulations would be ensured through the City’s development permitting process. As a result, impacts related to vehicular circulation design features would be less than significant.
Impact Finding: The Project would not result in adequate emergency access (DEIR 5.14-11).
Facts in Support of Finding: The proposed Project would not result in inadequate emergency access. Direct access to the proposed Project would be from two driveways along Poplar Avenue and two driveways along Santa Ana Avenue, which are directly adjacent to the site. Construction activities would occur within the proposed Project site and would not restrict access of emergency vehicles to the site or adjacent areas. In addition, travel along Poplar Avenue and Santa Ana Avenue would remain open and would not interfere with emergency access in the site vicinity.
The proposed Project is required to design and construct internal access, and size and location of fire suppression facilities (e.g., hydrants and sprinklers) to conform to Fontana Fire Protection District standards. The Fontana Fire Protection District would review the development plans prior to approval to ensure adequate emergency access pursuant to the requirements in Section 503 of the California Fire Code (Title 24, California Code of Regulations, Part 9). As such, the proposed Project would not result in inadequate access, and impacts would be less than significant.
Utilities and Service Systems
Impact Finding: The Project would not require or result in the relocation or construction of new water facilities, or expansion of existing facilities, the construction of which could cause significant environmental effects (DEIR Page 5.16-8).
Facts in Support of Finding: The Project site is currently served by the Fontana Water Company (FWC) water infrastructure. The Project would connect to the existing water infrastructure and would construct new 3-inch water lines that would connect to the existing 4-inch water line along Poplar Avenue. No offsite water line extensions are required. The construction activities related to the new onsite water infrastructure that would be needed to serve the proposed warehouse facility is included as part of the Project and would not result in any physical environmental effects beyond those identified throughout the DEIR. For example, construction emissions for excavation and installation of the water infrastructure are included in DEIR Sections 5.2, Air Quality, and 5.7, Greenhouse Gas Emissions. Therefore, the proposed Project would not result in the construction of new water facilities or expansion of existing facilities, the construction of which could cause significant environmental effects, and impacts would be less than significant.
Impact Finding: The Project would have sufficient water supplies available to serve the Project and reasonably foreseeable development during normal, dry, and multiple dry years (DEIR Page
5.16-8 to 5.16-9).
Facts in Support of Finding: Based on the water use assumptions by population projections per capita in the FWC 2020 UWMP, the Project is anticipated to have a water demand of approximately 75.96 AFY. The 2020 UWMP anticipates that the FWC’s water supply will increase from 45,593 AF in 2025 to 51,943 AF in 2045 (increase of 6,350 AF) to meet the FWC’s 513
anticipated growth in water demands and concluded that FWC has an adequate water supply to meet all demands within its service area through 2045. Further, FWC anticipates an increase in industrial demand from 4,010 in 2025 to 4,312 in 2045 and in total demand from 44,593 AFY in 2025 to 48,943 AFY in 2045 within the service area. The Project's additional demands of 75.96 AFY is less than the assumed increase in the forecasted industrial demands in the UWMP; therefore, the Project's relatively small increase in water demand would not cause demand to exceed the 2045 projected industrial demands for FWC.
In addition, according to the 2020 UWMP, FWC has verified that it has the water supplies available during normal, single-dry, and multiple-dry years within a 20-year projection that would meet the projected demand associated with the Project, in addition to existing and planned future uses.
Thus, impacts related to the need for new or expanded water supplies and entitlements would be less than significant.
Impact Finding: The Project would not require or result in the relocation or construction of new wastewater facilities, or expansion of existing facilities, the construction of which could cause significant environmental effects (DEIR Page 5.16-11).
Facts in Support of Finding: The Project would install onsite sewer infrastructure to connect to the existing 8-inch sewer lines in Poplar Avenue and Catawba Avenue including a sewer lift station in the northwest portion of the site in order to accommodate the existing water line. Installation of the onsite sewer infrastructure is part of construction of the proposed Project would not result in any physical environmental effects beyond those described throughout this document.
FWC provides wastewater treatment to the Project area via the Inland Empire Utilities Agency (IEUA). RP-4 is the Regional Water Recycling Plant designated to service the City of Fontana and has a treatment capacity of 14 million gallons per day which is equivalent to 15,692 AFY (UWMP 2020). In 2020, RP-4 collected and treated approximately 14,178 AF of wastewater, 13,807 AF of which came from the City of Fontana (UWMP 2020). According to the City of Fontana 2013 Sewer System Master Plan, general industrial uses generate approximately 500 gallons per day (gpd) per acre. Thus, the proposed Project would generate approximately 9,540 gallons of wastewater per day (500 gpd per acre × 19.08 acres = 9,540 gpd) or 10.67 AFY.
Under existing conditions, RP-4 has an excess treatment capacity of approximately 1.4 million gallons per day. As such, implementation of the Project would utilize approximately 0.7 percent of RP-4’s daily excess treatment capacity. Thus, the wastewater treatment plant has ample capacity, and the Project would not create the need for any new or expanded wastewater facility (such as conveyance lines, treatment facilities, or lift stations) to serve the proposed Project.
Therefore, impacts related to wastewater infrastructure would be less than significant.
Impact Finding: The Project would result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the Project’s projected demand in addition to the provider’s existing commitments (DEIR Page 5.16-11 to 5.7- 12).
Facts in Support of Finding: As described previously, RP-4 is the Regional Water Recycling Plant designated to service the City of Fontana and has a treatment capacity of 14 million gallons 514
per day which is equivalent to 15,692 AFY (UWMP 2020). In 2020, RP-4 collected and treated approximately 14,178 AF of wastewater, 13,807 AF of which came from the City of Fontana (UWMP 2020). Under existing conditions, RP-4 has an excess treatment capacity of approximately 1.4 million gallons per day. Implementation of the Project would utilize approximately 0.7 percent of RP-4’s daily excess treatment capacity. Therefore, the proposed Project would not result in impacts related to wastewater treatment capacity.
Impact Finding: The Project would not require or result in the relocation or construction of new drainage facilities, or expansion of existing facilities, the construction of which could cause significant environmental effects (DEIR Page 5.16-3).
Facts in Support of Finding: Storm water will be collected through roof drains and grate inlets/catch basins and will discharge into an onsite infiltration basin. The Project would construct a underground infiltration basin designed to meet the regional LID structural treatment control best management practices (BMPs) located beneath the proposed truck trailer parking. Overflow from the underground infiltration system would be directed into a proposed 72-inch storm drain line located on Poplar Avenue. The Project would also extend the existing 72-inch storm drain line in Poplar Avenue the northerly property line.
The installation of these drainage improvements are included as part of the proposed Project and the construction impacts of these drainage improvements have been analyzed as part of overall Project construction in other sections of the EIR analyses, and would not result in any physical environmental effects beyond those previously identified. Therefore, impacts would be less than significant.
Impact Finding: The Project would not generate solid waste in excess of state or local standards, or in excess of the capacity of local infrastructure, or otherwise impair the attainment of solid waste reduction goals (DEIR Page 5.16-15 to 5.16-16).
Facts in Support of Finding: solid waste generated by the Project would be disposed of at MidValley Sanitary Landfill which is permitted to accept 7,500 tons per day of solid waste. In 2021, the average tonnage received was 2,289 tons per day (Calrecycle 2021). Thus, the facility had additional capacity of 5,211 tons per day.
Construction
The proposed Project involves demolition of existing structures therefore the Project would generate solid waste for landfill disposal from construction packaging and discarded materials.
Utilizing a construction waste factor of 20 tons per full-load truck trip provided by LSA (1,380 total truck trips/2 = 690 full-load haul trips x 20 tons), construction of the Project would generate approximately 13,800 tons of waste during construction from packaging and discarded materials (LSA 2023). However, the California Green Building Standards Code requires demolition and construction activities to recycle or reuse a minimum of 65 percent of the nonhazardous construction and demolition waste. Thus, the demolition and construction solid waste that would be disposed of at the landfill would be approximately 35 percent of the waste generated.
Therefore, demolition and construction activities would generate approximately 4,830 tons of solid waste that would be disposed of at the landfill. As shown in Section 3.0, Project Description, construction activities would occur over a 10-month period. This equates to approximately 16.1 515
tons of debris per day. The Mid-Valley Sanitary Landfill facility had an additional capacity of 5,211 tons per day (Calrecycle 2021). Therefore, the Mid-Valley Sanitary Landfill would be able to accommodate the addition of 112.7 tons of waste per week.
Operation
The Air Quality, Health Risk, Greenhouse Gas and Energy Impact Report uses a default CalEEMod operational solid waste generation factor of 0.94 tons per 1,000 square feet per year for industrial uses (LSA 2023). Based on this generation factor, operation of the Project would generate approximately 461 tons of solid waste per year, at least 75 percent of which is required by California law to be recycled, which would reduce the volume of landfilled solid waste to approximately 115 tons per year, or 2.21 tons per week. The Project’s solid waste (115 tons per year, or approximately 2.21 tons per week), would represent approximately 0.02 percent of MidValley Sanitary Landfill’s daily remaining capacity. The Mid-Valley Sanitary Landfill has a capacity until 2045. Thus, the proposed Project would be served by a landfill with sufficient permitted capacity to accommodate the Project’s solid waste disposal needs and the Project would not impair the attainment of solid waste reduction goals.
Impact Finding: The Project would comply with federal, state, and local statutes and regulations related to solid waste (DEIR Page 5.1-16).
Facts in Support of Finding: All solid waste-generating activities within the County are subject to the requirements set forth in the 2019 California Green Building Standards Code which require demolition and construction activities to recycle or reuse a minimum of 65 percent of the nonhazardous construction and demolition waste, and AB 341 which requires diversion of a minimum of 75 percent of operational solid waste. Implementation of the proposed Project would be consistent with all state regulations, as ensured through the County’s development project permitting process. Therefore, the proposed Project would comply with all solid waste statutes and regulations and impacts would not occur.
Impact Finding: The Project would not require or result in the relocation or construction of a new or expanded electric power, natural gas, or telecommunications facilities, the construction of which could cause significant environmental effects (DEIR Page 5.16-19).
Facts in Support of Finding: Electricity would be provided to the Project by Southern California Edison (SCE). Adequate commercial electricity supplies are presently available to meet the incremental increase in demand attributed to the Project. Natural gas service would be provided by Southern California Gas (SoCal Gas). Adequate commercial gas supplies are presently available to meet the incremental increase in demand attributed to the Project. Communication systems for the Project would be provided by AT&T. AT&T is a private company that provides connection to the communication system on an as needed basis.
The Project Applicant would be responsible for coordinating with each utility company to ensure utility improvements occur according to standard construction and operation procedures administered by the California Public Utilities Commission. Each of the utility systems is available along Rose Avenue, and excavation would be required to underground these lines and interconnect to the Project site. Since the footprint of proposed utility improvements is 516
encompassed by the Project site, impacts associated with such improvements have been addressed throughout this EIR and mitigated to the extent feasible as applicable. Therefore, potential impacts associated with utilities, including electricity, natural gas and communication systems would be less than significant and no mitigation is required.
J. FINDINGS FOR IMPACTS MITIGATED TO A LEVEL OF LESS THAN SIGNIFICANT The following potentially significant environmental impacts were analyzed in the DEIR and were determined to be less than significant with implementation of project design features, compliance with existing laws, codes and statutes, regulatory requirements, and implementation of identified feasible mitigation measures. The City has found in accordance with CEQA Section 21081(a)(1) and CEQA Guidelines Section 15091(a) (1) that “Changes or alterations have been required in, or incorporated into, the project which mitigate or avoid the significant effects on the environment,” which is referred to herein as “Finding 1”.
Where the potential impact can be reduced to less than significant solely through adherence to and implementation of project design features, standard conditions, and plans, programs, or policies, these measures are considered “incorporated into the project,” which mitigate or avoid the potentially significant effect, and in these situations, the Cityty also makes “Finding 1” even though no mitigation measures are required.
Biological Resources
Impact Finding: The Project would not interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors or impede the use of native wildlife nursery sites (DEIR Page 5.3-20).
The City hereby makes Finding 1 and determines that this impact is less than significant with implementation of mitigation measures.
Facts in Support of Finding: No wildlife corridors exist on the Project site; however, The Project site contains shrubs and trees that can support nesting birds and raptors protected under the Federal Migratory Bird Treaty Act and Sections 3503, 3503.5, and 3513 of the California Fish and Game Code during the nesting season. The Biological Assessment prepared for the Project site indicates that grading activities or vegetation removal during the nesting bird season of February 1 through September 15 might result in potential impacts to nesting birds. Therefore, if vegetation is required to be removed during nesting bird season, Mitigation Measure BIO-1 has been included to require a nesting bird survey to be conducted three days prior to initiating vegetation clearing. If an active nest is observed, BIO-1 requires buffering and other adaptive mitigation techniques deemed necessary by a qualified biologist to ensure that impacts to nesting birds are avoided until the nest is no longer active. With the implementation of Mitigation Measure BIO-1, impacts related to nesting birds would be reduced to a less than significant level.
Mitigation Measures:
Mitigation Measure BIO-1: Nesting Bird Survey. Vegetation removal should occur outside of the nesting bird season (generally between February 1 and September 15). If vegetation removal is required during the nesting bird season, the applicant must conduct take avoidance surveys for nesting birds prior to initiating vegetation removal/clearing. Surveys will be conducted by a qualified biologist(s) within three days of vegetation removal. If active nests are observed, a 517
qualified biologist will determine appropriate minimum disturbance buffers and other adaptive mitigation techniques (e.g., biological monitoring of active nests during construction-related activities, staggered schedules, etc.) to ensure that impacts to nesting birds are avoided until the nest is no longer active. At a minimum, construction activities will stay outside of a 200-foot buffer around the active nests. The approved buffer zone shall be marked in the field with construction fencing, within which no vegetation clearing or ground disturbance shall commence until the qualified biologist and San Bernardino County Environmental Planning and Maintenance Divison verify that the nests are no longer occupied, and the juvenile birds can survive independently from the nests. Once the young have fledged and left the nest, or the nest otherwise becomes inactive under natural conditions, normal construction activities may occur.
Cultural Resources
Impact Finding: The Project would not cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5 (DEIR Page 5.4-7).
The City hereby makes Finding 1 and determines that this impact is less than significant with implementation of mitigation measures.
Facts in Support of Finding: The records search and pedestrian field survey identified no prehistoric or historic-period archaeological resources within the Project site. Additionally, the project site does not contain historical resources.
The Project site has been previously disturbed. Therefore, there is reduced potential for the Project to impact archaeological resources. However, the field survey encountered hindrances in some locations due to the lack of access and poor visibility from the existing structures onsite. As a result, the presence of archaeological resources on the Project site could not be fully explored.
The potential for archaeological resources on the Project site is unknown to low. Mitigation Measure CUL-1 is included, which requires a qualified archeologist to attend pre-grade meetings and monitor all initial ground disturbing activities up to five feet in depth. Mitigation Measure CUL1 also includes procedures in the event a potential resource is uncovered. With the implementation of CUL-1, potential impacts related archaeological resources would be reduced to less than significant.
Mitigation Measures:
Mitigation Measure CUL-1: Archaeological Monitoring
Prior to the issuance of the first grading permit, the applicant shall provide a letter to the City Planning Division, or designee, from a qualified professional archeologist meeting the Secretary of Interior’s Professional Qualifications for Archaeology as defined at 36 CFR Part 61, Appendix A, stating that qualified archeologists have been retained and will be present at pre-grade meetings and for all initial ground disturbing activities, up to five feet in depth. Additionally, tribal monitor(s) shall be required on-site during all ground-disturbing activities.
Archaeological and Native American monitoring and excavation during construction shall be consistent with current professional standards. All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken.
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Upon discovery of any tribal cultural or archaeological resources, construction activities shall be halted within 60 feet of the find until the find can be assessed. All cultural, tribal and archaeological resources unearthed by Project construction activities shall be evaluated by the qualified archaeologist and tribal monitor. If the resources are Native American in origin, interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place. Preservation in place shall be the preferred manner of treatment. If preservation in place is not feasible, treatment may include implementation of archaeological data recovery excavation to remove the resource along the subsequent laboratory processing and analysis. All Tribal Cultural Resources shall be returned to the Tribe. Any historic archaeological material that is not Native American in origin shall be curated at a public, non-profit institution with a research interest in the materials, if such an institution agrees to accept the material. If no institution accepts the archaeological material, they shall be offered to the Tribe or a local school or historical society in the area for educational purposes.
Geology and Soils
Impact Finding: The Project would not directly or indirectly cause potential substantial adverse effects, including the risk of loss, injury, or death involving seismic-related ground failure, including liquefaction (DEIR Page 5.6-10).
The City hereby makes Finding 1 and determines that this impact is Less Than Significant with implementation of mitigation measures.
Facts in Support of Finding: According to the Geotechnical Investigation prepared for this Project, none of the borings conducted for the geotechnical investigations encountered ground water. Based on to the mapping performed by the County of San Bernardino (Land Use Plan, General Plan, and Geologic Hazard Overlays), and the subsurface conditions encountered at the boring locations, the Geotechnical Investigation concluded that the Project site is not susceptible to liquefaction.
The Geotechnical Investigation includes recommendations that would ensure that the project would be consistent with the California Code of Regulations (CBC) requirements for reducing risk related to liquefaction. Mitigation Measure GEO-1 requires that the Project’s building plans incorporate all applicable recommendations of the Geotechnical Investigation and comply with all applicable requirements of the latest adopted version of the CBC. Furthermore, the City of Fontana Building and Safety Department reviews structural plans and geotechnical data prior to issuance of a grading permit and conducts inspections during construction to ensure that all required CBC measures are incorporated. With implementation of Mitigation Measure GEO-1 and the CBC, project impacts related to liquefaction are less than significant.
Mitigation Measures:
PPP GEO-1: BCB Compliance: The project is required to comply with the California Building Standards Code as included in Chapter 5, Article III, Section 6-51 of the Fontana Municipal Code to preclude significant adverse effects associated with seismic and soils hazards. CBC related and geologist and/or civil engineer specifications for the proposed Project are required to be 519
incorporated into grading plans and building specifications as a condition of construction permit approval.
Mitigation Measure GEO-1: Geotechnical Report Compliance. The Project Applicant/developer shall incorporate the recommendations of the Geotechnical Investigation prepared by Southern California Geotechnical (Appendix G) into Project plans related to the proposed Project. The Project’s building plans shall demonstrate that they incorporate all applicable recommendations of the Geotechnical Investigation and comply with all applicable requirements of the latest adopted version of the California Building Code.
Impact Finding: The Project would not be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the Project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse (DEIR Page 5.6-12).
The City hereby makes Finding 1 and determines that this impact is Less Than Significant with implementation of mitigation measures.
Facts in Support of Finding: The Project site and adjacent parcels are relatively flat and do not contain any hills or steep slopes; therefore, no landslides on or adjacent to the project site would occur.
Based on the mapping performed by the County of San Bernardino and the subsurface conditions encountered at the boring locations, the Geotechnical Investigation concluded that the Project site is not susceptible to liquefaction. Therefore, the potential for lateral spreading on the site is considered very low. Additionally, CBC compliance requirements, as ensured through the City’s permitting process, would ensure that lateral spreading and liquefaction impacts would be less than significant.
According to the Geotechnical Investigation, an estimated shrinkage potential of four to 14 percent is expected during removal and recompaction of the artificial fill and near-surface native soils. A subsidence of 0.1 feet is estimated to occur within the Project site. However, the risk of subsidence would be minimized through adherence to CBC grading and site preparation recommendations included in the Geotechnical Investigation, such as remedial grading and recompaction of soils. Mitigation Measure GEO-1 requires that the Project follows the recommendations included in the Geotechnical Investigation. Additionally, the Fontana Building and Safety Division requires compliance with CBC as a condition of approval. With implementation of Mitigation Measure GEO-1 and compliance with the requirements of the CBC, impacts related to subsidence would be less than significant.
The Geotechnical Investigation describes that native alluvium soils encountered beneath the artificial fill at all of the boring locations generally possess medium dense to very dense relative densities, with occasional loose soils in the upper five feet. As recommended by the Geotechnical Investigation, the recommended remedial grading would remove all undocumented fill soils, any soils disturbed during site stripping and demolition activities, and a portion of the near-surface native alluvial soils and replace these soils as compacted structural fill. As required by Mitigation Measure GEO-1, the project would comply with all the applicable recommendations of the Geotechnical Investigation and comply with all applicable requirements of the latest adopted version of the CBC. Excavation and recompaction of the artificial fill soils in compliance with the CBC as required through the City’s permitting process would ensure that collapse related impacts would be less than significant.
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Mitigation Measures:
PPP GEO-1: BCB Compliance: A listed previously.
Mitigation Measure GEO-1: Geotechnical Report Compliance. As listed previously.
Impact Finding: The Project would not directly or indirectly destroy a unique paleontological resource or site or unique geologic feature (DEIR Page 5.6-14).
The City hereby makes Finding 1 and determines that this impact is Less Than Significant with implementation of mitigation measures.
Facts in Support of Finding:
The records search did not reveal any previously recorded fossil localities within the Project site.
However, the records search did reveal two previous reports conducted in the vicinity of the Project, which identify previously recorded fossil localities within two miles of the Project site. This demonstrated that terrestrial vertebrate fossils occur at shallow depths from Pleistocene older alluvial fan sediments, like those within the Project site, across the Inland Empire. Therefore, the Resources Assessment prepared for the Project concluded that the Project site has a high sensitivity for paleontological resources.
Mitigation Measure PAL-1 requires preparation of a Paleontological Resources Impact Mitigation Program (PRIMP) and that ground disturbing activities at or below 5 feet bgs be monitored to identify and recover any significant fossil remains. With implementation of Mitigation Measure PAL-1, impacts to paleontological resources would be less than significant.
Mitigation Measures:
Mitigation Measure PAL-1: Paleontological Monitoring. Prior to the issuance of grading permits, the Project Applicant/developer shall submit to and receive approval from the City, a Paleontological Resource Impact Mitigation Program (PRIMP). The PRIMP shall include the provision for a qualified professional paleontologist (or his or her trained paleontological representative) to conduct monitoring during mass grading and excavation activities in undisturbed Pleistocene alluvial fan sediment, starting at a depth of five feet.
If a fossil(s) is found at shallower depths, earth disturbance activities should be halted within a radius of 50 feet from the location of the fossil, and the approved Project paleontologist shall be consulted to determine the significance of the fossilized remains. If the fossil is deemed significant by the paleontologist, full-time monitoring should be initiated at the Project. The paleontologist shall be prepared to quickly salvage fossils as they are unearthed to avoid construction delays. The paleontologist shall also remove samples of sediments which are likely to contain the remains of small fossil invertebrates and vertebrates. The paleontologist shall have the power to temporarily halt or divert grading equipment to allow for removal of abundant or large specimens.
Collected samples of sediments shall be washed to recover small invertebrate and vertebrate fossils. Recovered specimens shall be prepared so that they can be identified and permanently preserved. Specimens shall be identified and curated and placed into an accredited repository (such as the San Bernardino County Museum) with permanent curation and retrievable storage. Prior to curation, the City of Fontana shall be consulted on the repository/museum to receive the fossil material.
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A report of findings, including an itemized inventory of recovered specimens, shall be prepared upon completion of the steps outlined above. The report shall include a discussion of the significance of all recovered specimens. The report and inventory, when submitted to the City of Fontana Planning Department, will signify completion of the program to mitigate impacts to paleontological resources.
Tribal Cultural Resources
Impact Finding: The Project would not cause a substantial adverse change in the significance of a tribal cultural resource, defined in Public Resources Code section 21074 as either a site, feature, place, cultural landscape that is geographically defined in terms of the size and scope of the landscape, sacred place, or object with cultural value to a California Native American tribe, and that is listed or eligible for listing in the California Register of Historical Resources, or in a local register of historical resources as defined in Public Resources Code section 5020.1(k) (DEIR
The City hereby makes Finding 1 and determines that this impact is Less Than Significant with implementation of mitigation measures.
Facts in Support of Finding: On June 2, 2022, a Sacred Lands File (SLF) search and a list of Native American tribes who may have knowledge of cultural resources in the Project area was requested from the Native American Heritage Commission (NAHC). On July 5, 2022, the NAHC responded with a list of Native American tribes and that the SLF search yielded negative results for known tribal cultural resources or sacred lands within a 1-mile radius of the Project site.
On August 24, 2022, the City sent letters to all of the Native American tribes that may have knowledge regarding tribal cultural resources in the Project area. The City consulted with each tribe that requested consultation. During the course of the tribal consultation process, no Native American tribe provided the City with substantial evidence indicating that tribal cultural resources, as defined in Public Resources Code Section 21074, are present on the Project Site or have been found previously on the Project Site. However, due to the Project Site’s location in an area where Native American tribes are known to have a cultural affiliation, there is the possibility that archaeological resources, including tribal cultural resources, could be encountered during ground disturbing construction activities. As such, Project-specific mitigation measure Mitigation Measure CUL-1 would be implemented to require archaeological and Native American monitoring during any ground disturbing activities on the Project site and to avoid potential impacts to tribal cultural resources that may be unearthed by Project construction activities. With implementation of Mitigation Measure CUL-1, impacts to tribal cultural resources would be less than significant.
Mitigation Measures:
Mitigation Measure CUL-1: Archaeological Monitoring. As listed previously.
Impact Finding: The Project would not cause a substantial adverse change in the significance of a tribal cultural resource, defined in Public Resources Code section 21074 as either a site, feature, place, cultural landscape that is geographically defined in terms of the size and scope of the landscape, sacred place, or object with cultural value to a California Native American tribe, and that is a resource determined by the lead agency, in its discretion and supported by substantial evidence, to be significant pursuant to criteria set forth in subdivision (c) of Public 522
Resources Code Section 5024.1, that considers the significance of the resource to a California Native American tribe (DEIR 5.15-5 to 5.15-6).
The City hereby makes Finding 1 and determines that this impact is Less Than Significant with implementation of mitigation measures.
Facts in Support of Finding: The Project site does not meet any of the criteria listed above from PRC Section 5024.1(c). As described in the previous response, there are no resources onsite that meet the criteria for the CRHR. None of the Native American tribes contacted by the City provided the City with substantial evidence indicating that tribal cultural resources, as defined in Public Resources Code Section 21074, are present on the Project Site or have been found previously on the Project Site. The Project site contains no known resources significant pursuant to criteria set forth in subdivision (c) of Public Resources Code Section 5024.1 However, Mitigation Measure CUL-1 is included to require an archaeological and Native American monitor to be present for all ground disturbing activities to monitor for any unexpected resources that may be unearthed during ground disturbing activities. With implementation of Mitigation Measure CUL1, impacts to a tribal cultural resource would be less than significant.
As discussed in Section 5.4, Cultural Resources, in the unlikely event that human remains are encountered during grading or soil disturbance activities, the California Health and Safety Code Section 7050.5 Compliance with the established regulatory framework (i.e., California Health and Safety Code Section 7050.5 and Public Resources Code Section 5097.98, included as PPP CUL1) would provide that any potential impacts to human remains and tribal cultural resources would be less than significant.
Regulatory Requirements:
PPP CUL-1: Human Remains. If human remains are found on this site, the developer/permit holder or any successor in interest shall comply with State Health and Safety Code Section 7050.5. Pursuant to State Health and Safety Code Section 7050.5, if human remains are encountered, no further disturbance shall occur until the San Bernardino County Coroner has made the necessary findings as to origin. Further, pursuant to Public Resources Code Section 5097.98 (b), remains shall be left in place and free from disturbance until a final decision as to the treatment and their disposition has been made. If the San Bernardino County Coroner determines the remains to be Native American, the Native American Heritage Commission shall be contacted by the Coroner within the period specified by law (24 hours). Subsequently, the Native American Heritage Commission shall identify the “Most Likely Descendant”. The Most Likely Descendant shall then make recommendations and engage in consultation with the property owner concerning the treatment of the remains as provided in Public Resources Code Section 5097.98.
Mitigation Measures:
Mitigation Measure CUL-1: Archeological Monitoring. As listed previously.
K. FINDINGS FOR GROWTH INDUCEMENT
Section 15126.2(d) of the State CEQA Guidelines requires the EIR to address the growth-inducing impact of the Project. DEIR Section 6 evaluates the potential for the Project to affect economic or 523
population growth, or the construction of additional housing, either directly or indirectly, in the surrounding environment.
Employment Related Growth
The proposed Project would demolish the existing residences and associated structures and develop a new industrial building totaling approximately 490,565 square feet (SF) on the 19.08- acre site. Because the future tenant of the proposed warehouse is unknown, the number of jobs generated from the operation of the Project cannot be precisely determined. However, based on SCAG’s employment generation factors of 1,195 SF of industrial space per employee, implementation of the proposed Project would create up to an additional 411 jobs in Fontana.
This employment growth would be a small percentage (2.2%), of SCAG-projected employment growth (18,400 new jobs) in the City of Fontana between 2016 and 2045. Thus, the employment growth that would occur from the Project is within the growth projections used to prepare SCAG’s 2020-2045 RTP/SCS.
In addition, the site has been designated for Residential Trucking (R-T) by the City of Fontana General Plan. The proposed Project includes a GPA to change the land use designation of the site from R-T to I-G and a SPA to change the SWIP designation from RTD to SED. Because the Project includes a change from residential use to a non-residential use, the Project is subject to SB 330. SB 330 requires in part that where a development project results in reducing the number of housing units allowed under existing City zoning, the City must identify a way in which an equivalent number of units could be accommodated in the city. As discussed in Section 5.12, Population and Housing, the Project would participate in the City’s recently adopted “No Net Loss Program” (Ordinance No. 1906) which provides that concurrent with the approval of any change in zone from residential use to a non-residential use, replacement units in the form of a density bonus will become available to project applicants subsequently seeking to develop property for residential use within the City. By utilizing the City’s “No Net Loss Program”, the Project would be in compliance with SB 330. However, the potential impacts associated with the construction of this replacement housing are too speculative at this time as it is not known when or where these replacement units would be constructed. Potential impacts associated with the construction of replacement units would be analyzed pursuant to CEQA at the time a project is proposed.
Therefore, implementation of the Project would not displace a substantial number of existing people or housing and would not necessitate the construction of replacement housing elsewhere.
Infrastructure Obstacles to Growth
The proposed Project would induce growth if it would provide public services or infrastructure with excess capacity to serve lands that would otherwise not be developable or to expand the development potential of redevelopment areas.
The proposed Project includes various roadway improvements to accommodate the safe passage and turning movements of the vehicles that would access the site. The Project does not propose roadway extensions into new undeveloped areas that would allow for additional growth and development. The Project also proposes installation of new potable water lines, sewer lines, and stormwater drainage facilities that would connect to surrounding, existing infrastructure in Poplar Avenue and Catawba Avenue in order to accommodate the demands of the Project. The Project would install onsite sewer infrastructure to connect to the existing 8-inch sewer lines in Poplar Avenue and Catawba Avenue including a sewer lift station in the northwest portion of the site to pump flows to the existing point of connection. The proposed infrastructure improvements have 524
been designed to serve only the demands of the Project. Therefore, the Project would not result in significant growth inducing impacts.
Impacts of Growth
The Project would implement economic activity that would result in an improvement in the jobshousehold ratio by providing employment within the housing-rich City of Fontana, which is a benefit of the Project. In addition, the location of the new employment opportunities would be easily accessible from the I-10 and would also accommodate employees in surrounding areas.
Further, most of the new jobs that would be created by the Project would be positions that do not require a specialized workforce, and this type of workforce exists in the City of Fontana and surrounding communities. The City of Fontana has an unemployment rate of 3.9 percent and neighboring cities have unemployment rates of 4.6 percent (City of Rialto), and 3.0 percent (City of Rancho Cucamonga) (State Employment Development Department 2023). Thus, due to existing unemployment and the availability of a workforce, it is anticipated that new jobs that would be generated from Project implementation would be filled by people within the City of Fontana and surrounding communities and would not induce an unanticipated influx of new labor into the region or the need for additional housing. Furthermore, the proposed Project would offer space for new manufacturing, research, warehouse, distribution, and light industrial companies. Thus, the Project would not result in the influx of new labor to serve the increased economic activities that would result from implementation of the Project.
L. FINDINGS FOR SIGNIFICANT AND UNAVOIDABLE IMPACTS
Public Resources Code section 21002 states that “it is the policy of the state that public agencies should not approve projects as proposed if there are feasible alternatives or feasible mitigation measures available which would substantially lessen the significant environmental effects of such projects. The Legislature further finds and declares that in the event specific economic, social, or other conditions make infeasible such project alternatives or such mitigation measures, individual projects may be approved in spite of one or more significant effects thereof.” Section 15364 of the State CEQA Guidelines defines “feasible” as “capable of being accomplished in a successful manner within a reasonable period of time, taking into account economic, environmental, legal, social, and technological factors.” The City Council hereby finds that, despite the incorporation of feasible measures outlined in the Final Subsequent EIR, the following impacts cannot be fully mitigated to a less than significant level. Despite these significant and unavoidable impacts, the City nevertheless approves the Project because of the benefits described in the Statement of Overriding Considerations included herein.
Air Quality:
Impact Finding: The Project would conflict with or obstruct implementation of an applicable air quality plan (DEIR Page 5.2-24). Impacts are significant and unavoidable.
Facts in Support of Finding: The SCAQMD’s 2022 AQMP is the applicable air quality plan for the proposed Project site. Pursuant to Consistency Criterion No. 1, the SCAQMD’s 2022 AQMP is the applicable air quality plan for the proposed Project. Projects that are consistent with the 525
regional population, housing, and employment forecasts identified by SCAG are considered to be consistent with the AQMP growth projections, since the forecast assumptions by SCAG forms the basis of the land use and transportation control portions of the AQMP. Additionally, because SCAG’s regional growth forecasts are based upon, among other things, land uses designated in general plans, a project that is consistent with the land use designated in a general plan would also be consistent with the SCAG’s regional forecast projections, and thus also with the AQMP growth projections.
The proposed Project would require a General Plan Amendment (GPA) to change the existing land use designation from Residential Trucking (R-T) to General Industrial (I-G) and a Specific Plan Amendment to change the site’s existing SWIP designation from Residential Trucking District (RTD) to Slover East Industrial District (SED). Therefore, buildout of the Project site would be more labor-intensive under the proposed Project than under the existing General Plan and SWIP designations for the site. Accordingly, the 2022 AQMP does not reflect the proposed land use designation for the Project site and buildout of the site would result in greater employment increases than assumed by SCAQ’s regional forecast projections and the AQMP growth projections. Therefore, the Project is inconsistent with the SCAQMD 2022 AQMP and would result in an impact related to Criterion No.1.
Overall, because SCAG’s regional growth forecasts and the AQMP are based upon land uses designated in general plans, which would change to be more employee-intensive, the Project would result in an exceedance of SCAG’s growth projections. Therefore, the proposed Project would result in a conflict with, or obstruct, implementation of the AQMP and impacts would be significant and unavoidable.
8. FINDINGS FOR SIGNIFICANT IRREVERSIBLE EFFECTS
Section 15126.2(c) of the CEQA Guidelines requires that an EIR discuss “any significant irreversible environmental changes which would be involved in the proposed action should it be implemented.” Generally, a project would result in significant irreversible environmental changes if one of the following scenarios is involved:
• The primary and secondary impacts would generally commit future generations to similar uses;
• The project would involve a large commitment of nonrenewable resources; • The project would involve uses in which irreversible damage could result from any potential environmental accidents associated with the project; or • The proposed irretrievable commitments of nonrenewable resources is not justified (e.g., the project involves the wasteful use of energy).
As outlined in Section 6.3 of the DEIR, the Project site would be committed to high-cube warehousing and light industrial uses once the proposed buildings are constructed. Secondary effects associated with this irreversible commitment of land resources (although such impacts are considered less than significant for purposes of CEQA) include:
• Changes in views from public vantage points associated with construction of the new building and associated improvements (see DEIR Section 5.1, Aesthetics). • Increased traffic on area roadways (see DEIR Section 5.14, Transportation). 526
• Emissions of air pollutants associated with Project construction and operation (see DEIR Section 5.2, Air Quality).
• Consumption of non-renewable energy associated with Project development and operation due to use of trucks (see DEIR Section 5.5, Energy). • Minor increased ambient noise due to operational activities and traffic associated with the Project (see DEIR Section 5.11, Noise).
• Construction of the proposed Project as described in Section 3.0, Project Description, would require use of energy produced from non-renewable resources and construction materials.
In regard to energy usage from the Project, as demonstrated in the analyses contained in DEIR Section 5.5, Energy, the Project would not involve wasteful or unjustifiable use of non-renewable resources, and conservation efforts would be enforced during Project development and operation.
The Project would incorporate energy-generating and conserving building design features, including those required by the California Building Code, California Energy Code Title 24, which specify green building standards for new developments, and City of Fontana Municipal Code Chapter 9, Section V: Industrial Commerce Centers Sustainability Standards, which requires implementation of solar rooftops and other best practices to reduce emissions and energy consumption.
9. FINDINGS REGARDING ALTERNATIVES
Key provisions of the State CEQA Guidelines relating to an alternatives analysis (Section 15126.6 et seq.) are summarized below:
• The discussion of alternatives shall focus on alternatives to the Project or its location that are capable of avoiding or substantially lessening any significant effects of the Project, even if these alternatives would impede to some degree the attainment of the Project objectives or would be more-costly.
• The “No Project” alternative shall be evaluated along with its impact. The “No Project” analysis shall discuss the existing conditions, as well as what would be reasonably expected to occur in the foreseeable future if the Project is not approved. • The range of alternatives required in an EIR is governed by a “rule of reason”; therefore, the EIR must evaluate only those alternatives necessary to permit a reasoned choice. The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the Project. • For alternative locations, only locations that would avoid or substantially lessen any of the significant effects of the Project need be considered for inclusion in the EIR. • An EIR need not consider an alternative if its effects cannot be reasonably ascertained and its implementation is remote and speculative.
Rationale for Selecting Potentially Feasible Alternatives The alternatives must include a no-project alternative and a range of reasonable alternatives to the Project if those reasonable alternatives would attain most of the Project objectives while substantially lessening the potentially significant project impacts. The range of alternatives 527
discussed in an EIR is governed by a “rule of reason,” which the State CEQA Guidelines Section 15126.6(f)(3) defines as:
“. . . set[ting] forth only those alternatives necessary to permit a reasoned choice.
The alternatives shall be limited to ones that would avoid or substantially lessen any of the significant effects of the Project. Of those alternatives, the EIR need examine in detail only the ones that the lead agency determines could feasibly attain most of the basic objectives of the Project. The range of feasible alternatives shall be selected and discussed in a manner to foster meaningful public participation and informed decision-making.”
Among the factors that may be taken into account when addressing the feasibility of alternatives (as described in the State CEQA Guidelines Section 15126.6(f)([1]) are environmental impacts, site suitability, economic viability, availability of infrastructure, general plan consistency, other plans or regulatory limitations, jurisdictional boundaries, and whether the Project proponent could reasonably acquire, control, or otherwise have access to an alternative site. An EIR need not consider an alternative if its effects could not be reasonably identified and its implementation is remote or speculative.
For purposes of the EIR analysis, the Project alternatives are evaluated to determine the extent to which they attain the basic Project objectives, while significantly lessening any significant effects of the Project.
Alternatives Considered and Rejected
Alternate Site Alternative: An alternate site for the Project was eliminated from further consideration. Based on a review of available sites for sale and the City of Fontana General Plan land use map, there are no other available, undeveloped properties of similar size (19.08 developable acres) that are zoned for industrial uses. There are no suitable sites within the control of the Project applicant. However, in the event land could be purchased of suitable size, the Project could have the same potential impacts to biological resources, cultural resources, paleontological resources, and tribal cultural resources. Additionally, the Project could have the same significant and unavoidable impact related to air quality and consistency with the SCAQMD 2022 AQMP if the potential alternative site requires a GPA or SPA to accommodate the Project; however, if a GPA or SPA is not required, impacts could be lessened to less than significant. Due to the unavailability of undeveloped properties with industrial designation of similar size as the Project site, it is likely that a GPA and/or SPA would be required, and therefore, impacts would remain similar to the proposed Project. Therefore, analysis of an alternative site for the proposed Project is neither meaningful nor necessary, because the impacts and need for mitigation resulting from the proposed Project would not be avoided or substantially lessened by its implementation.
Given these reasons, it would be infeasible to develop and operate the Project on an alternate site with fewer environmental impacts while meeting Project objectives. Therefore, the Alternative Site Alternative was rejected from further consideration. (DEIR Page 8-3).
Alternative 2: No Project/Buildout of Existing Land Use Alternative. Under the RTD zone within the SWIP, Open Space/Park is a permitted use. This alternative assumes that all 40 existing single-family residential units that currently occupy the 19.08-acre Project site would be demolished and the site would be developed as 19.08 acres of public park. This alternative would also not require a GPA and/or SPA. For the Project site to be operated as a City park, the properties, which are currently under private ownership, would need to be acquired by the City.
Overall, this alternative would also result in less than significant impacts related to cultural 528
resources, paleontological resources, and tribal cultural resources, and mitigation measures would continue be required for construction activities. This alternative would likely require some tree removal, similar to the Project; therefore, impacts to biological resources would be less than significant with implementation of mitigation measure BIO-1. Use of the site as public park would result in fewer daily passenger vehicle trips than the proposed Project (according to the ITE 11th edition trip rates, public park would result in 0.78 trips per acre, or approximately 15 daily trips for the alternative). Overall, this alternative would result in fewer impacts than the Project. However, this alternative would fail to meet most of the project objectives and would be infeasible since the property is privately owned and not owned by the City. Therefore, the Buildout of Existing Land Use Alternative was rejected from further consideration. (DEIR Page 8-3).
Alternatives Selected for Analyses
Alternative 1: No Project/No Development Alternative.
This alternative consists of the Project not being approved, and the Project site would remain in its existing condition. The No Project/No Development Alternative allows decision-makers to compare the environmental impacts of approving the proposed Project to the environmental impacts that would occur if the property were to be left in its existing conditions for the foreseeable future. Under the existing conditions, the Project site is undeveloped and vacant. The Project site would continue to be disked for weed abatement. See Section 4, Environmental Setting, for additional details and figures regarding the existing conditions at the Project siteThus, this alternative is intended to meet the requirements of CEQA Guidelines Section 15126.6(e) for evaluation of a no Project alternative. (DEIR Page 8-4).
Ability to Reduce Impacts: The No Project/No Development Alternative would result in continuation of the existing uses within the Project site, and the proposed development would not occur. As a result, this alternative would avoid the need for mitigation measures that are identified in Chapter 5.0 of this DEIR, which include measures related to biological resources, cultural resources, paleontological resources, and tribal cultural resources. This alternative would result in lessened impacts to all 16 of the 16 environmental topics analyzed in the DEIR (DEIR Table 8- 3). However, the environmental benefits of the proposed Project would also not be realized including providing jobs onsite that would result in a better jobs-housing balance in Fontana, which is currently considered housing rich. (DEIR Page 8-4 to 8-8).
Ability to Achieve Project Objectives: As shown in DEIR Table 8-4, the No Project/No Development Alternative would not meet any of the Project objectives. (DEIR Page 8-8).
Finding: The City of Fontana finds that the No Project/No Build Alternative is infeasible based on several economic and social factors that do not meet Project Objectives. The No Project/No Development Alternative would not redevelop the Project site to construct a new industrial building that would support warehouse and office uses, would not provide new employment opportunities to the community of Fontana, and would not reduce the need for members of the local workforce to commute outside the Project vicinity to work. The No Project/No Build Alternative fails to meet any of the Project objectives and is rejected on that basis. Thus, the City Council rejects the No Project/No Build Alternative on the following grounds, each of which provide a separate and independent basis for the rejection: (1) the No Project/No Build Alternative would not achieve any 529
of the economic goals of the City; and (2) the No Project/No Build Alternative fails to meet any of the Project objectives.
Alternative 2: Reduced Project
Under this alternative, development of the Project would result in a 367,924 SF speculative warehouse building. Development under the Reduced Project Alternative would reduce Project square footage by approximately 25 percent, 122,641 fewer square feet. As with the Project, the entire 19.08-acre developable portion of the site would be developed, but the reduced square footage would allow for increased setbacks and truck parking. Areas planned for physical impact on and offsite would be identical to those required for development of the proposed Project.
Infrastructure and circulation improvements would still be required to adequately serve the development; however, stormwater facilities would be sized smaller due to the decrease in impervious areas. Like the proposed Project, this alternative would require a General Plan Amendment to change the land use designation from Residential Trucking (R-T) to General Industrial (I-G) and a Specific Plan Amendment (SPA) to change the Southwest Industrial Park Specific Plan (SWIP) designation from Residential Trucking District (RTD) to Slover East Industrial District (SED). (DEIR Page 8-8).
Ability to Reduce Impacts: All mitigation measures would still be applicable to this alternative; however, this alternative would result in lessened impacts to 6 of the 16 environmental topics analyzed in this DEIR (see Table 8-2). This alternative would not avoid the Project’s significant and unavoidable impact related to consistency with the SCAQMD AQMP. (DEIR Page 8-8 to 8- 12).
Ability to Achieve Project Objectives: As shown in DEIR Table 8-3, the Reduced Project Alternative would partially meet the majority of Project objectives, but not to the same extent as the proposed Project. This alternative would develop a property, surrounded by existing industrial uses with nearby access to the freeway, by adding employment-generating uses and would attract new businesses and employment. Furthermore, the Reduced Alternative would reduce the need for the local workforce to commute outside of the Project vicinity. This alternative would develop a speculative warehouse building within close proximity to I-10. However, this alternative would not meet the main Project objectives to the extent that the proposed Project would (DEIR Page 8-12).
Finding: The City of Fontana finds that the Reduced Development Footprint Alternative is infeasible based on several economic and social factors. A key consideration for the City is to increase utilization of underutilized parcels and provide high quality employment opportunities.
The Reduced Development Footprint Alternative would result in the construction of approximately 25 percent feet less of warehouse space than the Project. The volume of impacts would be less with the Reduced Intensity Alternative in comparison to the Project. However, all mitigation measures would still be required to reduce potentially significant impacts to less than significant levels. This Alterative would reduce potential impacts related to 6 of the 16 environmental topics analyzed in this DEIR. However, similar to the Project, the impacts would remain less than significant. This alternative would meet most of the Project objectives, but not to the same extent as the proposed Project. Thus, the City Council rejects the Reduced Development Footprint Alternative on the following grounds, each of which provide a separate and independent basis for the rejection: (1) the Reduced Development Footprint Alternative reduces the utilization of the 530
Project site by reducing the amount of development without eliminating the need for a similar level of mitigation and; (2) the Reduced Development Footprint Alternative fails to meet the Project objectives to the fullest extent.
Environmentally Superior Alternative
Section 15126.6(e)(2) of the CEQA Guidelines indicates that an analysis of alternatives to a proposed project shall identify an environmentally superior alternative among the alternatives evaluated in an EIR. The CEQA Guidelines also state that should it be determined that the No Project Alternative is the environmentally superior alternative, the EIR shall identify another environmentally superior alternative among the remaining alternatives.
Therefore, pursuant to CEQA, because the No Project/No Development Alternative has been identified as the Environmentally Superior Alternative, the Environmentally Superior Alternative among the other alternatives would be Alternative 2: Reduced Project Alternative, which would involve developing the Project site with a 367,924 SF industrial warehouse building.
Alternative 2: Reduced Project Alternative would result in lessened impacts to 6 of the 16 environmental topics analyzed in this EIR. However, this alternative would be required to implement applicable mitigation measures regarding biological resources, cultural resources, geology and soils, and tribal cultural resources. Moreover, the Reduced Project Alternative would not meet the Project objectives to the same extent as the Project.
CEQA does not require the Lead Agency (the City of Fontana) to choose the environmentally superior alternative. Instead, CEQA requires the City to consider environmentally superior alternatives, weigh those considerations against the environmental impacts of the Project, and make findings that the benefits of those considerations outweigh the harm.
10. STATEMENT OF OVERRIDING CONSIDERATIONS
A. Introduction
The City of Fontana is the Lead Agency under CEQA for preparation, review and certification of the EIR for the Poplar South Distribution Center Project. As the Lead Agency, the City is also responsible for determining the potential environmental impacts of the proposed action and which of those impacts are significant, and which can be mitigated through imposition of mitigation measures to avoid or minimize those impacts to a level of less than significant. CEQA then requires the Lead Agency to balance the benefits of a proposed action against its significant unavoidable adverse environmental impacts in determining whether or not to approve the proposed Project. In making this determination the City is guided by CEQA Guidelines Section 15093, Statement of Overriding Considerations, which states:
(a) CEQA requires the decision-making agency to balance, as applicable, the economic, legal, social, technological, or other benefits of a proposed project against its unavoidable environmental risks when determining whether to approve the project. If the specific economic, legal, social, technological, or other benefits of a proposal (sic) project outweigh the unavoidable adverse environmental effects, the adverse environmental effects may be considered “acceptable.”
(b) When the lead agency approves a project which will result in the occurrence of significant effects which are identified in the final EIR but are not avoided or substantially lessened, the agency shall state in writing the specific reasons to support its action based on the final EIR and/or 531
other information in the record. The statement of overriding considerations shall be supported by substantial evidence in the record.
(c) If an agency makes a statement of overriding considerations, the statement should be included in the record of the project approval and should be mentioned in the notice of determination. This statement does not substitute for, and shall be in addition to, findings required pursuant to Section 15091.
In addition, Public Resources Code Section 21081(b) requires that where a public agency finds that specific economic, legal, social, technological, or other considerations, including considerations for the provision of employment opportunities for highly trained workers, make infeasible the mitigation measures or alternatives identified in an EIR and thereby leave significant unavoidable effects, the public agency must also find that overriding economic, legal, social, technological, or other benefits of the project outweigh the significant effects of the project.
Pursuant to Public Resources Code Section 21081(b) and the State CEQA Guidelines Section 15093, the City has balanced the benefits of the proposed Project against the unavoidable adverse impacts associated with the Project and has adopted all feasible mitigation measures with respect to these impacts. The City also has examined alternatives to the proposed Project, none of which both meets the Project objectives to the same extent as the Project and is environmentally preferable to the proposed Project for the reasons discussed in the Findings and Facts in Support of Findings.
The City of Fontana, as the Lead Agency for this Project, and having reviewed the EIR for the Poplar South Distribution Center Project, and reviewed all written materials within the City’s public record and heard all oral testimony presented at public hearings, adopts this Statement of Overriding Considerations, which has balanced the benefits of the Project against its significant unavoidable adverse environmental impacts in reaching its decision to approve the Project.
B. Overriding Considerations
The City, after balancing the specific economic, legal, social, technological, and other benefits of the Project, has determined that the unavoidable adverse transportation impacts identified above may be considered acceptable due to the following specific considerations which outweigh the unavoidable, adverse environmental impacts of the Project, each of which standing alone is sufficient to support approval of the Project, in accordance with CEQA Section 21081(b) and CEQA Guideline Section 15093. The specific economic, legal, social, technological, or other benefits of the Project are as follows:
• The Project’s proposed General Plan Amendment and Specific Plan Amendment would make efficient use of the property by adding to its potential for employmentgenerating uses as well as make the property more consistent and compatible with its surrounding industrial uses that were recently built or recently approved for construction in south Fontana.
• The Project will provide a high-quality industrial building near available infrastructure, including roads and utilities, that will help meet demand for logistics business in the City and surrounding region.
• The Project encourages economic growth and diversity within the City by providing a flexible industrial facility for a business withing to invest in the City. • The Project will provide a number of temporary construction jobs and approximately 411 permanent jobs once constructed which will positively benefit the jobs-household ratio by providing employment within the housing-rich City of Fontana. 532
• The Project will provide a variety of employment opportunities in the City of Fontana thereby reducing the need for members of the local workforce to commute outside the area for employment.
• The Project will stimulate regional economic growth while also incorporating a number of plans, programs, policies and mitigation measures that promote environmental sustainability and the preservation of natural resources.
11. ADOPTION OF A MITIGATION MONITORING AND REPORTING PROGRAM The City has prepared a Mitigation Monitoring and Reporting Program (“MMRP”) pursuant to Section 21081.6 of CEQA, and that MMRP is included in the Final EIR. The MMRP is designed to detail compliance with changes in the Project and Mitigation Measures imposed on the Project throughout Project implementation. The measures in the MMRP are fully enforceable through permit conditions, agreements, or other measures.
Pursuant to CEQA Section 21081.6, the City Council hereby adopts the MMRP attached to Final EIR. Implementation of the Mitigation Measures contained in the MMRP is hereby made a condition of approval of the Project. In the event of any inconsistencies between the Mitigation Measures set forth herein and the MMRP, the MMRP shall control.
12. CONCLUSION
The City Council finds that it has been presented with the EIR, which it has reviewed and considered, and further finds that the EIR is an accurate and objective statement that has been completed in full compliance with CEQA, the State CEQA Guidelines and that the EIR reflects the independent judgment and analysis of the City. The City Council declares that no evidence of new significant impacts as defined by the State CEQA Guidelines Section 15088.5 has been received by the City after circulation of the Draft EIR which would require recirculation. Therefore, the City Council hereby certifies the EIR based on the entirety of the record of proceedings, including but not limited to the findings and conclusions reached herein. 533
EXHIBIT B
TABLE 4-1: MITIGATION MONITORING AND REPORTING PROGRAM
SOUTH POPLAR DISTRIBUTION CENTER PROJECT EIR
534
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
AIR QUALITY
PPP AQ-1: Rule 403. The Project is required to comply with the provisions of South Coast Air Quality Management District (SCAQMD) Rule 403, which includes the following:
- All clearing, grading, earth-moving, or excavation activities shall cease when winds exceed 25 mph per SCAQMD guidelines in order to limit fugitive dust emissions.
- The contractor shall ensure that all disturbed unpaved roads and disturbed areas within the project are watered, with complete coverage of disturbed areas, at least 3 times daily during dry weather; preferably in the midmorning, afternoon, and after work is done for the day. - The contractor shall ensure that traffic speeds on unpaved roads and project site areas are reduced to 15 miles per hour or less.
In construction plans and
specifications. Prior to
grading and building
permits.
City of Fontana Building &
Safety Department
PPP AQ-2: Rule 1113. The Project is required to comply with the provisions of South Coast Air Quality Management District Rule (SCAQMD) Rule 1113.
Only “Low-Volatile Organic Compounds” paints (no more than 50 gram/liter of VOC) and/or High Pressure Low Volume (HPLV) applications shall be used.
In construction plans and
specifications. Prior to
building permits.
City of Fontana Building &
Safety Department
PPP AQ-3: Rule 402. The Project is required to comply with the provisions of South Coast Air Quality Management District (SCAQMD) Rule 402. The Project shall not discharge from any source whatsoever such quantities of air contaminants or other material which cause injury, detriment, nuisance, or annoyance to any considerable number of persons or to the public, or which endanger the comfort, repose, health or safety of any such persons or the public, or which cause, or have a natural tendency to cause, injury or damage to business or property.
In construction plans and
specifications. During
Project operation. Prior
to grading and building
permits.
City of Fontana Building &
Safety Department
PPP AQ-4: Rule 1470 – Requirements for Stationary Diesel-Fueled Internal Combustion and Other Compression Ignition Engines. The Project is required to obtain a permit from SCAQMD for the proposed diesel fire pump and would be required to comply with Rule 1470, regulating the use of dieselfueled internal combustion engines.
In construction plans and
specifications. During
Project operation. Prior
to grading and building
permits.
City of Fontana Building &
Safety Department and
SCAQMD
BIOLOGICAL RESOURCES
535
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
Mitigation Measure BIO-1: Nesting Bird Survey. Vegetation removal should occur outside of the nesting bird season (generally between February 1 and August 31). If vegetation removal is required during the nesting bird season, the applicant must conduct take avoidance surveys for nesting birds prior to initiating vegetation removal/clearing. Surveys will be conducted by a qualified biologist(s) within three days of vegetation removal. If active nests are observed, a qualified biologist will determine appropriate minimum disturbance buffers and other adaptive mitigation techniques (e.g., biological monitoring of active nests during construction-related activities, staggered schedules, etc.) to ensure that impacts to nesting birds are avoided until the nest is no longer active. At a minimum, construction activities will stay outside of a 200-foot buffer around the active nests. The approved buffer zone shall be marked in the field with construction fencing, within which no vegetation clearing or ground disturbance shall commence until the qualified biologist and San Bernardino County Environmental Planning & Maintenance Division verify that the nests are no longer occupied, and the juvenile birds can survive independently from the nests. Once the young have fledged and left the nest, or the nest otherwise becomes inactive under natural conditions, normal construction activities may occur.
Submittal of pre-activity
nesting bird field survey
results report (during Feb
1 – Aug 31). Within 3
days of vegetation
removal.
City of Fontana Planning
Department, qualified
biologist and San
Bernardino County
Environmental Planning &
Maintenance Division
PPP BIO-1: California Fish and Game Code, Sections 3503.5, 3511, 3515.
Section 3503.5 of the California Fish and Game Code states that it is “unlawful to take, possess, or destroy any birds in the order Falconiformes or Strigiformes (birds of prey) or to take, possess, or destroy the nest or eggs of any such bird except as otherwise provided by this code or any regulation adopted pursuant thereto.” Activities that result in the abandonment of an active bird of prey nest may also be considered in violation of this code. In addition, California Fish and Game Code, Section 3511 prohibits the taking of any bird listed as fully protected, and California Fish and Game Code, Section 3515 states that is it unlawful to take any non-game migratory bird protected under the MBTA.
In construction plans and
specifications. During
Project construction
activities.
City of Fontana Planning
Department and qualified
biologist
CULTURAL RESOURCES
Mitigation Measure CUL-1: Archaeological Monitoring. Prior to the issuance of the first grading permit, the applicant shall provide a letter to the City Planning Division, or designee, from a qualified professional archeologist meeting the Secretary of Interior’s Professional Qualifications for Retain archaeological
monitor and submit letter.
Prior to the issuance of
the first grading permit.
City of Fontana Planning
Department.
536
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
Archaeology as defined at 36 CFR Part 61, Appendix A, stating that qualified archeologists have been retained and will be present at pre-grade meetings and for all initial ground disturbing activities, up to five feet in depth. Additionally, tribal monitor(s) shall be required on-site during all ground-disturbing activities.
Archaeological and Native American monitoring and excavation during construction shall be consistent with current professional standards. All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken.
Upon discovery of any tribal cultural or archaeological resources, construction activities shall be halted within 60 feet of the find until the find can be assessed. All cultural, tribal and archaeological resources unearthed by Project construction activities shall be evaluated by the qualified archaeologist and tribal monitor. If the resources are Native American in origin, interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place.
Preservation in place shall be the preferred manner of treatment. If preservation in place is not feasible, treatment may include implementation of archaeological data recovery excavation to remove the resource along the subsequent laboratory processing and analysis. All Tribal Cultural Resources shall be returned to the Tribe. Any historic archaeological material that is not Native American in origin shall be curated at a public, non-profit institution with a research interest in the materials, if such an institution agrees to accept the material. If no institution accepts the archaeological material, they shall be offered to the Tribe or a local school or historical society in the area for educational purposes.
PPP CUL-1: Human Remains. If human remains are found on this site, the developer/permit holder or any successor in interest shall comply with State Health and Safety Code Section 7050.5. Pursuant to State Health and Safety Code Section 7050.5, if human remains are encountered, no further disturbance shall occur until the San Bernardino County Coroner has made In construction plans and
specifications. During
construction activities.
City of Fontana Planning
Department
537
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
the necessary findings as to origin. Further, pursuant to Public Resources Code Section 5097.98 (b), remains shall be left in place and free from disturbance until a final decision as to the treatment and their disposition has been made.
If the San Bernardino County Coroner determines the remains to be Native American, the Native American Heritage Commission shall be contacted by the Coroner within the period specified by law (24 hours). Subsequently, the Native American Heritage Commission shall identify the “Most Likely Descendant”. The Most Likely Descendant shall then make recommendations and engage in consultation with the property owner concerning the treatment of the remains as provided in Public Resources Code Section 5097.98.
ENERGY
PPP E-1: CalGreen Compliance: The Project is required to comply with the CalGreen Building Code to ensure efficient use of energy. CalGreen specifications are required to be incorporated into building plans as a condition of building permit approval
In construction plans and
specifications. Prior to
grading and building
permits.
City of Fontana Building &
Safety Department
GEOLOGY AND SOILS
PPP GEO-1: CBC Compliance. The project is required to comply with the California Building Standards Code as included in Chapter 5, Article III, Section 6-51 of the Fontana Municipal Code to preclude significant adverse effects associated with seismic and soils hazards. CBC related and geologist and/or civil engineer specifications for the proposed Project are required to be incorporated into grading plans and building specifications as a condition of construction permit approval.
In construction plans and
specifications. Prior to
grading and building
permits.
City of Fontana Building &
Safety Department
MM PAL-1: Paleontological Monitoring. Prior to the issuance of grading permits, the Project Applicant/developer shall submit to and receive approval from the City, a Paleontological Resource Impact Mitigation Program (PRIMP). The PRIMP shall include the provision for a qualified professional paleontologist (or his or her trained paleontological representative) to conduct monitoring during mass grading and excavation activities in undisturbed Pleistocene alluvial fan sediment, starting at a depth of five feet.
If a fossil(s) is found at shallower depths, earth disturbance activities should be halted within a radius of 50 feet from the location of the fossil, and the Retain Paleontologist and
submit PRIMP to city.
Prior to grading and
building permits.
City of Fontana Planning
Department
538
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
approved Project paleontologist shall be consulted to determine the significance of the fossilized remains. If the fossil is deemed significant by the paleontologist, full-time monitoring should be initiated at the Project. The paleontologist shall be prepared to quickly salvage fossils as they are unearthed to avoid construction delays. The paleontologist shall also remove samples of sediments which are likely to contain the remains of small fossil invertebrates and vertebrates. The paleontologist shall have the power to temporarily halt or divert grading equipment to allow for removal of abundant or large specimens.
Collected samples of sediments shall be washed to recover small invertebrate and vertebrate fossils. Recovered specimens shall be prepared so that they can be identified and permanently preserved. Specimens shall be identified and curated and placed into an accredited repository (such as the San Bernardino County Museum) with permanent curation and retrievable storage. Prior to curation, the City of Fontana shall be consulted on the repository/museum to receive the fossil material.
A report of findings, including an itemized inventory of recovered specimens, shall be prepared upon completion of the steps outlined above. The report shall include a discussion of the significance of all recovered specimens. The report and inventory, when submitted to the City of Fontana Planning Department, will signify completion of the program to mitigate impacts to paleontological resources.
GREENHOUSE GAS EMISSIONS
PPP GHG-1: City of Fontana’s Industrial Commerce Centers Sustainability Standards. Prior to issuance of a business license, the City of Fontana Planning Director shall ensure that the proposed Project implements the requirements set forth in the City of Fontana’s Industrial Commerce Centers Sustainability Standards that are applicable to the Project.
Prior to issuance of
business license.
City of Fontana Planning
Department
HAZARDS AND HAZARDOUS MATERIALS
539
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
PPP HAZ-1: SCAQMD Rule 1403. Prior to issuance of a Demolition Permit, the Project Applicant/Developer shall submit verification to the County Building Division that an asbestos survey has been conducted at all existing buildings located on the Project site. If asbestos is found, the Project Applicant/Developer shall follow all procedural requirements and regulations of SCAQMD 1403. Rule 1403 regulations require the following actions be taken: notification of SCAQMD prior to construction activity, asbestos removal in accordance with prescribed procedures, placement of collected asbestos in leak-tight containers or wrapping, and proper disposal.
Prior to issuance of a
demolition permit.
City of Fontana Planning
Department and County
Building Division
PPP HAZ-2: Transportation of Hazardous Waste. Hazardous materials and hazardous wastes will be transported to and/or from the project developed as required by the County of San Bernardino’s Hazardous Materials Division in compliance with any applicable state and federal requirements, including the U.S. Department of Transportation regulations listed in the Code of Federal Regulations (CFR) (Title 49, Hazardous Materials Transportation Act); California Department of Transportation standards; and the California Occupational Safety and Health Administration standards.
In construction plans and
specifications. During
construction.
City of Fontana Planning
Department
PPP HAZ-3: Resource Conservation and Recovery Act. Hazardous waste generation, transportation, treatment, storage, and disposal will be conducted in compliance with the Subtitle C of the Resource Conservation and Recovery Act (RCRA) (Code of Federal Regulations, Title 40, Part 263), including the management of nonhazardous solid wastes and underground tanks storing petroleum and other hazardous substances. The San Bernardino County Fire Department serves as the designated Certified Unified Program Agency (CUPA) which implements state and federal regulations for the following programs: (1) Hazardous Materials Release Response Plans and Inventory Program, (2) California Accidental Release Prevention (CalARP) Program, (3) Aboveground Petroleum Storage Act Program, and (4) UST Program (5) Hazardous Waste Generator and Onsite Hazardous Waste Treatment Programs (6) Hazardous Materials Management Plan and Hazardous Material Inventory Statement Program.
In construction plans and
specifications. During
construction.
City of Fontana Planning
Department
HYDROLOGY AND WATER QUALITY
PPP HYD-1: Comply with NPDES. Since this Project is one acre or more, the permit holder shall comply with all of the applicable requirements of the National Pollutant Discharge Elimination System (NPDES) and shall conform In construction plans and
specifications. Prior to
City of Fontana Planning
Department
540
Plan, Policy, Program / Mitigation Measure Timing
Responsible for
Ensuring Compliance /
Verification
Date Completed and
Initials
to NPDES Best Management Practices for Stormwater Pollution Prevention Plans during the life of this permit.
grading and building
permits.
PPP HYD-2: NPDES/SWPPP. Prior to issuance of any grading or construction permits - whichever comes first - the applicant shall provide the Building and Safety Department evidence of submitting a Notice of Intent (NOI), develop and implement a Stormwater Pollution Prevention Plan (SWPPP) and a monitoring program and reporting plan for the construction site.
In construction plans and
specifications. Prior to
grading and building
permits.
City of Fontana Planning
Department
PPP HYD-3: WQMP. Pursuant to City Municipal Code Section 30-526, Infrastructure, the Project Applicant shall prepare a Water Quality Management Plan (WQMP) that is consistent with the San Bernardino County Flood Control District Standards and follows the WQMP guidance.
In construction plans and
specifications. Prior to
grading and building
permits.
City of Fontana Planning
Department
NOISE
PPP NOI-1: Construction Noise. As required by Fontana Municipal Code Section 18-63(b)(7), construction activities shall only take place between the hours of 7:00 a.m. and 6:00 p.m. on weekdays and 8:00 a.m. and 5:00 p.m. on Saturdays. Construction activities conducted outside of these hours would require previous approval from the City of Fontana.
In construction plans and
specifications. During
construction activities.
City of Fontana Planning
Department
PUBLIC SERVICES
PPP PS-1: School Impact Fees. Prior to the issuance of either a certificate of occupancy or prior to building permit final inspection, the applicant shall provide payment of the appropriate fees set forth by the Fontana Unified School District related to the funding of school facilities pursuant to Government Code Section 65995 et seq.
Prior to the issuance of
certificate of occupancy
or prior to building
permit final inspection
City of Fontana Planning
Department
541
ATTACHMENT NO. 13
RESOLUTION NO. 2023-____
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA
APPROVING, PURSUANT TO THE CERTIFIED ENVIRONMENTAL
IMPACT REPORT FOR THE POPLAR SOUTH DISTRIBUTION CENTER
(STATE CLEARINGHOUSE NO. 2022090611), GENERAL PLAN
AMENDMENT NO. 22-007 (PART NO. 3 OF GENERAL PLAN AMENDMENT CYCLE NO. 4 OF 2023) AMENDING THE GENERAL PLAN LAND USE DESIGNATION ON APPROXIMATELY 18.8 ADJUSTED GROSS ACRES
(APNs: 0237-171-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, - 14, -15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, - 09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 33) FROM
RESIDENTIAL TRUCKING (R-T) TO GENERAL INDUSTRIAL (I-G), APPROVING TENTATIVE PARCEL MAP NO. 22-016 (TPM NO.20638 ) TO
CONSOLIDATE FORTY ONE PARCELS LOCATED AT THE
INTERSECTION OF POPLAR AVENUE AND ROSE INTO ONE PARCEL
AND APPROVING DESIGN REVIEW NO. 22-040 FOR A SITE AND
ARCHITECTURAL REVIEW OF AN INDUSTRIAL COMMERCE BUILDING TOTALING APPROXIMATELY 490,565 SQUARE FEET WITH
ASSOCIATED ON-SITE AND OFF-SITE IMPROVEMENTS.
WHEREAS, assessor parcel numbers 0237-171-01, -02, -03, -04, -05, -06, -07, -08, - 09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 33) were annexed from San Bernardino County and incorporated into the City of Fontana on September 19, 2006; and
WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan was adopted by the City Council and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and WHEREAS, the City of Fontana (the “City”) received an application on July 07, 2022 from Seefried Industrial Properties, Inc. (“Applicant”) for a General Plan Amendment (GPA No. 22-007) to amend the General Plan land use designation for 18.8 acres of land located along Rose Avenue to the east side of Poplar Avenue and west of Catawba Avenue from Residential Trucking (R-T) to General Industrial (I-G) and to modify Exhibit
15.8 (Land Use Map) of the General Plan to reflect the same; Specific Plan Amendment (SPA No. 22-003) to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use for the project site from Residential Trucking District (RTD) to Slover East Industrial District (SED); Development Agreement (AGR No. 22-003) to include an agreement for the payment of a public benefit fee; Tentative Parcel Map (TPM No. 22-016) (TPM No. 20638) for the consolidation of 41 parcels into one parcel; and Design Review (DRP No. 22-040) for the development of an industrial commerce building totaling approximately 490,565 square feet along with site improvements for APNs 0237-171-01, -02, -03, -04, - 05, -06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 542
Resolution No. 2023-_____
33). The amendments together are known as Master Case Number 22-079 (“MCN 22- 079”); and
WHEREAS, the commerce building 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 Regional House Needs Assessment (RHNA) numbers; 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 (FMC) 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 1,280 units. These 38 units will be added to the Unit Bank increasing the number of units in the Unit Bank to 1,318 which is less than the 2,200 units authorized by the 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 served basis, density bonuses of up to 20% on other parcels until these 38 residential units are reclaimed within future planned residential projects; and
WHEREAS, the City has prepared a Final EIR, consisting of the comments received during the 45-day public review and comment period on the Draft EIR, written responses to those comments, revisions to the Draft EIR, and an errata making minor, nonsubstantive changes to the Final EIR. For the purposes of this Resolution, the “EIR” shall refer to the Draft EIR, as revised by the Final EIR, together with the other sections of the Final EIR; and
WHEREAS, based on the information contained in Environmental Impact Report (State Clearing House No. 2022090611) prepared for the project which has been circulated for the proposed project and has been submitted with the inclusion of a Statement of Overriding Consideration and a Mitigation Monitoring Program with a recommendation for certification by the City Council; and
WHEREAS, the Conditions of Approval have been prepared and are attached hereto as Exhibit “B and C” for TPM No. 22-016 and DRP No. 22-040, respectively; and WHEREAS, the amendments of MCN 22-079 are consistent with the goals and policies of the General Plan; and
WHEREAS, all the notices required by statute and the Fontana Municipal Code have been given as required; and
WHEREAS, the owners of property within 660 feet of the project site were notified via public hearing notice mailer prior to the Public Hearing for Planning Commission and City Council; and a notice of the public hearing was published in the Fontana Herald newspaper on October 7, 2023, for Planning Commission and November 3, 2023, for City Council at City Hall and at the project site; and
543
Resolution No. 2023-_____
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) received public testimony and evidence presented by the Applicant, City staff, and other interested parties, at the Public Hearing held on Poplar South Distribution Center (State Clearinghouse No. 2022090611), MCN 22-079; and WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing on MCN No. 22-079 and received evidence and heard public testimony from all interested parties and recommended that the City Council adopt the Final Environmental Impact Report (State Clearinghouse No. 2022090611), approved the MMRP, and approve the amendments by Resolution No. 2023-037 with a 3-0 vote; and
WHEREAS, on November 14, 2023, the City Council conducted a noticed public hearing on General Plan Amendment No. 22-007, Specific Plan Amendment No. 22-003, Tentative Tract Map No. 20638 (TTM No. 22-016) and Design Review No. 22-040 received testimony from any and all parties, including the staff report and attached supporting documents from the Planning Commission public hearing on October 17, 2023, as well as testimony from the project applicant and others; and WHEREAS, the Fontana City Council (“City Council”) carefully considered all information, evidence and testimony pertaining to the proposed project presented at its public hearing on November 14, 2023, and
WHEREAS, the City wishes to protect and preserve the quality of the life throughout the City, through effective land use and planning; and
WHEREAS, pursuant to Government Code Section 65358 on November 14, 2023 the City Council adopted one General Plan Amendment in the following five parts: Part No. 1 – GPA No. 22-001, Merrill Land Use Re designation; Part No. 2 – GPA No. 22-005, Banana North Apartments; Part No. 3–GPA No. 22-007, Poplar South Distribution Center Project Part No. 4– GPA No. 23-003, Arrow and Tokay Land Use Re designation; and Part No. 5 – GPA No. 23-004, Citrus/Oleander Industrial Commerce Center; and WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.
NOW, THEREFORE, the City Council RESOLVES as follows:
SECTION 1. Recitals. The recitals are true, correct and incorporated herein by this reference.
SECTION 2. CEQA. 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 Poplar South Distribution Center Environmental Impact Report (“EIR”) (State Clearinghouse No. 2022090611) was prepared for 544
Resolution No. 2023-_____
development, including the General Plan Amendment, Specific Plan Amendment, Tentative Parcel Map and Design Review. The City Council has certified the Poplar South Distribution Center 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. General Plan Amendment Findings. The City Council hereby makes the following findings for General Plan Amendment No. 22-007 in accordance with Section 30-31 “Purpose” of the Fontana Zoning and Development Code:
Finding: The purpose and intent is to keep an updated General Plan to reflect the current desires and needs of the citizens for the longterm growth of the City.
Findings of Fact: Changing the General Plan Land Use Designation of the site from Residential Trucking (R‐T) to General Industrial (I‐G) would allow for the construction of an industrial commerce center building totaling approximately 490,565 square feet. This development will assist with growing the industrial commerce center demand in the City and the surrounding area. Additionally, properties to the south and west also have a General Plan designation of General Industrial (I-G).
SECTION 4. Tentative Parcel Map Findings. The City of Fontana’s City Council hereby makes the following findings for Tentative Parcel Map No. 22-016 (TPM No. 20638), pursuant to Section 30-284 of the Fontana Zoning and Development code, and in accordance with Section No. 26-218(d) “Processing of application,” of the Fontana Municipal Code:
Finding No. 1: That the proposed map is consistent with the city's general plan and any applicable specific plan.
Findings of Fact: Tentative Parcel Map No. 22-016 (TPM No. 20638) is consistent with the General Plan Land Use Designation for the project site, which is General Industrial (I-G). The lot size with the consolidation will meet the lot standards of the Specific Plan. The tentative parcel map consolidates forty-one (41) existing parcels (APNs: 0237-171-01 through -19, 0237-172-01 through -12, -19, -22, -23, -26, -27, -28, - 30 through -33) into one parcel for the construction of a concrete tiltup industrial commerce center building totaling approximately 490,565 square feet, which is within the land use permitted in the General Plan. The project incorporates the project site into the Southwest Industrial Park Specific Plan, Slover East Industrial District. Rose Avenue is vacated and the site designation will reflect Slover East Industrial District (SED) between Poplar Avenue and Catawba Avenue. This section of Rose Avenue is listed as a local street on Hierarchy of the Streets Plan Chapter of the General Plan 545
Resolution No. 2023-_____
and Transportation and Circulation Chapter of SWIP. The vacation of Rose Avenue will not conflict with the General Plan or SWIP.
Finding No. 2: That the design or improvements of the proposed tentative parcel map are consistent with the General Plan and any applicable Specific Plan.
Findings of Fact: The site design for Tentative Parcel Map No. 20-016 is consistent with the General Plan. The lot size and street configuration conform to the requirements of the Land Use, Zoning, and Urban Design and Community Mobility and Circulation Elements of the City of Fontana General Plan, Subdivisions (Chapter No. 26) Chapter of the City of Fontana Municipal Code and the General Industrial development standards. The project includes all on-site and off-site improvements to meet all the General Plan goals and objectives; as well as, all of the zoning requirements of the Southwest Industrial Specific Plan, Slover East Industrial District zone. Improvements consist of public sewer, public storm drain, streets, gutter, sidewalks, drainage, and grading to provide a safe and well-designed project for the area.
Finding No. 3: That the site is physically suitable for the type and density of development proposed.
Findings of Fact: The project site is 18.8 acres and the industrial commerce center will meet setback, parking, landscaping and lot coverage requirements of SWIP. This will allow for adequate parking and landscaping to ensure the day to day operations will accommodate employees driving to the site, truck traffic and provide adequate landscaping.
Access to and from the project site would be provided from driveways on Poplar Avenue and Catawba Avenue with vehicle traffic utilizing separate entrances from commercial vehicles.
Finding No. 4: The design of the subdivision or the proposed improvements are not likely to cause substantial environmental damage or will not substantially and avoidably injure fish or wildlife or their habitat.
Findings of Fact: The design of Tentative Parcel Map No. 22-016 (TPM No. 20637) is not likely to cause substantial environmental damage or substantially and unavoidably injure fish or wildlife or their habitat. The area surrounding the project site has been developed with of industrial, high school, adult school and warehouses uses.
An Environmental Impact Report (EIR) has been prepared for this project pursuant to the California Environmental Quality Act (CEQA) and the 2019 Local Guidelines for Implementing CEQA. Based on the information in the EIR, though mitigation measures are included, the project will result in a potential significant impact and a statement of overriding considerations has been prepared. The mitigation 546
Resolution No. 2023-_____
measures established within the EIR will reduce any significant impacts to the surrounding area. The use is anticipated based on the Land Use Designation and the Zoning and Development Code.
The design of the map will not cause substantial environmental damage or will not substantially and avoidably injure fish or wildlife or their habitat. The design of the map will not cause substantial environmental damage or will not substantially and avoidably injure fish or wildlife or their habitat.
Finding No. 5: The design of the subdivision or type of improvements will not cause serious public health problems.
Findings of Fact: The design of Tentative Parcel Map No. 22-016 (TPM No. 20638) will not cause public health problems. The development will comply with the Zoning and Development Code and General Plan.
Improvements include connection to the public sewer, connection to the public storm drain, modification to the existing sidewalks, drainage, and grading to provide a safe and well-designed project for the area. Therefore, the project shall promote the public health, safety, and welfare of the surrounding community.
Finding No. 6: That the design of the subdivision or the type of improvements will not conflict with easements acquired by the public at large for access through or use of property within the proposed subdivision.
Findings of Fact: The design of Tentative Parcel Map No. 22-016 (TPM No. 20638) and public improvements will not conflict with access easements acquired by the public. Access to and from the project site would be provided from driveways on Poplar Avenue and Catawba Avenue.
The truck traffic will come in and out from the southern driveway along Poplar and Catawba Avenue and vehicle traffic will use two separate entrances on the north accessed from Poplar Avenue and Catawba Avenue.
SECTION 5. Design Review Findings. The City Council hereby makes the following findings for a DRP No. 22-040 in accordance with Section 30-120 “Findings for approval” of the Fontana Zoning and Development Code:
Finding No. 1: The proposal is consistent with any General Plan, Zoning and Development Code, and applicable Specific Plan.
Findings of Fact: The General Plan land use designation of General Industrial (I-G) is intended for employee-intensive uses, including business parking, research and development, technology centers, corporate and support office uses, clean industry, supporting retail uses, truck and equipment sales and related services. The industrial commerce facility provides for a consistent blend of well-designed industrial 547
Resolution No. 2023-_____
development in the immediate vicinity. The specific plan amendment incorporates the project into the Southwest Industrial Park Specific Plan, Slover East Industrial District. The industrial commerce facilities provide for a consistent blend of well-designed industrial development in the immediate vicinity because it provides consistency with the industrial uses to the south and west of the project site.
Finding No. 2: This proposal meets or exceeds the criteria contained in Chapter 30 of the Zoning and Development Code and will result in an appropriate, safe and desirable development promoting the public health, safety, and welfare of the community.
Findings of Fact: The site and architectural design for the 490,565 square foot industrial commerce center building has been designed with office space totaling approximately 10,000 square feet. A gate-secured truck court with 42 loading docks are on the south side of the building. The use of glazing, parapets, accent colors and painted banding will add structural and visual interest to the building.
Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from driveways on Poplar Avenue and Catawba Avenue.
Landscaping would be ornamental in nature and includes trees, shrubs, and drought-tolerant accent plants in addition to a variety of groundcovers.
The project will be an appropriate and desirable development for the area. With the requested associated general plan amendment and specific plan amendment from Residential Trucking (R-T) and to General Industrial (I-G), the project will meet or exceed the criteria contained in the Design Review section of the Fontana Zoning and Development Code and the SWIP specific plan.
The project will result in the construction of an industrial commerce center building totaling approximately 490,565 square feet. All new improvements such as driveways, streets, sidewalks, drive aisles, and setbacks will comply with all applicable building, zoning, and fire codes and shall promote the public health, safety, and welfare of the surrounding community.
Finding No. 3: The proposal is in its design and appearance is aesthetically and architecturally pleasing resulting in a safe, well-designed facility while enhancing the character of the surrounding neighborhood.
Findings of Fact: The industrial commerce center facility has been designed with the use of glazing, parapets, canopies, accent colors and painted 548
Resolution No. 2023-_____
banding will add structural and visual interest to the building.
Additionally, variations to the building face and roof lines will be architecturally pleasing. Access to and from the project site would be provided from driveways on Poplar Avenue and Catawba Avenue with vehicle traffic utilizing separate entrances from commercial vehicles. Landscaping would be ornamental in nature and features trees, shrubs, and drought-tolerant accent plants in addition to a variety of groundcover. The building will be compatible with the industrial commerce centers to the south and west of the project site and will provide a quality, aesthetically pleasing development for the surrounding neighborhood.
Finding No. 4: The site improvements are appropriate and will result in a safe, well designed facility.
Findings of Fact: The development complies with the Zoning and Development Code standards, Southwest Industrial Park Specific Plan standards, and the Sustainability Ordinance. The improvements include sewer and storm drain systems, site circulation, parking, landscaping, parks, lighting, driveways, sidewalks and decorative paving.
Section 6. Approval. Based on the findings in Section 3, the City Council hereby approves GPA No. 22-007 to amend the General Plan land use designation for 18.8- acres of land located along Rose Avenue to the east side of Poplar Avenue and west of Catawba Avenue from Residential Trucking (R-T) to General Industrial (I-G) as shown on Exhibit “A” attached hereto and incorporated by reference as fully set forth herein and to modify Exhibit 15.8 (Land Use Map) of the General Plan to reflect the same.
Section 7. General Plan Amendment Approval. Based on the findings in Section 3, the City Council of the City of Fontana hereby approves General Plan Amendment No. 22-007 to change the land use designation for a site from Residential Trucking (R-T) to General Industrial (I-G) on approximately 18.8 adjusted gross acres of 41 parcels (APNs) 0237-171-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, - 26, -27, -28, -30, -31, -32, 33), as shown as Exhibit “A” attached hereto and incorporated herein by reference as fully set forth herein.
Section 8. Tentative Parcel Map Approval. Based on the findings in Section 4, the City Council hereby approves TPM No. 22-016 subject to the Conditions of Approval attached here to as Exhibit “B” and incorporated by reference as fully set forth herein, to consolidate forty one (41) parcels located at the intersection of Popular Avenue and Rose Avenue into one parcel.
Section 9. Design Review Approval. Based on the findings in Section 5, the City Council hereby approves DRP No. 22-040 subject to the Conditions of Approval attached here to as Exhibit “C” and incorporated by reference as fully set forth herein, for the 549
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development of an industrial commerce center building on an 18.8-acre parcel at the located at the intersection of Popular Avenue and Rose Avenue.
Section 10. Resolution Regarding Custodian of Record. The documents and materials that constitute the record of proceedings on which this Resolution has been based are located at the Planning Department, 8353 Sierra Avenue, Fontana, CA 92335.
This information is provided in compliance with Public Resources Code section 21081.6.
Section 11. Certification. The City Clerk of the City Council shall certify to the adoption of this Resolution.
Section 12. Effective Date. This Resolution shall take effect thirty (30) days after the adoption of the City Council Ordinance adopting Specific Plan Amendment No. 22-003 and City Council Ordinance adopting Development Agreement No. 22-003 whichever is adopted later, provided however, if either of those Ordinances are 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 Resolution shall be null and void and have no further force and effect.
Section 13. Severability. If any provision of this Resolution or the application of any provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application.
APPROVED AND ADOPTED this 14th day of November 2023.
READ AND APPROVED AS TO LEGAL FORM:
_____________________
City Attorney
ATTEST:
I, Germaine Key, City Clerk of the City of Fontana and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City of Fontana at a regular meeting thereof, held on the 14th day of November 2023, by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
City Clerk of the City of Fontana
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Mayor of the City of Fontana
ATTEST:
______________________________________
City Clerk
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EXHIBIT “A”
EXISTING AND PROPOSED GENERAL PLAN LAND USE DESIGNATION - RESIDENTIAL TRUCKING (R‐T) TO GENERAL INDUSTRIAL (I‐G)
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EXHIBIT “B”
CITY OF FONTANA
CONDITIONS OF APPROVAL
PROJECT: Master Case No. (MCN) 22-079 November 14, 2023 Tentative Parcel Map No. 20638 (TPM No. 22-016)
LOCATION: The project site includes property located to the east side of Poplar Avenue, west of Catawba Avenue and north and south of Rose Avenue (APNs) 0237-171-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, - 15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 33.
PLANNING DEPARTMENT:
1. The rights and privileges granted by this project shall not become effective, nor shall the applicant commence the use for which this project is granted, until both of the following have occurred:
A. All requirements of the Fontana City’s Municipal Code shall be complied with.
B. All Conditions of Approval imposed on this project have been fulfilled.
2. The applicant shall defend, indemnify, and hold harmless the City of Fontana or its agents, officers, and employees from any claim, action or proceeding against the City of Fontana or its agents, officers, or employees to attack, set aside, void, or annul an approval of the Planning Commission and/or City Council concerning this subdivision, which action is brought within the time period provided for in Government Code Section 66499.37. The City of Fontana shall promptly notify the applicant of any claim, action, or proceeding and the City of Fontana shall cooperate in the defense. The applicant shall defend, indemnify, protect and hold harmless the City of Fontana or its agents, officers, attorneys and employees from any and all actual or alleged claims, actions or proceedings against the City of Fontana or its agents, officers, attorneys or employees to attack, set aside, void, annul or seek monetary damages arising out of any challenge to the applicant’s proposed project or to any approvals of the Planning Commission and/or City Council concerning this project, including but not limited to actions challenging CEQA actions, permits, variances, plot plans, design plans, maps, licenses, and amendments. The City of 553
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Fontana shall promptly notify the applicant of any claim, action, or proceeding and the City of Fontana shall cooperate in the defense.
In the event of any such third-party action or proceeding, the City shall have the right to retain its own separate legal counsel to defend the interests of the City. The applicant shall be responsible for reimbursing the City for such legal fees and costs, in their entirety, including actual attorneys’ fees, which may be incurred by the City in defense of such action or proceeding. This indemnification shall also include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities and expenses incurred in connection with such claim, action, or proceeding whether incurred by applicant, the City and/or any parties bringing such forth.
The City of Fontana and the applicant acknowledge that the City would not have approved this project if the City were to be liable to applicant in damages under or with respect to all or any part of this application or this condition of approval.
Accordingly, applicant shall not sue the City for damages or monetary relief for any matter arising from or related to this condition of approval. Applicant’s sole and exclusive remedy shall be limited to declaratory/injunctive relief, mandate, and/or specific performance.
3. Tentative Parcel Map No. 20638 (TPM No. 22-016) shall comply with all applicable development standards of, Chapter 26 (Subdivisions), Southwest Industrial Park Specific, Chapter 30 (Zoning and Development), Fontana Municipal Code (FMC) and the Subdivision Map Act.
4. The applicant/developer shall underground all utilities, which for the purpose of this condition shall also include all boxes, structures and/or other equipment located in the public right-of-way, any public utility easement(s) and on any private property, to the satisfaction of the Director of Planning. A note to this effect shall be placed on the map prior to recordation of the final map.
5. The applicant/developer shall comply with the mitigation measures identified in the Final Environmental Impact Report (FEIR), and Mitigation Monitoring and Reporting Program (MMRP) as approved by the Planning Commission.
6. All Conditions of Approval and Mitigation Monitoring and Reporting Program (MMRP) contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits.
7. Tentative Parcel Map No. 20638 (TPM No. 22-016) shall become null and void two (2) years from the date of approval, unless the appropriate permits have been obtained and construction, defined as permit obtainment, commencement of construction of the primary building on site, and successful completion of the first Building and Safety Division inspection, has commenced within this period.
8. In the event that one or more of the Conditions of Approval for this project needs to 554
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be amended and/or deleted due to health, safety or welfare concerns, the City Manager is authorized to approve or conditionally approve such amendment/deletion, provided that City Manager shall bring such proposed amendment/deletion to the City Council at the next available meeting for City Council ratification, but in no event later than sixty (60) days following the City Manager’s decision. The noticing of such City Council meeting for possible ratification shall be pursuant to Section No. 30-23 of the Municipal Code.
9. The applicant shall post a publicly visible sign on the project site with the telephone number and 24-hour point of contact for dust, noise and construction complaints.
The 24-hour point of contact shall be available 24 hours a day, 7 days a week and have authority to commit additional assets to control dust, or respond to construction complaints after hours, on weekends and on holidays. Construction shall be limited to 7:00 am to 6:00 pm on weekdays, 8:00 am to 5:00 pm on Saturdays, and no construction on Sundays and Holidays.
10. The applicant shall meet all requirements identified in the Industrial Commerce Sustainability Ordinance (Chapter 9, Article V of the Fontana Municipal Code).
11. The applicant shall meet all requirements of the Trip Reduction Measures in of the Zoning and Development Code (Section 30-962).
BUILDING & SAFETY DEPARTMENT:
12. The applicant shall design the project to show compliance with the latest adopted edition of the following codes as applicable:
A. California Building Code
B. California Residential Code
C. California Electrical Code
D. California Mechanical Code
E. California Plumbing Code
F. California Energy Code
G. California Fire Code
H. California Green Building Standards Code
13. The applicant shall install an automatic fire suppression system, which is required in all new construction per FMC Chapter 11 Article II. Design and type of system shall be based upon the requirements of the Building Code, Fire Code and the requirements of the Fontana Fire Prevention District.
14. The applicant shall comply with the requirements of the South Coast Air Quality Management District (909-396-2000). SCAQMD requirements shall be satisfied prior to the issuance of any permit if hazardous materials are stored and/or used. 555
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15. The applicant shall verify that any temporary building, trailer, commercial coach, etc. installed and/or used in connection with a construction project complies with FMC Chapter 5 Article XIV.
16. The applicant shall verify that all perimeter/boundary walls are designed and constructed so that the outer/exterior face of the wall is as close as possible to the lot line. In any case, the outer/exterior face of the wall shall be within two (2) inches of the lot line. Distances greater than two (2) inches may be approved prior to construction by the Building Official on a case by case basis for extenuating circumstances.
17. The applicant shall have the tract or parcel map recorded prior to the issuance of any building permits.
18. The applicant shall comply with the following grading requirements:
A. Grading plans shall be submitted to and approved by Building & Safety. The grading plans shall indicate all site improvements and shall indicate complete drainage paths of all drainage water run-offs.
B. All drainage water shall drain via approved methods to an approved location, such as a public street, a public drainage system, etc.
C. Drainage water shall not cross over a public sidewalk. Drainage water may, however, cross under a sidewalk if an approved drainage structure is used.
D. A recorded drainage acceptance agreement is required from adjoining property(s) receiving flows from this property.
E. No water course or natural drainage shall be obstructed.
F. Minimum slope or grade for ALL drainage structures shall be one half (0.50) percent for concrete and one (1.0) percent for all other, or as otherwise approved by the Building Official.
G. Drainage water shall not pass from an ‘improved’ type of drainage structure to an ‘unimproved’ type of drainage structure (e.g., concrete swale to a dirt swale) unless otherwise approved by the Building Official.
H. A complete hydrology study using the latest edition of the San Bernardino County Flood Control Hydrology Manual, and complete hydraulic calculations justifying the size, slope, capacity, etc. of any and all drainage structures being utilized, shall be submitted to and approved by Building & Safety.
I. The on site drainage system shall, as a minimum, be designed to handle the run off generated by a ten (10) year storm. Check for flooding of all on 556
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site structures (buildings) and all adjacent properties during a hundred (100) year storm.
J. The grading plans shall, as a minimum, contain sections at all lot lines and/or permit boundary lines. These sections shall clearly indicate:
1. The relationship between the proposed finished on site grade elevations and the existing adjacent property grade elevations (Indicate any additional drainage water that may come from an adjacent property.); and
2. The ground cover/finished surface material being proposed (e.g., type of pavement, plant material, etc.); and
3. All proposed drainage structures; and
4. Any proposed and/or required walls or fencing.
19. The applicant is required to obtain permits for the removal and/or demolition of structures.
20. The applicant shall verify that all exterior lighting shall be oriented, directed, and/or shielded as much as possible so that direct illumination does not infringe onto adjoining properties.
PRIOR TO ISSUANCE OF BUILDING/CONSTRUCTION PERMITS
21. The following items (as applicable) shall be completed by the applicant and submitted to Building & Safety prior to the issuance of building permits for this project:
A. Precise grading plans shall be approved
B. Rough grading completed
C. Compaction certification
D. Pad elevation certification
E. Rough grade inspection signed off by a City Building Inspector
22. If hazardous substances are used and/or stored, the applicant shall provide a technical opinion and report, identifying and developing methods of protection from the hazards presented by the hazardous materials, may be required. This report shall be prepared by a qualified person, firm, or corporation and submitted to Building & Safety. This report shall also explain the proposed facility's intended methods of operation and list all of the proposed materials, their quantities, classifications, and the effects of any chemical (material) inter mixing in the event of an accident or spill.
23. The applicant shall combine the existing parcels into a single parcel, or a lot line adjustment shall be done so that the proposed structure(s) does not cross any lot 557
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line and complies with all requirements of the California Building Code, prior to any building permits being issued.
ENGINEERING DEPARTMENT:
24. The Project shall be served by the City’s sanitary sewer system, all sewer facilities shall be constructed in accordance with the City Standards. Main trunk sewer line shall be in accordance with master sanitary sewer plan or as approved by the City Engineer.
25. The Applicant shall obtain design and plan approval from all utility providers having jurisdiction over the on-site and off-site utilities. Completion of all undergrounding of on-site and off-site utilities is required by Section 27-52 of the City Municipal Code and in accordance with plans and specifications approved by the City Engineer.
26. The Applicant shall maintain all improvements and utilities within the public right- ofway, including street sweeping, prior to issuance of final certificate of occupancy by the City.
PRIOR TO ISSUANCE OF GRADING PERMIT
27. The Applicant shall submit and gain approval of a complete Water Quality Management Plan report in accordance with the County of San Bernardino Technical Guidance Document and latest template.
28. The Applicant shall submit and gain approval of a final drainage study prepared in accordance with the County of San Bernardino Hydrology Manual and Fontana Master Plan of Drainage.
PRIOR TO MAP RECORDATION
29. The Applicant shall provide a Land Improvement Agreement, with accompanying security. The agreement shall be executed on City-provided forms.
PRIOR TO ISSUANCE OF CONSTRUCTION PERMITS
30. The Applicant shall record All map’s, lot line adjustments, right-of-way dedications, right-of-way vacations, easements, reciprocal access agreement as required for the development.
31. The Applicant shall submit engineered improvement plans and obtain full approval.
All required public improvements, including but not limited to streets, storm drainage systems, sewers, traffic signals, streetlights, striping, signs, landscape, and any required traffic control and/or detour plans. All plans shall
32. conform to City Standards and Specifications, and as approved by the City Engineer.
PRIOR TO ISSUANCE OF FINAL CERFITICATE OF OCCUPANCY
33. The Applicant/Engineer to provide the City of Fontana with As Built/Record Drawings for all public improvement plans.
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34. The Applicant/Engineer shall provide centerline ties to the City of Fontana reflecting proper setting of all survey monuments within the project limits and replace any existing survey monuments damaged or removed during construction.
35. The Applicant/Engineer shall set survey monuments as required by the map and corner records must be recorded with the County.
36. The Applicant/Landscape Architect shall provide a “Landscape Certificate of Compliance” certifying that the work has been designed, installed, and will be maintained in accordance with the City of Fontana’s Model Water Efficiency Landscape Ordinance (Ordinance 1743, FCC Section 28).
37. All sewers shall be video inspected by applicant/contractor. Sewer video shall include clean-out connection, clean-out to lateral segment, lateral, and main line.
Contractor performing the video inspection must have a NASSCO PACP, LACP, and MACP certification. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff with an accompanying full report. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required. If a TCO (Temporary Certificate of Occupancy) is required a full video inspection will be required as well at that time.
38. All storm drains shall be video inspected by applicant/contractor. Storm drain video shall include main lines and laterals. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required.
39. The Applicant/Engineer of Record shall submit a conforming copy of the recorded Memorandum of Agreement for the Water Quality Management Plan and Storm Water Best Management Practice transfer. The Access, Maintenance, and the WQMP Certification for BMP Completion must be submitted to the City Project Engineer.
FIRE DEPARTMENT:
40. Jurisdiction: The above referenced project is under the jurisdiction of the Fontana fire Protection District (herein “Fire Department”). Prior to any construction occurring on any parcel, the applicant shall contact the Fire Department for verification of current fire protection requirements. All new construction shall comply with the current California Fire Code requirements and all applicable statutes, codes, ordinances, and standards of the Fire Department.
41. Fire Access Road Width: Prior to map recordation, all fire access roadways shall be designed to meet the requirements for this development and shall be approved by the Fire Department. All buildings shall have access provided by approved roads, alleys, and private drives with a minimum twenty-six (26) foot unobstructed width 559
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and vertically to fourteen (14) feet six (6) inches in height. Buildings three (3) stories in height or more shall have a minimum access of thirty (30) feet unobstructed width and vertically to fourteen (14) feet six (6) inches in height. California Fire Code Chapter 5 & SBCoFD Standard A-1.
42. Turnaround: An approved turnaround shall be provided at the end of each roadway one hundred and fifty (150) feet or more in length. Cul-de-sac length shall not exceed six hundred (600) feet; all roadways shall not exceed a 12% grade and have a minimum of nineteen (19) foot inside radius and a forty-five (45) foot outside radius for all turns. California Fire Code Chapter 5 & SBCoFD Standard A-1.
43. Fire Lanes: The applicant shall submit a site plan to the Fire Department for review and approval of all proposed signage and striping for all fire access roadways. All curbs adjacent to fire lanes shall be painted red and “No Parking, Fire Lane” signs shall be installed on public and private roads in accordance with approved standards. SBCoFD Standard A-2.
44. Water System Commercial: Prior to map recordation or lot line adjustment, all water supply systems shall be designed to meet the required fire flow for this development and shall be approved by the Fire Department. The required fire flow shall be determined by using Appendix BB of the California Fire Code. A minimum of one new six (6) inch fire hydrant assembly with two (2) two and one half (2 1/2) inch and one (1) four (4) inch outlet (4”x2.5”x2.5”) shall be provided. All fire hydrants shall be spaced no more than three hundred (300) feet apart as measured along vehicular travel-ways. California Fire Code Chapter 5 & SBCoFD Standard W-2. The Fire Flow for this project shall be: 4,000 GPM for a two-hour duration at 20 psi residual operating pressure. Fire Flow is based on a 490,550 Square Foot structure.
45. Hydrant Marking: Blue reflective pavement markers indicating fire hydrant locations shall be installed as specified by the Fire Department. SBCoFD Standard W-2.
46. Water Improvement Plan: The applicant shall submit “Water Improvement Plans” to Fontana Fire Prevention. W.I.P. to include site plan, existing & proposed PUBLIC fire hydrant locations, building construction type, largest building square footage details, lot size detail in square feet, and description of what is being constructed.
Once approved by Fire Department, applicant will provide stamped/approved W.I.P to water purveyor for their construction needs. ON-SITE PRIVATE FIRE WATER
SUPPLY SHALL BE INSPECTED AND IN WORKING CONDITION PRIOR TO PLACING COMBUSTIBLE MATERIALS ON THE JOBSITE. California Fire Code Chapter 5.
47. Combustible Protection: Prior to combustibles being placed on the project site an approved paved roadway providing fire access and fire hydrants providing an acceptable fire flow shall be installed. California Fire Code Chapter 5. 560
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48. Fire Sprinkler-NFPA #13: An automatic fire sprinkler system complying with NFPA 13 and Fire Department standards is required. A fire sprinkler contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The plans shall include hydraulic calculations and manufacturer specification sheets. The required fees shall be paid at the time of plan submittal. California Fire Code Chapter 9 & SBCoFD Standard F-1.
49. Fire Alarm, Waterflow Monitoring: A water flow monitoring fire alarm system complying with the California Fire Code, NFPA and all applicable codes is required for fire sprinkler systems with twenty (20) sprinkler heads or more. A fire alarm contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9, NFPA 72 & SBCoFD Standard F-5.
50. Smoke Removal: An automatic smoke removal system complying with the California Fire Code, NFPA and all applicable codes is required. The applicant shall submit three (3) sets of detailed smoke removal system plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9.
51. Fire Extinguishers: Hand portable fire extinguishers are required. The location, type, and cabinet design shall be approved by the Fire Department. California Fire Code Chapter 9.
52. Commercial (large facility) Addressing: Commercial and industrial developments in excess of 100,000 sq. ft. shall have the street address installed on the building with numbers that are a minimum twelve (12) inches in height and with a one and one half (1½) inch stroke. The street address shall be visible from the street. During the hours of darkness, the numbers shall be electrically illuminated (internal or external).
Where the building is two hundred (200) feet or more from the roadway, additional non-illuminated contrasting six (6) inch numbers shall be displayed at the property access entrances. California Fire Code Chapter 5 & SBCoFD Standard B-1
53. Key Box: An approved Fire Department key box is required. The key box shall be provided with a tamper switch and shall be monitored by a Fire Department approved central monitoring service. California Fire Code Chapter 5 & SBCoFD Standard A-4
54. Security Gates: In commercial, industrial, and multi-family complexes, all swing gates shall have an approved fire department Knox Lock. Where an automatic electric security gate is used, an approved Fire Department override switch is required. California Fire Code Chapter 5 & SBCoFD Standard A-3
55. Material Identification Placards: The applicant shall install, in all locations deemed appropriate by the Fire Department, approved material identification placards on the outside of all buildings and/or storage tanks that store hazardous or flammable 561
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materials. Additional placards shall be required inside the buildings when chemicals are segregated into separate areas. California Fire Code Chapter 50 & NFPA 704.
56. High-Piled Storage: The applicant shall submit an application for a High-Piled Storage permit for storage of over 12’ in height of Class I-IV commodities and/or over 6’ in height of high hazard commodities. Three (3) sets of detailed plans and a commodity analysis report shall be submitted to the Fire Department for review and approval. The applicant shall submit to the Fire Department concurrently with any racking permits to the Building and Safety division. California Fire Code Chapter 32 & SBCoFD Standard S-1.
57. Secondary Access: The development shall have a minimum of two (2) points of vehicular access during each phase of construction for fire and emergency access purposes and for evacuation routes. SBCoFD Standard A-1
58. San Bernardino County Fire Standards/Codes: Items not directly called out on these Conditions of Approval, shall also adhere to currently adopted San Bernardino County Fire Standards, California Fire Code, & NFPA.
END OF CONDITIONS
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EXHIBIT “C”
CITY OF FONTANA
CONDITIONS OF APPROVAL
PROJECT: Master Case No. (MCN) 22-079 DATE: November 14, 2023 Design Review (DRP) No. 22-040
LOCATION: The project site includes property located to the east side of Poplar Avenue, west of Catawba Avenue and north and south of Rose Avenue (APNs) 0237-171-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, - 15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 33.
PLANNING DEPARTMENT:
1. This Design Review shall become null and void two (2) years from the date of approval, unless the appropriate permits have been obtained and construction, defined as permit obtainment, commencement of construction of the primary building on site, and successful completion of the first Building and Safety Department inspection, has commenced within this period.
2. The applicant shall defend, indemnify, protect and hold harmless the City of Fontana or its agents, officers, attorneys and employees from any and all actual or alleged claims, actions or proceedings against the City of Fontana or its agents, officers, attorneys or employees to attack, set aside, void, annul or seek monetary damages arising out of any challenge to the applicant’s proposed project or to any approvals of the Planning Commission and/or City Council concerning this project, including but not limited to actions challenging CEQA actions, permits, variances, plot plans, design plans, maps, licenses, and amendments. The City of Fontana shall promptly notify the applicant of any claim, action, or proceeding and the City of Fontana shall cooperate in the defense.
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In the event of any such third-party action or proceeding, the City shall have the right to retain legal counsel. The applicant shall be responsible and reimburse the City for such legal fees and costs, in their entirety, including actual attorneys’ fees, which may be incurred by the City in defense of such action or proceeding. This indemnification shall also include, but not be limited to, damages, fees and/or costs awarded against the City, if any, and cost of suit, attorneys’ fees, and other costs, liabilities and expenses incurred in connection with such claim, action, or proceeding whether incurred by applicant, the City and/or any parties bringing such forth.
Except as required under applicable State and Federal law, the City of Fontana and the applicant acknowledge that the City would not have approved this project if the City were to be liable to applicant in damages under or with respect to all or any part of this application or this condition of approval. Accordingly, applicant shall not sue the City for damages or monetary relief for any matter arising from or related to this condition of approval. Applicant’s sole and exclusive remedy shall be limited to declaratory/injunctive relief, mandate, and/or specific performance.
3. This project shall comply with all applicable provisions, regulations and development standards of the Fontana Zoning Code and Development Code, Fontana Municipal Code (FMC) and the Southwest Industrial Park Specific Plan.
4. The applicant shall meet all requirements identified in the Industrial Commerce Sustainability Ordinance (Chapter 9, Article V of the Fontana Municipal Code).
5. A Register of Professional Archaeologists (RPA)-qualified archeologist experienced with Native American artifact identification and approved by the City of Fontana shall be present to monitor the first two (2) days of site preparation/ grubbing; the first two (2) days of mass grading; and the first two (2) days of utility trenching. Such monitoring activities may be reduced or terminated depending on the findings and recommendations of the archeologist. In the event that prehistoric or historic cultural resources be uncovered during these activities, representatives of the tribal entity(s) whom consider the project site to be within their traditional use area shall be contacted and invited to the site to review the find, and monitoring shall be continued at the discretion of archeologist.
6. Historic Archaeological Resources
A. Upon discovery of any tribal cultural or archaeological resources, cease construction activities in the immediate vicinity of the find until the find can be assessed. All tribal cultural and archaeological resources unearthed by project construction activities shall be evaluated by the qualified archaeologist and tribal monitor/consultant. If the resources are Native American in origin, interested Tribes (as a result of correspondence with area Tribes) shall coordinate with the landowner regarding treatment and curation of these resources. Typically, the Tribe will request preservation in place or recovery for educational purposes. Work may continue on other parts of the project while evaluation takes place.
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B. Preservation in place shall be the preferred manner of treatment. If preservation in place is not feasible, treatment may include implementation of archaeological data recovery excavation to remove the resource along the subsequent laboratory processing and analysis. All Tribal Cultural Resources shall be returned to the Tribe. Any historic archaeological material that is not Native American in origin shall be curated at a public, non-profit institution with a research interest in the materials, if such an institution agrees to accept the material. If no institution accepts the archaeological material, they shall be offered to the Tribe or a local school or historical society in the area for educational purposes.
C. Archaeological and Native American monitoring and excavation during construction projects shall be consistent with current professional standards.
All feasible care to avoid any unnecessary disturbance, physical modification, or separation of human remains and associated funerary objects shall be taken.
Principal personnel shall meet the Secretary of the Interior standards for archaeology and have a minimum of 10 years’ experience as a principal investigator working with Native American archaeological sites in southern California. The Qualified Archaeologist shall ensure that all other personnel are appropriately trained and qualified.
7. The construction contractor shall use the following source controls at all times:
A. Construction shall be limited to 7:00 am to 6:00 pm on weekdays, 8:00 am to 5:00 pm on Saturdays, and no construction on Sundays and holidays unless it is approved by the Building Inspector for cases that are considered urgently necessary as defined in Section No. 18-63(7) of the Municipal Code. For all noise-producing equipment, use types and models that have the lowest horsepower and the lowest noise generating potential practical for their intended use.
B. The construction contractor will ensure that all construction equipment, fixed or mobile, is properly operating (tuned-up) and lubricated, and that mufflers are working adequately.
C. Have only necessary equipment onsite.
D. Use manually-adjustable or ambient-sensitive backup alarms. When working adjacent to residential use(s), the construction contractor will also use the following path controls, except where not physically feasible, when necessary:
E. Install portable noise barriers, including solid structures and noise blankets, between the active noise sources and the nearest noise receivers.
F. Temporarily enclose localized and stationary noise sources.
G. Store and maintain equipment, building materials, and waste materials as far as practical from as many sensitive receivers as practical.
8. All Conditions of Approval contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions, signed by the property owner or legal representative, shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits. 565
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9. The current development fees must be paid prior to issuance of building/construction permits.
10. In the event that one or more of the Conditions of Approval for this project needs to be amended and/or deleted due to health, safety or welfare concerns, the City Manager is authorized to approve or conditionally approve such amendment/deletion, provided that City Manager shall bring such proposed amendment/deletion to the City Council at the next available meeting for City Council ratification, but in no event later than sixty (60) days following the City Manager’s decision. The noticing of such City Council meeting for possible ratification shall be pursuant to Sections No. 30-30 and Sections No. 30-31 of the Municipal Code.
11. Color combinations and color schemes for buildings approved under a design review application shall not be modified or changed without prior approval of the original approving body by a revision to the original application. Minor hue color changes may be approved by the Director of Planning. The Director of Planning may refer minor hue color changes to the original approving body for consideration under a revision to the original application.
12. Exterior lighting compatible with the design of the building shall be provided for the parking lot. The lighting shall be directed and shielded so as to illuminate only the parking area and to avoid glare impacts on adjacent properties.
13. Sidewalks shall be provided for all new developments in accordance with the city’s circulation element of the General Plan.
14. All parking stalls shall be clearly marked by double striping pavement painting.
Parking stall sizes shall be measured from the mid-point between the striping. No parking spaces shall be designated in an industrial parking facility, except for disabled persons parking, van pool, carpool, or any other designated parking as required by law.
15. All signs shall be reviewed under a separate Design Review Sign application.
16. All roof-mounted equipment and ground mounted equipment shall be screened from view from adjacent properties and streets to the satisfaction of the Director of Planning.
17. All landscaping shall be healthy and maintained in a reasonable manner as determined by the Director of Planning or his/her designee.
18. The transformer shall be screened by a solid screen wall and mature, dense landscaping, and not visible from the public right-of-way.
19. There shall be no refrigerated uses on site; unless, a future tenant follows any applicable studies/memorandums to amend this Condition of Approval. 566
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20. Development fees and Planning Department final inspection fee must be paid prior to Certificate of Occupancy.
21. Applicant shall pay all applicable service fees pursuant to the City of Fontana Municipal Code.
22. The applicant/developer/property owner shall provide up-lighting on the perimeter and up-light proposed trees to the satisfaction of the Director of Planning and his/her designee.
23. In the event that any off-site utility and/or infrastructure improvements are required as a direct result of future projects, construction of such off-site utility and infrastructure improvements shall not occur concurrently with the demolition, site preparation, and grading phases of project construction. This requirement shall be clearly noted on all applicable grading and/or building plans.
24. Adhere to the City standard of one foot candle minimum for all entrances, exits, pedestrian paths, parking lots, and activity areas. Reflect all light fixtures on the site plan. All areas shall be illuminated during all hours of darkness and all luminaries utilized shall be vandal-resistant fixtures. The type of lighting shall be fluorescent, white L.E.D.s or metal halide. Provide a photometric layout under separate exhibit to ensure the minimum light standard is met.
25. Incorporate an anti-graffiti coating onto the exterior of all proposed block walls to discourage graffiti.
26. The applicant shall meet all requirements of the Trip Reduction Measures in of the Zoning Code (Section 30-962).
27. The developer shall be required to comply with Development Agreement (AGR) No. 22-003
Prior To Issuance of Grading Permit
28. All Conditions of Approval and Mitigation, Monitoring, and Reporting Program (MMRP) contained herein shall be incorporated into all applicable final construction plans and a copy of these conditions shall be placed on a sheet in the final building and grading plans prior to issuance of any building or grading permits.
BUILDING & SAFETY DEPARTMENT:
29. The applicant shall design the project to show compliance with the latest adopted edition of the following codes as applicable:
A. California Building Code
B. California Residential Code
C. California Electrical Code
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D. California Mechanical Code
E. California Plumbing Code
F. California Energy Code
G. California Fire Code
H. California Green Building Standards Code
30. The applicant shall install an automatic fire suppression system, which is required in all new construction per FMC Chapter 11 Article II. Design and type of system shall be based upon the requirements of the Building Code, Fire Code and the requirements of the Fontana Fire Prevention District.
31. The applicant shall comply with the requirements of the South Coast Air Quality Management District (909-396-2000). SCAQMD requirements shall be satisfied prior to the issuance of any permit if hazardous materials are stored and/or used.
32. The applicant shall verify that any temporary building, trailer, commercial coach, etc. installed and/or used in connection with a construction project complies with FMC Chapter 5 Article XIV.
33. The applicant shall verify that all perimeter/boundary walls are designed and constructed so that the outer/exterior face of the wall is as close as possible to the lot line. In any case, the outer/exterior face of the wall shall be within two (2) inches of the lot line. Distances greater than two (2) inches may be approved prior to construction by the Building Official on a case by case basis for extenuating circumstances.
34. The applicant shall have the tract or parcel map recorded prior to the issuance of any building permits.
35. The applicant shall comply with the following grading requirements:
A. Grading plans shall be submitted to and approved by Building & Safety. The grading plans shall indicate all site improvements and shall indicate complete drainage paths of all drainage water run-offs.
B. All drainage water shall drain via approved methods to an approved location, such as a public street, a public drainage system, etc.
C. Drainage water shall not cross over a public sidewalk. Drainage water may, however, cross under a sidewalk if an approved drainage structure is used.
D. A recorded drainage acceptance agreement is required from adjoining property(s) receiving flows from this property.
E. No water course or natural drainage shall be obstructed.
F. Minimum slope or grade for ALL drainage structures shall be one half (0.50) percent for concrete and one (1.0) percent for all other, or as otherwise approved by the Building Official.
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G. Drainage water shall not pass from an ‘improved’ type of drainage structure to an ‘unimproved’ type of drainage structure (e.g., concrete swale to a dirt swale) unless otherwise approved by the Building Official.
H. A complete hydrology study using the latest edition of the San Bernardino County Flood Control Hydrology Manual, and complete hydraulic calculations justifying the size, slope, capacity, etc. of any and all drainage structures being utilized, shall be submitted to and approved by Building & Safety.
I. The on site drainage system shall, as a minimum, be designed to handle the run off generated by a ten (10) year storm. Check for flooding of all on site structures (buildings) and all adjacent properties during a hundred (100) year storm.
J. The grading plans shall, as a minimum, contain sections at all lot lines and/or permit boundary lines. These sections shall clearly indicate:
1. The relationship between the proposed finished on site grade elevations and the existing adjacent property grade elevations (Indicate any additional drainage water that may come from an adjacent property.); and
2. The ground cover/finished surface material being proposed (e.g., type of pavement, plant material, etc.); and
3. All proposed drainage structures; and
4. Any proposed and/or required walls or fencing.
36. The applicant is required to obtain permits for the removal and/or demolition of structures.
37. The applicant shall verify that all exterior lighting shall be oriented, directed, and/or shielded as much as possible so that direct illumination does not infringe onto adjoining properties.
PRIOR TO ISSUANCE OF BUILDING/CONSTRUCTION PERMITS
38. The following items (as applicable) shall be completed by the applicant and submitted to Building & Safety prior to the issuance of building permits for this project:
A. Precise grading plans shall be approved
B. Rough grading completed
C. Compaction certification
D. Pad elevation certification
E. Rough grade inspection signed off by a City Building Inspector
39. If hazardous substances are used and/or stored, the applicant shall provide a technical opinion and report, identifying and developing methods of protection from the hazards presented by the hazardous materials, may be required. This report shall be prepared by a qualified person, firm, or corporation and submitted to Building & Safety. This report shall also explain the proposed facility's intended 569
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methods of operation and list all of the proposed materials, their quantities, classifications, and the effects of any chemical (material) inter mixing in the event of an accident or spill.
40. The applicant shall combine the existing parcels into a single parcel, or a lot line adjustment shall be done so that the proposed structure(s) does not cross any lot line and complies with all requirements of the California Building Code, prior to any building permits being issued.
ENGINEERING DEPARTMENT:
41. The Project shall be served by the City’s sanitary sewer system, all sewer facilities shall be constructed in accordance with the City Standards. Main trunk sewer line shall be in accordance with master sanitary sewer plan or as approved by the City Engineer.
42. The Applicant shall obtain design and plan approval from all utility providers having jurisdiction over the on-site and off-site utilities. Completion of all undergrounding of on-site and off-site utilities is required by Section 27-52 of the City Municipal Code and in accordance with plans and specifications approved by the City Engineer.
43. The Applicant shall maintain all improvements and utilities within the public right- ofway, including street sweeping, prior to issuance of final certificate of occupancy by the City.
PRIOR TO ISSUANCE OF GRADING PERMIT
44. The Applicant shall submit and gain approval of a complete Water Quality Management Plan report in accordance with the County of San Bernardino Technical Guidance Document and latest template.
45. The Applicant shall submit and gain approval of a final drainage study prepared in accordance with the County of San Bernardino Hydrology Manual and Fontana Master Plan of Drainage.
PRIOR TO MAP RECORDATION
46. The Applicant shall provide a Land Improvement Agreement, with accompanying security. The agreement shall be executed on City-provided forms.
PRIOR TO ISSUANCE OF CONSTRUCTION PERMITS
47. The Applicant shall record All map’s, lot line adjustments, right-of-way dedications, right-of-way vacations, easements, reciprocal access agreement as required for the development.
48. The Applicant shall submit engineered improvement plans and obtain full approval.
All required public improvements, including but not limited to streets, storm drainage systems, sewers, traffic signals, streetlights, striping, signs, landscape, and any required traffic control and/or detour plans. All plans shall 570
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49. conform to City Standards and Specifications, and as approved by the City Engineer.
PRIOR TO ISSUANCE OF FINAL CERFITICATE OF OCCUPANCY
50. The Applicant/Engineer to provide the City of Fontana with As Built/Record Drawings for all public improvement plans.
51. The Applicant/Engineer shall provide centerline ties to the City of Fontana reflecting proper setting of all survey monuments within the project limits and replace any existing survey monuments damaged or removed during construction.
52. The Applicant/Engineer shall set survey monuments as required by the map and corner records must be recorded with the County.
53. The Applicant/Landscape Architect shall provide a “Landscape Certificate of Compliance” certifying that the work has been designed, installed, and will be maintained in accordance with the City of Fontana’s Model Water Efficiency Landscape Ordinance (Ordinance 1743, FCC Section 28).
54. All sewers shall be video inspected by applicant/contractor. Sewer video shall include clean-out connection, clean-out to lateral segment, lateral, and main line.
Contractor performing the video inspection must have a NASSCO PACP, LACP, and MACP certification. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff with an accompanying full report. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required. If a TCO (Temporary Certificate of Occupancy) is required a full video inspection will be required as well at that time.
55. All storm drains shall be video inspected by applicant/contractor. Storm drain video shall include main lines and laterals. Applicant shall provide a copy of the video on DVD or flash drive to inspection staff. Videos to be inspected and approved by City Inspector. If removal and replacement of any utility is required, a subsequent video of the repair will be required.
56. The Applicant/Engineer of Record shall submit a conforming copy of the recorded Memorandum of Agreement for the Water Quality Management Plan and Storm Water Best Management Practice transfer. The Access, Maintenance, and the WQMP Certification for BMP Completion must be submitted to the City Project Engineer.
FIRE DEPARTMENT:
57. Jurisdiction: The above referenced project is under the jurisdiction of the Fontana fire Protection District (herein “Fire Department”). Prior to any construction occurring on any parcel, the applicant shall contact the Fire Department for verification of current fire protection requirements. All new construction shall comply with the 571
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current California Fire Code requirements and all applicable statutes, codes, ordinances, and standards of the Fire Department.
59. Fire Access Road Width: Prior to map recordation, all fire access roadways shall be designed to meet the requirements for this development and shall be approved by the Fire Department. All buildings shall have access provided by approved roads, alleys, and private drives with a minimum twenty-six (26) foot unobstructed width and vertically to fourteen (14) feet six (6) inches in height. Buildings three (3) stories in height or more shall have a minimum access of thirty (30) feet unobstructed width and vertically to fourteen (14) feet six (6) inches in height. California Fire Code Chapter 5 & SBCoFD Standard A-1.
60. Turnaround: An approved turnaround shall be provided at the end of each roadway one hundred and fifty (150) feet or more in length. Cul-de-sac length shall not exceed six hundred (600) feet; all roadways shall not exceed a 12% grade and have a minimum of nineteen (19) foot inside radius and a forty-five (45) foot outside radius for all turns. California Fire Code Chapter 5 & SBCoFD Standard A-1.
61. Fire Lanes: The applicant shall submit a site plan to the Fire Department for review and approval of all proposed signage and striping for all fire access roadways. All curbs adjacent to fire lanes shall be painted red and “No Parking, Fire Lane” signs shall be installed on public and private roads in accordance with approved standards. SBCoFD Standard A-2.
62. Water System Commercial: Prior to map recordation or lot line adjustment, all water supply systems shall be designed to meet the required fire flow for this development and shall be approved by the Fire Department. The required fire flow shall be determined by using Appendix BB of the California Fire Code. A minimum of one new six (6) inch fire hydrant assembly with two (2) two and one half (2 1/2) inch and one (1) four (4) inch outlet (4”x2.5”x2.5”) shall be provided. All fire hydrants shall be spaced no more than three hundred (300) feet apart as measured along vehicular travel-ways. California Fire Code Chapter 5 & SBCoFD Standard W-2. The Fire Flow for this project shall be: 4,000 GPM for a two-hour duration at 20 psi residual operating pressure. Fire Flow is based on a 490,550 Square Foot structure.
63. Hydrant Marking: Blue reflective pavement markers indicating fire hydrant locations shall be installed as specified by the Fire Department. SBCoFD Standard W-2.
64. Water Improvement Plan: The applicant shall submit “Water Improvement Plans” to Fontana Fire Prevention. W.I.P. to include site plan, existing & proposed PUBLIC fire hydrant locations, building construction type, largest building square footage details, lot size detail in square feet, and description of what is being constructed.
Once approved by Fire Department, applicant will provide stamped/approved W.I.P to water purveyor for their construction needs. ON-SITE PRIVATE FIRE WATER
SUPPLY SHALL BE INSPECTED AND IN WORKING CONDITION PRIOR TO 572
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PLACING COMBUSTIBLE MATERIALS ON THE JOBSITE. California Fire Code Chapter 5.
65. Combustible Protection: Prior to combustibles being placed on the project site an approved paved roadway providing fire access and fire hydrants providing an acceptable fire flow shall be installed. California Fire Code Chapter 5.
66. Fire Sprinkler-NFPA #13: An automatic fire sprinkler system complying with NFPA 13 and Fire Department standards is required. A fire sprinkler contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The plans shall include hydraulic calculations and manufacturer specification sheets. The required fees shall be paid at the time of plan submittal. California Fire Code Chapter 9 & SBCoFD Standard F-1.
67. Fire Alarm, Waterflow Monitoring: A water flow monitoring fire alarm system complying with the California Fire Code, NFPA and all applicable codes is required for fire sprinkler systems with twenty (20) sprinkler heads or more. A fire alarm contractor shall submit three (3) sets of detailed plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9, NFPA 72 & SBCoFD Standard F-5.
68. Smoke Removal: An automatic smoke removal system complying with the California Fire Code, NFPA and all applicable codes is required. The applicant shall submit three (3) sets of detailed smoke removal system plans to the Fire Department for review and approval. The required fees shall be paid at the time of plan submittal.
California Fire Code Chapter 9.
69. Fire Extinguishers: Hand portable fire extinguishers are required. The location, type, and cabinet design shall be approved by the Fire Department. California Fire Code Chapter 9.
70. Commercial (large facility) Addressing: Commercial and industrial developments in excess of 100,000 sq. ft. shall have the street address installed on the building with numbers that are a minimum twelve (12) inches in height and with a one and one half (1½) inch stroke. The street address shall be visible from the street. During the hours of darkness, the numbers shall be electrically illuminated (internal or external).
Where the building is two hundred (200) feet or more from the roadway, additional non-illuminated contrasting six (6) inch numbers shall be displayed at the property access entrances. California Fire Code Chapter 5 & SBCoFD Standard B-1
71. Key Box: An approved Fire Department key box is required. The key box shall be provided with a tamper switch and shall be monitored by a Fire Department approved central monitoring service. California Fire Code Chapter 5 & SBCoFD Standard A-4
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72. Security Gates: In commercial, industrial, and multi-family complexes, all swing gates shall have an approved fire department Knox Lock. Where an automatic electric security gate is used, an approved Fire Department override switch is required. California Fire Code Chapter 5 & SBCoFD Standard A-3
73. Material Identification Placards: The applicant shall install, in all locations deemed appropriate by the Fire Department, approved material identification placards on the outside of all buildings and/or storage tanks that store hazardous or flammable materials. Additional placards shall be required inside the buildings when chemicals are segregated into separate areas. California Fire Code Chapter 50 & NFPA 704.
74. High-Piled Storage: The applicant shall submit an application for a High-Piled Storage permit for storage of over 12’ in height of Class I-IV commodities and/or over 6’ in height of high hazard commodities. Three (3) sets of detailed plans and a commodity analysis report shall be submitted to the Fire Department for review and approval. The applicant shall submit to the Fire Department concurrently with any racking permits to the Building and Safety division. California Fire Code Chapter 32 & SBCoFD Standard S-1.
75. Secondary Access: The development shall have a minimum of two (2) points of vehicular access during each phase of construction for fire and emergency access purposes and for evacuation routes. SBCoFD Standard A-1
76. San Bernardino County Fire Standards/Codes: Items not directly called out on these Conditions of Approval, shall also adhere to currently adopted San Bernardino County Fire Standards, California Fire Code, & NFPA.
END OF CONDITIONS OF APPROVAL
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ATTACHMENT NO. 14
ORDINANCE NO. _____
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FONTANA APPROVING, PURSUANT TO AN ENVIRONMENTAL
IMPACT REPORT, SPECIFIC PLAN AMENDMENT NO. 22-003, AN
AMENDMENT TO THE SOUTHWEST INDUSTRIAL PARK (SWIP)
SPECIFIC PLAN TO CHANGE 18.8 ACRES FROM THE RESIDENTIAL
TRUCKING DISTRICT (RTD) TO SLOVER EAST INDUSTRIAL
DISTRICT (SED) ALONG ROSE AVENUE EAST OF POPLAR AVENUE
AND WEST OF CATAWBA AVENUE.
WHEREAS, the City of Fontana (the “City”) received an application on July 07, 2022 from Seefried Industrial Properties, Inc. (“Applicant”) for a General Plan Amendment (GPA No. 22-007) to amend the General Plan land use designation for 18.8 acres of land located along Rose Avenue to the east side of Poplar Avenue and west of Catawba Avenue from Residential Trucking (R-T) to General Industrial (I-G) and to modify Exhibit 15.8 (Land Use Map) of the General Plan to reflect the same; Specific Plan Amendment (SPA No. 22-003) to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use for the project site from Residential Trucking District (RTD) to Slover East Industrial District (SED); Development Agreement (AGR No. 22-003) to include an agreement for the payment of a public benefit fee; Tentative Parcel Map (TPM No. 22- 016) (TPM No. 20638) for the consolidation of 41 parcels into one parcel; and Design Review (DRP No. 22-040) for the development of an industrial commerce building totaling approximately 490,565 square feet along with site improvements for APNs 0237-171-01, - 02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237- 172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, - 31, -32, 33). The amendments together are known as Master Case Number 22-079 (“MCN 22-079”); and
WHEREAS, SPA No. 22-003 will allow the development of an industrial commerce center building totaling approximately 490,565 square feet and associated on-site and off-site improvements; and
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing and received public testimony and evidence by the Applicant, City staff, and other interested parties for MCN 22-079 and Final Environmental Impact Report (EIR) and Mitigation Monitoring and Reporting Program (MMRP). After carefully considering all information pertaining to the project, the Planning Commission voted 3-0 to recommend approval to City Council (“City Council”) by Resolution No. PC 2023-037; and
WHEREAS, on November 14, 2023, the City Council held a noticed public hearing on the EIR, MMRP, and MCN No. 22-079, received testimony from all parties and documentation from the Planning Commission’s public hearing on October 17, 2023; and WHEREAS, on November 14, 2023, the City Council certified the EIR and adopted the MMRP; and
WHEREAS, based on the information presented to the City Council at the Public hearing held on November 14, 2023, the City Council found that the amendments and 575
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Ordinance No.___
project are in conformance with the goals and policies of the General Plan to provide a community that is balanced between residential, commercial, and industrial uses, is developed with high standards, and provides diverse economic and social opportunities for our citizens and those who wish to invest in the City.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The recitals are true, correct and incorporated herein by this reference.
SECTION 2. CEQA. 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 EIR was prepared for development, including Specific Plan Amendment No. 22-003. The City Council has certified the 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. Findings. The City Council hereby makes the following findings for Specific Plan Amendment No. 22-003 in accordance with Section 30-67 “Purpose” of the Fontana Zoning and Development Code:
Finding: A Specific Plan may be amended by changing the development standards or zoning designation 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 specific plan amendment is to the remove an 18.8-acre site from the Residential Trucking District (RTD) and to include it in the Slover East Industrial District (SED) within the Southwest Industrial Park Specific Plan (SWIP) for the development of an industrial commerce building totaling 490,565 square feet. This development will provide an attractive development with quality modern architecture and vast landscaping. This type of development will enhance the area with an attractive street scene and high-quality industrial development. This type of development will be consistent with the industrial area.
SECTION 4. Approval. Based on the findings in Section 3, Specific Plan Amendment No. 22-003 is hereby approved and the Southwest Industrial Park Specific Plan is amended to establish the project within the Slover East Industrial District as shown on Exhibit “A”, attached hereto and by this reference incorporated herein.
SECTION 5. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from 576
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Ordinance No.___
the passage thereof, shall be published by the City Clerk at least once in the Fontana Herald News, a 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.
SECTION 6. 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.
SECTION 7. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.
SECTION 8. Severability. If any provision of this Ordinance or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application.
APPROVED AND ADOPTED this 14th day of November 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 introduced at a regular meeting on the 14th day of November, 2023, and was finally passed and adopted not less than five days thereafter on the 14th day of November, 2023, by the following vote to wit:
AYES:
NOES:
ABSENT:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
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Ordinance No.___
_________________________________________
City Clerk
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EXHIBIT “A”
SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT
EXISTING
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Ordinance No.___
SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT
PROPOSED
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ATTACHMENT NO. 15
ORDINANCE NO.______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FONTANA APPROVING, PURSUANT TO THE POPLAR
SOUTH DISTRIBUTION CENTER PROJECT FINAL
ENVIRONMENTAL IMPACT REPORT (SCH #2022090611),
DEVELOPMENT AGREEMENT NO. 23-003 BETWEEN THE
CITY OF FONTANA AND LIT INDUSTRIAL LIMITED
PARTNERSHIP, WHICH PROVIDES A PUBLIC BENEFIT
FEE IN THE AMOUNT OF $2,084,901 DOLLARS
WHEREAS, the City Council ("City Council") of the City of Fontana ("City") is authorized by California Government Code sections 65864 et seq. and section 30-322 of the City's Development Code ("Development Code") to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and WHEREAS, City has found that development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and
WHEREAS, because of the logistics, magnitude of the expenditure, and considerable lead time required to plan and develop the Poplar South Distribution Center (“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 located at Catawba Avenue and Rose Avenue (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 three industrial buildings totaling approximately 490,565 square feet, including up to 10,000 square feet of office space, entailing front end investment in the planning, entitlement and 581
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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
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.), an Environmental Impact Report (EIR) has been prepared for the Citrus/Oleander Project; and
WHEREAS, on November 14, 2023, pursuant to the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”), and the State CEQA Guidelines (14 Cal. Code Regs. §§ 15000 et seq.) the City certified the Citrus/Oleander EIR (SCH #2022090611), and approved the Mitigation Monitoring and Reporting Program (MMRP); 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 November 14, 2023, the City Council introduced this Ordinance through a first reading of this Ordinance; 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;
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(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. Recitals. The City Council hereby incorporates by reference the Recitals set forth herein and adopts those Recitals as its own as though fully set forth in this Ordinance. Pursuant to California Government Code section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds that the Development Agreement is consistent with the General Plan because the Development Agreement will result in the development of the Property at the intensity and density allowed under the General Plan and with the restrictions and standards set forth in the City's Municipal Code.
SECTION 2. California Environmental Quality Act. As the decision-making body for the Development Agreement, the City Council has reviewed and considered the certified EIR, any oral or written comments received, and the administrative record prior to making any decision on the Development Agreement. Based on the substantial evidence set forth in the record, including but not limited to, the certified EIR, and all related information presented to the City Council, the Council finds that the Development Agreement does not necessitate any modifications to the certified EIR.
The Council further finds that no new or additional mitigation measures or alternatives are required, and that there is no substantial evidence in the administrative record supporting a fair argument that the Development Agreement may result in any significant environmental impacts beyond those analyzed in the certified EIR.
Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the Council finds that the preparation of a subsequent or supplemental EIR is not required for the Development Agreement.
SECTION 3. Findings of Public Health, Safety and Welfare. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety and welfare of the community because the Development Agreement will enable needed public improvements at the Property and the economic development of the Property will benefit the citizens of the City.
SECTION 4. Findings of Best Interest of City. 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. 583
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SECTION 5. Findings of Public Benefit. 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 facility 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.
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 6. Approval. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves Development Agreement No. 23-003, attached hereto as “Exhibit A” and incorporated by reference herein, between LIT Industrial Limited Partnership and the City of Fontana, a California municipal corporation.
SECTION 7. Certification. 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 8. Effective Date/Publication. 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 Fontana Herald News, a 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.
SECTION 9. Severability. If any provision of this Ordinance or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application.
APPROVED and ADOPTED this 14th day of November 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 584
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by the City Council and was introduced at a regular meeting on the 14th day of November 2023, and was finally passed and adopted not less than five days thereafter on the 12th day of December 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
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EXHIBIT "A"
DEVELOPMENT AGREEMENT
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7 RECORDING REQUESTED BY:
Order No:
WHEN RECORDED MAIL
DOCUMENT TO:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn.: City Clerk
Space Above This Line for Recorder's Use Only
Exempt from Recording Fees Pursuant
to Gov. Code §§ 27383, 6103
ROSE PROJECT
DEVELOPMENT AGREEMENT No. 22-003
BETWEEN
THE CITY OF FONTANA,
a California municipal corporation
and
LIT INDUSTRIAL LIMITED PARTNERSHIP
a Delaware Limited Partnership
Dated as of November 14, 2023 for reference purposes
587
8 RECORDING REQUESTED BY:
Order No:
WHEN RECORDED MAIL
DOCUMENT TO:
City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn.: City Clerk
Space Above This Line for Recorder's Use Only
Exempt from Recording Fees Pursuant
to Gov. Code §§ 27383, 6103
ROSE PROJECT
DEVELOPMENT AGREEMENT No. 22-003
BETWEEN
THE CITY OF FONTANA,
a California municipal corporation
and
LIT INDUSTRIAL LIMITED PARTNERSHIP
a Delaware Limited Partnership
Dated as of November 14, 2023 for reference purposes
588
9 589
10 ROSE AVENUE PROJECT DEVELOPMENT AGREEMENT
The ROSE AVENUE PROJECT DEVELOPMENT AGREEMENT ("Agreement") is entered into by the City of Fontana a California municipal corporation (hereinafter "City"), and LIT Industrial Limited Partnership, a Delaware limited partnership (hereinafter "Owner"). This Agreement is dated November 14, 2023 for reference purposes only; it will not become effective until the "Effective Date" (defined below). City and Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party."
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 that City enter into this Development Agreement with respect to that certain real property located on Rose Avenue in the City, consisting of 41 parcels identified as Assessor’s Parcel Numbers (APNs) 0237-171-01 through -19, 0237-172-01 through -12, -19, -22, -23, -26, -27, -28, and -30 through -33, 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 the City, including current and 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 has reviewed and considered the Environmental Impact Report and made findings concerning the mitigation measures and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and WHEREAS, Owner has filed an application for, and the City Council has approved, General Plan Amendment (GPA) No. 22-007, Specific Plan Amendment (SPA) No. 22-003, Design Plan Review (DRP) No. 22-040 and Tentative Parcel Map No. 20638; and WHEREAS, this Agreement and the Project are consistent with the City's Comprehensive General Plan and Specific Plan (as defined in Section 1 below), as amended; and WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
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11 WHEREAS, development of the Property in accordance with this Agreement and Development Plan (as defined in Section 1 below) will provide substantial benefits to City and will further important policies and goals of City;
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure the installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, Owner has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure the vesting of its legal rights to develop the Property in accordance with this Agreement and Development Plan (defined below).
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. DEFINITIONS AND EXHIBITS
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "City" means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.
1.1.3 "Owner" means LIT Industrial Limited Partnership, a Delaware limited partnership, and its successors in interest to all or any part of the Property.
1.1.4 "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 repair or reconstruction of any building, structure, improvement, or facility after the construction and completion thereof if undertaken during the Term of this Agreement.
1.1.5 "Development Agreement Policies" means those certain development agreement policies approve by City pursuant to Ordinance No. , adopted on as may be amended, as Resolution No. , adopted on , as may be amended.
1.1.6 "Development Approvals" means all permits and other entitlements subject to approval or issuance by City in connection with the Development 591
12 of the Property as set forth in attached Exhibit C, including, but not limited to: general plan amendments; specific plans and specific plan amendments; tentative and final subdivision and parcel maps; design review; conditional use permits; zoning; and grading and building permits.
1.1.7 "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, including those imposed in accordance with the MMRP.
1.1.8 "Development Impact Fee" means a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by City to the applicant in connection with the approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park “in lieu” fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article
2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code)..
1.1.9 "Development Plan" means the development of the Property permitted by the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.
1.1.10 "Effective Date" means the date the ordinance approving this Agreement becomes effective.
1.1.11 "Existing Development Approvals" means all Development Approvals approved or issued prior to, or as of, the Effective Date. Existing Development Approvals includes the Development Approvals described on the attached Exhibit C and all other Development Approvals which are a matter of public record on the Effective Date.
The Existing Development Approvals are sufficient in order to develop the Property and to implement the Project.
1.1.12 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective Date.
1.1.13 "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, 592
13 subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the Development of the Property. "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation, or official policy governing: the conduct of businesses, professions, and occupations; taxes and assessments; the control and abatement of nuisances; the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or the exercise of the power of eminent domain.
1.1.14 "Mitigation Monitoring and Reporting Program" or "MMRP" means the mitigation monitoring and reporting program for assessing and ensuring compliance with required environmental impact mitigation measures approved by City Council Resolution No. _________ ___________, 2023 in conjunction with the City Council's certification of the EIR.
1.1.15 "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 in interest to all or any part of the Property.
1.1.16 "Parcel Map" means the subdivision map identified in City records as Tentative Parcel Map No. 20638 and approved by the City Council on ____________, 2023.
1.1.17 "Project" means the Development of the Property contemplated by the Development Plan, as such Development Plan may be further defined, enhanced, or modified pursuant to the provisions of this Agreement. The Project will consist of a logistics facility totaling approximately 490,565 square feet.
1.1.18 "Property" means the certain real property located on Rose Avenue in the City, consisting of 41 parcels identified as Assessor’s Parcel Numbers (APNs) 0237-171-01 through -19, 0237-172-01 through -12, -19, -22, -23, -26, -27, -28, and -30 through -33, as more particularly described in Exhibit A and shown on Exhibit B to this Agreement.
1.1.19 "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.
1.1.20 "Specific Plan" means the "Southwest Industrial Park Specific Plan (SWIP)" identified in City records as SP No. 09-02 and adopted by City Council Ordinance No. 1663 on June 12, 2012.
1.1.21 "Subdivision Map Act" means Government Code Sections 66410, et seq.
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14 1.1.22 "Subsequent Development Approvals" means all Development Approvals required subsequent to the Effective Date in connection with the Development of the Property.
1.1.23 "Subsequent Land Use Regulations" means any Land Use Regulations adopted and effective after the Effective Date.
1.1.24 "Term" has the meaning given in Section 2.3 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
Exhibit C – Existing Development Approvals
2. GENERAL PROVISIONS
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. The Development of the Property is hereby authorized and shall be carried out only in accordance with the provisions of this Agreement.
2.2 Property Ownership and Interest. The Owner represents and covenants that it is the legal or equitable owner of the fee simple title to the Property.
2.3 Term. The 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.
2.4 Sale or Assignment.
2.4.1 Right to Assign. Subject to the City's written consent, which shall not be unreasonable withheld, delayed or conditioned, 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) to any person, partnership, joint venture, affiliate, firm, or corporation at any time; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer, or assignment, or within fifteen (15) business days thereafter, Owner shall notify City, in writing, of such sale, transfer, or assignment and shall provide City with an executed agreement, in a form reasonably acceptable to 594
15 City, executed by the purchaser, transferee, or assignee and providing therein that the purchaser, transferee, or assignee expressly and unconditionally assumes all the duties and obligations of Owner under this Agreement.
Any sale, transfer or assignment not made in 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 this 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. Notwithstanding the foregoing, Owner shall have the right to transfer its interest in this Agreement to an “Owner Affiliate”. Notwithstanding the foregoing, Owner shall have the right to transfer its interest in this Agreement to an “Owner Affiliate.” An “Owner Affiliate” is an entity in which the original owner owns a majority financial or voting interest. Owner shall provide written notification to City concurrently with the completion of such a transfer.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, Owner shall continue to be obligated under this Agreement as to that portion of the Property sold, transferred or assigned, unless Owner is given a release in writing by City, which release shall be provided by City upon the full satisfaction by Owner of all of the following conditions:
(a) Owner no longer has a legal or equitable interest in all or any part of the Property sold.
(b) Owner is not then in default under this Agreement.
(c) Owner has provided City with the notice and executed agreement required under paragraph (2) of subsection 2.4 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.
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16 2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user.
Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.
2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and the Development Agreement Policies. This provision shall not limit any remedy of City or Owner for a party's breach of the Agreement as provided by this Agreement.
2.6 Termination. This Agreement shall terminate and be of no further effect upon the occurrence of any of the following events:
2.6.1 Expiration of the stated term of this agreement as set forth herein.
2.6.2 Entry of a final judgment setting aside, voiding, or annulling the adoption of the ordinance approving this Agreement.
2.6.3 The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
2.6.4 The completion of the Project in accordance with the terms of this Agreement, including, without limitation, the issuance of all required occupancy permits and acceptance by City (or other applicable public agency) of any required public dedications.
2.6.5 Termination by the City upon a default by Owner, as provided in this Agreement.
2.6.6 Termination of this Agreement will not operate to automatically terminate any Development Approvals or 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 that has occurred prior to such termination, or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant 596
17 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.
2.6.7 Notwithstanding any provision herein to the contrary, subject to the provisions of Section 4.3.3, the obligation of Owner to pay the Public Benefit Fee as set forth in Section 4.3.1 shall survive the termination of this Agreement until all buildings have been constructed on the Property pursuant to the Development Plan or otherwise.
2.7 Notices.
2.7.1 As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder.
2.7.2 All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; (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, postage and postal charges prepaid, and addressed to the recipient named below; or (iii) by overnight courier, on the first (1st) business day after being delivered to a recognized overnight courier. 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
If to Owner:
LIT Industrial Limited Partnership
c/o Seefried Industrial Properties
2321 Rosecrans Ave. Suite 2220
El Segundo, CA 90245
Attn: Scott Irwin
Telephone: (310) 536-7900
with a copy to:
Best, Best & Krieger, LLP
2855 East Guasti Rd., Suite 400
Ontario, CA 91761
Attn: Fontana City Attorney
Telephone: (909) 989-8584
with a copy to:
Allen Matkins Leck Gamble
Mallory & Natsis LLP
2010 Main Street, Suite 800
Irvine, CA 92614
Attn: John C. Condas, Esq.
Telephone: (949) 553-1313
2.7.3 Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
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18 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 the 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. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to be a covenant to develop or construct the Project or any portion of the Project.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City shall exercise its reasonable 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 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. Because 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 City's and Owner's intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop the Property, or not, in such order and at such rate and at such times as Owner deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4.
3.4 Development Phasing Plan. The Development of the Property is subject to any timing and phasing requirements established by the Development Plan.
3.5 Changes and Amendments.
3.5.1 The parties acknowledge that refinement and further development of the Project may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. If in years one (1) through seven (7) during the Term of this Agreement, 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 598
19 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 an addendum to Exhibit C and may be further changed from time to time as provided in this Section 3.5.
If in years eight (8) through ten (10) during the Term of this Agreement, Owner finds that changes to the Existing Development Approvals are necessary or appropriate for the refinement and further development of the Project, Owner shall apply for a Subsequent Development Approval and City shall process and act on such application in accordance with the land use regulations existing at the time of such application. Notwithstanding any provision herein to the contrary, Owner shall pay any and all fees and Development Exaction in place following years one (1) through five (5) and shall be required to pay any and all fees and exactions adopted at the time of applications for permits and approvals related to the Development Plan, including any amendments thereto.
3.5.2 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; but instead will require only the approval of City's Director of Planning; provided the 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; or,(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code. (e) The provisions of this Agreement require a close degree of cooperation between the City and the Owner. It is anticipated due to the term of this Agreement that refinements to the Development Approvals may be appropriate with respect to the details of performance of the City and the Owner. To the extent allowable by law, the Owner shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement and exhibits thereto. When and if the Owner finds it necessary or appropriate to make changes, adjustments or clarifications, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (“Operating Memoranda”) approved by the Parties in writing, which reference this Section of the Agreement.
Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore, public notices and hearings shall not be required. The City Attorney shall be authorized, upon consultation with the Owner, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to the Agreement which requires compliance with the provisions of this Agreement pertaining to amendments. The authority to enter into such 599
20 Operating Memoranda is hereby delegated to the City Manager, and the City Manager is hereby authorized to execute any Operating Memoranda hereunder without Planning Commission or City Council action and without public hearing. Although other matters may also fall within the scope of Operating Memoranda, any amendment to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the reservation or dedication of land, grant of easement, or the conditions, terms, restrictions and requirements relating to Subsequent Development Approvals of City, revisions to Public Benefits (other than to the time for performance of such Public Benefits) or monetary exactions of Owner, shall be considered an “Operating Memorandum”.
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 and fees and expenses shall apply to the Development of the Property (collectively, the "Reservations of Authority"):
(a) Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure.
(c) Regulations governing construction standards and specifications, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code.
(d) Regulations imposing Development Exactions; In years one (1) through five (5) during Term of this Agreement, no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the City or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction within the aforementioned timeframe 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 that may be in conflict with the Development Plan but that are reasonably necessary to eliminate or mitigate a serious threat to 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 that are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development 600
21 of the Property, or which shall increase the cost of development of the Project, shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the property during years one (1) through five (5) of the Term of this Agreement.
3.6.2 Subsequent Development Approvals. This Agreement shall not prevent City, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or on the basis of any Subsequent Land Use Regulation which does not conflict with the Development Plan. Upon approval of any Subsequent Development Approval, such Subsequent Development Approval shall be deemed vested pursuant to the provisions of this Agreement, without any further action by City or Owner being required.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
3.6.4 Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited.
3.7 Public Works. Owner shall construct all public improvements related to the Project in accordance with City's or other applicable public agency's then applicable public works engineering standards.
3.8 Provision of Real Property Interests by City. In any instance where Owner is required to construct any public improvement on land not owned by Owner, Owner shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements. In the event Owner is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by Owner and upon Owner’s provision of adequate security for costs City may reasonably incur, City shall negotiate the purchase of the necessary real property interests to allow Owner to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. Owner shall pay all costs associated with such acquisition or condemnation proceedings. This section 3.8 is not intended by the parties to impose upon the Owner an enforceable duty to acquire land or construct any public improvements on land not owned by Owner, except to the extent that the Owner elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the City upon the development of the Project under the Subdivision Map Act or other legal authority. 601
22 3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies.
3.10 Tentative Tract Map And Other Development Approval Extensions. Pursuant to the provisions of Section 66452.6 of the Government Code and relevant portions of the Fontana Municipal Code, all tentative subdivision maps or tentative parcel maps and all other Development Approvals approved in connection with development of the Project, shall automatically be granted extensions of time, for a seven (7) year lifespan.
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 the Development of the Property will result in substantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on Owner which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on Owner by providing more fully for the satisfaction of the public needs resulting from the Project.
4.2 Development Impact Fees.
4.2.1 Amount and Components of Fee. The amount of the public facilities and services mitigation fees may be periodically adjusted by the City.
4.2.2 Time of Payment. The fees required pursuant to this section 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.
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23 4.3 Public Benefit Fee.
4.3.1 As consideration for City's approval and performance of its obligations as set forth in this Agreement, Owner agrees to pay to the City a one-time public benefit fee in the amount of Four Dollars and Twenty five Cents ($4.25) per building square foot, which is estimated to be Two Million Eighty Four Thousand Nine Hundred One Dollars ($2,084,901) ("Public Benefit Fee"). Payment of the Public Benefit Fee shall be in addition to any other customary fees or charges to which the Project would otherwise be subject (e.g., development impact fees and application fees). The actual amount of the Public Benefit Fee shall be set, based upon the actual building square footage, prior to the issuance of any certificate of occupancy for the Project, and Owner shall pay the Public Benefit Fee to the City prior to the issuance of any certificate of occupancy for the Project.
4.3.2 The City has sole discretion to determine the uses for the Public Benefit Fee. The City has not designated a specific project or purpose for the Public Benefit Fee. Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement, and that Owner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreement to protest or challenge the payment of the Public Benefit Fee on any ground whatsoever, including without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Constitution, California Constitution Article I Section 19, the Mitigation Fee Act (California Government Code Section 66000 et seq.), or otherwise.
4.3.3 Notwithstanding any provision herein to the contrary, the obligation of Owner to pay the Public Benefit Fee as set forth in Section 4.3.1 shall survive the termination of this Agreement until all buildings have been constructed on the Property pursuant to the Development Plan or otherwise. If the Public Benefit Fee has not been paid prior to the expiration of the Term, payment of the Public Benefit Fee shall be waived and shall no longer be due and payable if the City, after expiration of the Term, amends the Existing Land Use Regulations so that the Project, or other uses which previously were permitted under the Existing Land Use Regulations, no longer are legally permitted.
5. FINANCING OF PUBLIC IMPROVEMENTS.
If deemed appropriate, City and Owner will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public infrastructure facilities required as part of the Development Plan. City also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, Owner may be reimbursed to the extent that Owner spends funds or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring City or the City Council to form any such district or to issue and sell bonds.
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24 6. REVIEW FOR COMPLIANCE
6.1 Periodic Review. As required by California Government Code Section 65865.1, the Director of Planning will review this Agreement annually, on or before each 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 Director of Planning, within 30 days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of Owner's compliance with this Agreement at any time. The Director of Planning will conduct the special review.
6.2.1 During either an annual or special review. Owner will be required to demonstrate its good faith compliance with this Agreement. The burden of proof on this issue shall be on Owner.
6.2.2 Upon completion of an annual or special review, the Director of Planning will submit a report to the City Council setting forth the evidence concerning Owner's good faith compliance with this Agreement and his or her recommended finding on that issue.
6.2.3 If the City Council finds on the basis of substantial evidence that Owner has materially complied in good faith with the terms and conditions of this Agreement, then the review will be concluded.
6.2.4 If the City Council makes a preliminary finding that Owner has not materially complied in good faith with this Agreement, then, following notice and opportunity to cure as provided under Section 6.4, the City Council may modify or terminate this Agreement as provide in Section 6.4 and 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.
7. PROCEEDINGS FOR MODIFICATION OR TERMINATION.
7.1 Proceedings Upon Modification or Termination. If, upon a finding under Section
6.2, 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:
7.1.1 The time and place of the hearing;
7.1.2 A statement as to whether or not City proposes to terminate or to modify the Agreement; and
7.1.3 Such other information as is reasonably necessary to inform Owner of the nature of the proceeding.
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25 7.2 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, Owner shall be given an opportunity to be heard. Owner shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Owner. If the City Council finds, based upon substantial evidence, that Owner has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement and impose such conditions as are reasonably necessary to protect the interests of the City. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
7.3 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. Owner may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.
8. DEFAULT AND REMEDIES
8.1 Remedies in General. The parties agree that the City would not have entered into this Agreement if it were to be liable for damages under this Agreement, or with respect to this Agreement or the application itself.
8.1.1 In general, and subject to those procedural prerequisites required under the Development Agreement Policies or this Agreement, each of the parties may pursue any remedy at law or equity available for the breach 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 that arises out of this Agreement; or
(b) For the taking, impairment, or restriction of any right or interest conveyed, provided under or arising under 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. 605
26 8.2 Specific Performance.
8.2.1 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) Monetary damages are unavailable against City as provided in Section 8.1 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 time, Owner may be precluded from other options it may have had with regard to the Property or any portions thereof. Moreover, Owner has invested significant time and resources in the planning and processing of the Project. Owner will be investing even more time and resources in implementing the Project in reliance upon this Agreement and it is not possible to determine the sum of money that would adequately compensate Owner for such efforts.
8.3 Release. Except for non-damage remedies, including the remedy of specific performance as provided in Section 8.2, Owner, for itself, its successors and assignees, releases City, its officials, 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 upon Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any other liability or damage, whatsoever upon City because it entered into this Agreement or because of the terms of this Agreement.
8.4 City's Termination of Agreement or Exercise of Other Remedies Upon Owner's Default. City may terminate or modify this Agreement as to all or a portion of the Property upon Owner's failure to perform any material duty or obligation under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, City may modify or terminate 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, if Owner fails to cure the default within sixty (60) days after its receipt of the notice, or if the default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, and Owner fails to commence the actions necessary to cure the default within sixty (60) days and to diligently proceed to cure the default.
8.5 Owner's Termination of Agreement or Exercise of Other Remedies Upon City's Default. Owner may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement and only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, City has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to 606
27 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.
8.6 Informal Resolution. The parties recognize that good faith disagreements may arise between City and Owner during the administration and implementation of this Agreement.
The parties will meet and confer in a good-faith attempt to resolve any dispute and will consider alternative dispute resolution mechanisms.
9. THIRD PARTY LITIGATION
9.1 General Plan Litigation. City has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Owner has reviewed the General Plan and concurs with City’s determination.
City shall have no liability in damages under this Agreement for any failure of City to perform under this Agreement or the inability of Owner to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.
9.2 Third-Party Litigation Concerning Agreement. Owner shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless City, its agents, officers and employees from any claim, action or proceeding against City, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim, action or proceeding, or if City fails to cooperate in the defense, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless City. City may in its discretion participate in the defense of any such claim, action or proceeding. Anything in this Agreement to the contrary notwithstanding, the Term set forth in Section 4.3 of this Agreement and the expiration date of all Development Approvals will automatically be extended by the longer of (i) the number of days in the period commencing on the date of filing any legal action of the type described in this Section and ending on the date that the claim, action or proceeding is either settled or fully and finally resolved in City’s and Owner’s favor, as evidenced by the expiration of all appeal periods with no further appeal being filed or the issuance of a full, final and non-appealable judgment or decisions; or (ii) the number of days in the period commencing on the date that a referendum conceding the Development Approvals is timely qualified for the ballot and the date that a referendum is certified resulting in upholding and approving the Development Approvals.
City will execute, in recordable form, any instrument which Owner may reasonably require to evidence the extension.
9.3 Indemnity. In addition to the provisions of Section 9.2, 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 607
28 to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims and damages to the extent caused by the negligence or willful misconduct of City or its officers, agents, employees, contractors, subcontractors, and independent contractors. Owner shall defend, at its expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. City may in its discretion participate in the defense of any such legal action.
9.4 Environmental Assurances. Owner shall indemnify and hold City, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including attorneys' fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such action.
9.5 Reservation of Rights. With respect to Sections 9.2, 9.3 and 9.4 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 upon written request for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor. If City chooses to conduct its own defense, City’s separate counsel’s billing rates shall be identical to the rates City pays for its typical municipal litigation rates for legal challenges for the type being defended.
10. MORTGAGEE PROTECTIONS
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 608
29 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 Owner 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.
11. MISCELLANEOUS PROVISIONS
11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. Owner agrees that immediately following recordation of the grant deed by which the Owner acquires title, the Owner will immediately record this Development Agreement against the real property.
11.2 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.
11.3 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.
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30 11.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.
This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
11.5 Section Headings. All Section headings and subheadings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement.
11.6 Singular and Plural. As used herein, the singular of any word includes the plural.
11.7 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 Owner 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.
11.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.
11.9 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 thereafter.
11.10 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.
11.11 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 will be extended 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 due to a force majeure event for more than five (5) years.
11.12 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. 610
31 11.13 Successors in Interest. Except as specifically set forth in this Agreement, 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 the 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.
11.14 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.
11.15 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.
11.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture, or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property by the Owner of such property.
11.17 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.
11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.
11.19 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 611
32 upon such agent is not feasible, then in such event Owner may be personally served with such process out of this County and such service shall constitute valid service upon Owner. Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. Owner for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
11.20 Authority to Execute. The person or persons executing this Agreement on behalf of Owner warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership, or business entity and warrants and represents that he or she/they has/have the authority to bind Owner to the performance of its obligations hereunder.
[Signatures on following pages]
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33 SIGNATURE PAGE TO
DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF FONTANA
AND POPLAR SOUTH DC, LLC
City
CITY OF FONTANA,
a California municipal corporation
By:
Acquanetta Warren, Mayor
By:
Matthew Ballantyne, City Manager
LIT INDUSTRIAL LIMITED PARTNERSHIP,
a Delaware limited partnership
By: LIT Holdings, GP, LLC,
a Delaware limited liability company,
its general partner
By:
Name: Michael Marrone
Title: Senior Vice President
ATTEST:
By:
Germaine Key, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
Ruben Duran, City Attorney
613
34 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 of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
614
35 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 of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (Seal)
615
36 EXHIBIT A
TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND POPLAR SOUTH DC, LLC
Legal Description of the Property
Real property in the City of Fontana, County of San Bernardino, State of California, described as follows: TENTATIVE PARCEL MAP NO. 20638, BEING A DIVISION OF THEFOLLOWING:
TRACT 1: (APN 0237-171-04-0-000)
LOT 16, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, INCLUSIVE, RECORDS OF SAIDCOUNTY.
TRACT 2: (APN 0237-171-03-0-000)
LOT 17 OF TRACT NO. 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OFSAID COUNTY.
TRACT 3: (APN 0237-171-02-0-000)
LOT 18 OF TRACT NO. 3074 IN THE UNINCORPORATED AREA, COMMONLY
KNOWN AS FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE14 OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY.
TRACT 4: (APN 0237-171-01-0-000)
LOT 19 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATEOF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE(S) 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 5: (APN 0237-171-05-0-000)
LOT 15, TRACT 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PERPLAT RECORDED IN BOOK 43 OF MAPS, PAGE 14, RECORDS OF SAID COUNTY.
TRACT 6: (APN 0237-171-06-0-000)
LOT 14 OF TRACT NO. 3074, AS PER MAP RECORDED IN BOOK 43, PAGE 14 616
37 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 7: (APN 0237-171-07-0-000)
LOT 13 OF TRACT 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA AS PER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE 14, RECORDS OF SAIDCOUNTY.
TRACT 8: (APN 0237-171-08-0-000)
LOT 12, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43, PAGE(S) 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 9: (APN 0237-171-09-0-000)
LOT 11 OF TRACT 3074, AS PER MAP RECORDED IN BOOK 43, PAGE 14 OF MAPS, IN THE OFFICEOF THE SAN BERNARDINO COUNTY RECORDER.
TRACT 10: (APN 0237-171-10-0-000)
LOT 10, TRACT NO. 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PERPLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, RECORDS OF SAIDCOUNTY.
TRACT 11: (APN 0237-171-11-0-000)
LOT 9 OF TRACT 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, CALIFORNIA ASPER MAP RECORDED IN BOOK 43, PAGE(S) 14, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 12: (APN 0237-171-12-0-000)
LOT 8 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATEOF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE(S) 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAN BERNARDINO COUNTY.
TRACT 13: (APN 0237-171-13-0-000)
LOT 7, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, OF MISCELLANEOUS MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 14: (APN 0237-171-14-0-000)
LOT 6, TRACT NO. 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PERPLAT RECORDED IN BOOK 43 OF MAPS, PAGE 14, RECORDS 617
38 OF SAID COUNTY.
TRACT 15: (APN 0237-171-15-0-000)
LOT 5, TRACT NO. 3074, AS PER PLAT RECORDED IN BOOK 43, OF MAPS PAGE 14, IN THE OFFICEOF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 16: (APN 0237-171-16-0-000)
LOT 4 OF TRACT 3074 AS SHOWN ON A MAP THEREOF RECORDED IN BOOK 43, PAGE(S) 44 OF MISCELLANEOUS MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAIDCOUNTY.
TRACT 17: (APN 0237-171-17-0-000)
LOT 1, TRACT NO. 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PERPLAT RECORDED IN BOOK 43 OF MAPS, PAGE 14, RECORDS OF SAID COUNTY.
TRACT 18: (APN 0237-171-18-0-000)
LOT 2, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, INCLUSIVE, RECORDS OF SAIDCOUNTY.
TRACT 19: (APN 0237-171-19-0-000)
LOT 3 OF TRACT 3074, AS PER MAP RECORDED IN BOOK 43, PAGE 14 OF MAPS, IN THE OFFICEOF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 20: (APN 0237-172-05-0-000)
LOT 20 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF
SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 43, PAGE(S) 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 21: (APN 0237-172-04-0-000)
LOT 21 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATEOF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 43, PAGE 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 22: (APN 0237-172-03-0-000)
LOT 22, TRACT 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE(S) 14, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OFSAID COUNTY.
618
39 TRACT 23: (APN 0237-172-02-0-000)
LOT 23, TRACT 3074, COUNTY OF SAN BERNARDINO, STATE OF
CALIFORNIA, AS PER PLATRECORDED IN BOOK 43 OF MAPS, PAGE 14, RECORDS OF SAID COUNTY.
TRACT 24: (APN 0237-172-01-0-000)
LOT 24, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, INCLUSIVE, RECORDS OF SAIDCOUNTY.
TRACT 25: (APNS 0237-172-06-0-000 AND0237-172-07-0-000) LOT 25 AND 26 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO,STATE OF CALIFORNIA, AS PER MAP, RECORDED IN BOOK 43, PAGE 14 OF MAPS IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 26: (APN 0237-172-08-0-000)
LOT 27, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, INCLUSIVE, RECORDS OF SAIDCOUNTY.
TRACT 27: (APN 0237-172-09-0-000)
LOT 28, TRACT NO. 3074, AS PER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE 14, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 28: (APN 0237-172-10-0-000)
LOT 29 OF TRACT NO. 3074, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 43, PAGE 14 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 29: (APN 0237-172-11-0-000)
LOT 30, TRACT NUMBER 3074, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ASPER PLAT RECORDED IN BOOK 43 OF MAPS, PAGE(S) 14, INCLUSIVE, RECORDS OF SAIDCOUNTY.
TRACT 30: (APN 0237-172-12)
THE WEST 75 FEET OF THE SOUTH 340 FEET OF THE EAST ONE-HALF OF THE FARM LOT 863, ACCORDING TO THE MAP SHOWING SUBDIVISION OF
LANDS BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, IN THE
COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 11 OF MAPS, PAGE 12, IN THE OFFICE OF COUNTY 619
40 RECORDER OF SAIDCOUNTY.
TRACT 31: (APN 0237-172-32-0-000)
PARCEL NO. 1:
THE WEST 1/2 OF THE EAST 150 FEET OF THE WEST 225 FEET OF THE SOUTH 340 FEET OF THE EAST 1/2 OF LOT 863, ACCORDING TO MAP SHOWING
SUBDIVISION OF LAND BELONGING TO SEMI-TROPIC LAND AND WATER COMPANY, AS PER MAP RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.
PARCEL NO. 2:
AN EASEMENT FOR INGRESS AND EGRESS OVER THE WESTERLY 10 FEET OF THE EAST 1/2 OF THE EAST 150 FEET OF THE WEST 225 FEET OF THE SOUTH 340 FEET OF THE EAST 1/2 OF LOT 863, ACCORDING TO MAP SHOWING
SUBDIVISION OF LAND BELONGING TO SEMI-TROPIC LAND AND WATER COMPANY, AS PER MAP RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.
TRACT 32: (APN 0237-172-33-0-000)
THE EAST 75.00 FEET OF THE WEST 225 FEET OF THE SOUTH 340.00 FEET TO THE EAST HALF OFLOT 863, ACCORDING TO THE MAP SHOWING
SUBDIVISION OF LAND BELONGING TO SEMI TROPIC LAND AND WATER COMPANY, AS PER MAY RECORDED IN BOOK 11, PAGE 12, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 33: (APN 0237-172-26-0-000)
THE EAST 75 FEET OF THE WEST 300 FEET OF THE SOUTH 340 FEET OF THE EAST 1/2 OF FARM LOT 863, ACCORDING TO MAP SHOWING SUBDIVISION OF
LANDS BELONGING TO SEMI-TROPIC LAND AND WATER COMPANY, AS PER PLAT RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.
AREA AND DISTANCES OF THE ABOVE DESCRIBED PROPERTY
COMPUTED TO STREETCENTERS. TRACT 34: (APN 0237-172-27-0-000) THE EAST 75 FEET OF THE WEST 375 FEET OF THE SOUTH 340 FEET OF THE EAST 1/2 OF FARM LOT 863 ACCORDING TO MAP SHOWING SUBDIVISION
OF LANDS BELONGING TO SEMI-TROPIC LAND AND WATER COMPANY IN THE
CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.
TRACT 35: (APN 0237-172-19-0-000)
THE WEST 75 FEET OF THE EAST 285 FEET OF THE SOUTH 340 FEET OF THE 620
41 FARM LOT 863, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO,
STATE OF CALIFORNIA, ACCORDING TO MAP SHOWING SUBDIVISION OF LAND
BELONGINGS TO SEMI-TROPIC LAND AND WATER COMPANY AS PER MAP RECORDED IN BOOK 11, PAGE 12 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
TRACT 36: (APN 0237-172-23-0-000)
THE SOUTH 340 FEET OF THE EAST 1/2 OF LOT 863, ACCORDING TO THE
MAP SHOWN IN SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC
LAND AND WATER COMPANY, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11 PAGE12, OF MAPS, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE WEST 450 FEET THEREOF.
ALSO EXCEPTING THEREFROM THE SOUTH 260 FEET THEREOF.
AREA AND DISTANCES ARE COMPUTED TO STREET CENTERS
AS SHOWN ON SAID MAP. TRACT 37: (APN 0237-172-30-0-000) PARCEL 1:
THE NORTH 65 FEET OF THE SOUTH 260 FEET OF THE EAST 1/2 OF FARM LOT 863, ACCORDINGTO MAP SHOWING SUBDIVISION OF LANDS BELONGING
TO THE SEMI-TROPIC LAND AND WATER COMPANY, AS PER MAP RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAIDCOUNTY.
EXCEPT THE WEST 450 FEET THEREOF.
AREAS AND DISTANCES COMPUTED TO STREET CENTERS AS
SHOWN ON SAID MAP. PARCEL 2:
A RIGHT OF WAY FOR INGRESS AND EGRESS OVER AND ACROSS THE NORTH 6 FEET OF THE EAST125 FEET OF THE SOUTH 195 FEET OF SAID LOT 863.
TRACT 38: (APN 0237-172-31-0-000)
THE NORTH 65 FEET OF THE SOUTH 195 FEET OF THE EAST 1/2 OF FARM LOT 863, ACCORDING TO MAP SHOWING SUBDIVISION OF LANDS BELONGING
TO THE SEMI-TROPIC LAND AND WATER COMPANY, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP RECORDED IN BOOK 11, PAGE 12, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.
EXCEPTING THEREFROM, THE WEST 450 FEET THEREOF.
AREAS AND DISTANCES COMPUTED TO STREET CENTERS AS
SHOWN ON SAID MAP. TRACT 39: (APN 0237-172-28-0-000)
THE SOUTH 65 FEET OF THE NORTH 195 FEET OF THE SOUTH 260 FEET OF 621
42 THE EAST HALF OF FARM LOT 863, IN THE CITY OF FONTANA, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO MAP SHOWING
SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, AS PER MAP RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE WEST 150 FEET THEREOF, AREAS AND DISTANCES COMPUTEDTO STREET CENTERS.
TRACT 40: (APN 0237-172-22-0-000)
THE SOUTH 65 FEET OF THE EAST 1/2 OF FARM LOT 863, ACCORDING TO
MAP SHOWING SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC LAND
AND WATER COMPANY, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 11 OFMAPS, PAGE(S) 12, RECORDS OF SAID COUNTY.
EXCEPTING THEREFROM THE WEST 450 FEET THEREOF.
NOTE: AREA AND DISTANCES COMPUTED TO STREET CENTERS.
APN: 0237-171-01, 0-000, 0237-171-02-0-000, 0237-171-03-0-000, 0237-171-04-0- 000, 0237-171-05-0-000, 0237-171-06-0-000, 0237-171-07-0-000, 0237-171-08-0-000, 0237- 171-09-0-000, 0237-171-10-0-000, 0237-171-11-0-000, 0237-171-12-0-000, 0237-171-13-0- 000, 0237-171-14-0-000, 0237-171-15-0-000, 0237-171-16-0-000, 0237-171-17-0-000, 0237- 171-18-0-000, 0237-171-19-0-000, 0237-172-01-0-000, 0237-172-02-0-000, 0237-172-03-0- 000, 0237-172-04-0-000, 0237-172-05-0-000, 0237-172-06-0-000, 0237-172-07-0-000, 0237- 172-08-0-000, 0237-172-09-0-000, 0237-172-10-0-000, 0237-172-11-0-000, 0237-172-12-0- 000, 0237-172-19-0-000, 0237-172-22-0-000, 0237-172-23-0-000, 0237-172-26-0-000, 0237- 172-27-0-000, 0237-172-28-0-000, 0237-172-30-0-000, 0237-172-31-0-000, 0237-172-32-0- 000 and 0237-172-33-0-000 (Referenced for informational purposesonly) 622
43 EXHIBIT B
TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND POPLAR SOUTH DC, LLC
EXHIBIT B – Map Showing Property and its location:
623
44 624
EXHIBIT C
TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND POPLAR SOUTH DC, LLC
Existing Development Approval
625
46 626
47 627
48 628
49 629
50 630
51 631
City of Fontana
Action Report
Planning Commission
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
FROM:
Planning Department
TITLE:
Master Case No. 22-079: General Plan Amendment (GPA) No. 22-007, Specific Plan Amendment (SPA) No. 22-003, Development Agreement (AGR) No. 22-003, Tentative Parcel Map (TPM No. 20638) No. 22-016, Design Review (DRP) No. 22-040, and Final Environmental Impact Report for the development of an industrial commerce building totaling approximately 490,565 square feet within a project site comprised of approximately 18.8 acres.
RECOMMENDATION:
Based on the information contained in this staff report, staff recommends that the Planning Commission adopt Resolution No. PC 2023-_____, and forward a recommendation to the City Council to:
1. Adopt a resolution to certify the EIR, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and direct staff to file a Notice of Determination; and,
2. Adopt a resolution approving General Plan Amendment (GPA) No. 22-007; and,
3. Adopt an ordinance approving Specific Plan Amendment (SPA) No. 22-003; and,
4. Adopt an ordinance approving Development Agreement (AGR) No. 22-003; and,
5. Adopt a resolution approving Tentative Parcel Map No. 22-016 (TPM No. 20638) and Design Review No. 22-040 subject to the attached Findings and Conditions of Approval.
APPLICANT:
Seefried Industrial Properties, INC
2321 Rosecrans Ave, Suite No. 2220
El Segundo, CA 90245
LOCATION:
The project site includes property located to the east side of Poplar Avenue, west of Catawba Avenue and on properties along Rose Avenue (APNs) 0237-171-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237-172-01, -02, -03, -04, -05, -06, -07, -08, -09, -10, - 11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, and 33.
REQUEST:
1. General Plan Amendment (GPA) No. 22-007 - a request to amend Exhibit 15.8 of the General Plan for an 18.8-acre site from Residential Trucking (R-T) to General Industrial (I-G).
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
2. Specific Plan Amendment (SPA) No. 22-003 - a request to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to remove the entire 18.8-acre site from the Residential Trucking District (RTD) and include it in the Slover East Industrial District (SED).
3. Development Agreement (AGR) No. 22-003 - an agreement to include the payment of a public benefit fee.
4. Tentative Parcel Map No. 22-016 (TPM No. 20638) - a request to consolidate forty-one (41) parcels comprised of approximately 18.8 acres into one parcel for the development of the project.
5. Design Review (DRP) No. 22-040 - a request for review of the architecture, site design and associated improvements for an industrial commerce center building totaling 490,565 square feet on a site comprised of approximately 18.8 acres.
PROJECT PLANNER:
Alejandro Rico, Associate Planner
BACKGROUND INFORMATION:
A. Existing Land Use Designation:
General Plan Zoning Existing Land Use
Site: Residential Trucking (R
-T)
Southwest Industrial
Park Specific Plan -
Residential Trucking
District (RTD)
Vacant and
existing singlefamily residential
North: General Industrial (I-G) Southwest Industrial
Park Specific Plan -
Slover East Industrial
District (SED)
Industrial
commerce
buildings
South: General Industrial (I-G) Southwest Industrial
Park Specific Plan -
Slover East Industrial
District (SED)
Industrial
commerce
buildings
West: General Industrial (I-G) Southwest Industrial
Park Specific Plan -
Slover East Industrial
District (SED)
Manheim vehicle
storage
PROJECT DESCRIPTION:
A. Project Site Area: Approximately 18.8 acres.
B. Lot Coverage:
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
Building Allowed: 63% Percent
Provided: 60% Percent
C. Building/Unit Analysis - Industrial Commerce Building :
Building: Office Area: Approximately 10,000 square feet Commerce Area: Approximately 480,565 square feet
D. Parking Analysis: Required: 158 Spaces
Provided: 210 Spaces
E. Landscaping: Building Required: 15 Percent
Provided: 18 Percent
ANALYSIS:
The applicant is requesting approval of General Plan Amendment (GPA) No. 22-007, Specific Plan Amendment (SPA) No. 22-003, Tentative Parcel Map (TPM) No. 22-016, Development Agreement (AGR) No. 22-003 and Design Review (DRP) No. 22-040. The project includes amendment of Chapter 15, Exhibit 15.8, of the General Plan to change the General Plan land use designation from Residential Trucking (RT) to General Industrial (I
‐
G), revision of the Southwest Industrial Park
Specific Plan land use designation of the project site from Residential Trucking District (RTD) to Slover East Industrial District (SED), consolidation of 41 parcels into one parcel, and a request for development of an industrial commerce center building of approximately 490,565 square feet, all on approximately 18.8 acres. The applicant has also prepared a development agreement for consideration that includes a public benefit fee.
General Plan Amendment (GPA) No. 22-007
The current general plan land use designation for the project site is Residential Trucking (R-T) which does not allow for industrial commerce center uses. Therefore, the applicant has applied for a General Plan Amendment to amend Exhibit 15.8 (General Plan Land Use Map) as part of Chapter 15 of the General Plan and change the General Plan land use designation of the 18.8-acre site from Residential Trucking (R-T) to General Industrial (I-G) as shown in Attachment No. 4.
The proposed project is consistent with the goals and policies of the General Plan and Housing Element, as described below:
Chapter 13, Goal No. 1, Action A: Establish a balance of industrial and manufacturing development along with services, especially in sectors with living wage jobs. The developer is proposing to construct an industrial commerce building which will require construction labor. Labor leaders have emphasized that construction jobs have supported families. The operations of the commerce building will require employees for day-to-day operations which will in turn provide jobs for local communities in the long term.
Chapter 15, Goal 1, Action A: Warehousing, trucking, manufacturing, and support industries are focused especially along regional transportation routes. Some of these areas need upgrades in order to increase or maintain competitiveness. The project will include off-site improvements to Poplar Avenue and Catawba Avenue and enhance streets. Santa Ana Avenue and Jurupa Avenue are two truck routes that are located in close proximity to the site and will be accessed from Poplar Avenue City of Fontana Page 3 of 7 Printed on 10/11/2023
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
truck routes that are located in close proximity to the site and will be accessed from Poplar Avenue and Catawba Avenue.
Specific Plan Amendment (SPA) No. 22-003
The proposed Specific Plan Amendment would amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan (Attachment No. 5) to redesignate the property from Residential Trucking (RTD) to the Slover East Industrial District (SED) land use district.
Development Agreement (AGR) No. 22-003
The application includes a review of development agreement for the provision of a public benefit fee of $2,084,901.
Tentative Parcel Map No. 22-016 (TPM No. 20638)
The applicant has filed for a Tentative Parcel Map to support a proposed development of 18.8 acres and consolidation of forty-one (41) parcels into one parcel for the development of an industrial commerce building. The project is located to the east of Poplar Avenue, west of Catawba Avenue and north and south of Rose Avenue. As part of the project the developer will construct all on-site and offsite improvements per the City Standards. Rose Avenue will be vacated between Poplar Avenue and Catawba Avenue as this street area will be used for the industrial commerce building. Vehicular access to the site will come from four (4) entries from Catawba Avenue and Poplar Avenue.
Design Review (DRP) No. 22-040
The project includes the development of an industrial commerce center building. The industrial commerce center building has been designed with a combination of office and industrial areas and will contain approximately 490,565 square feet of floor area. The developer will construct the necessary on-site and off-site improvements required by city standards. A gate-secured truck court with 42 loading docks is proposed on the south side of the building. The building’s tower entries, glass features, painted bands, articulated window framing with glazing provide structural and visual interest. The applicant has incorporated a variety of architectural features on all sides of the building to meet or exceed the design guidelines of the Southwest Industrial Park Specific Plan, Slover East Industrial District design guidelines.
The project site is physically suitable in size and shape to support the development of the proposed industrial commerce building. The applicable building codes, zoning codes, and fire codes and standards will be incorporated and will make for a safe, attractive, and well-designed project. As proposed, the project site is consistent with the standards of the Southwest Industrial Park Specific Plan, Slover East Industrial District. The proposal has been designed to be compatible with the industrial uses of nearby, while also providing a development that has been designed with features (architectural relief, added landscaping along the north side of the property, street improvements, and lighting), to enhance the character of the area. The project meets all the requirements of the recently adopted Industrial Commerce Centers Sustainability Standards Ordinance.
Circulation/Grading
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
Trucks will have access from the southern driveways on Poplar Avenue and Catawba Avenue and regular vehicles will have access from separate driveways on the northern portion of the site. The proposed landscaping would be ornamental in nature and would feature trees, shrubs, and droughttolerant accent plants in addition to a variety of groundcover. The area surrounding the building will drain to the west with the use of underground chambers towards Poplar Avenue. Trucks will be traveling south and north from Santa Ana Avenue and Jurupa Avenue to and from the project site to access the 10 freeway.
Walls
The project site will have an eight-foot-high sliding gate for the loading areas and a 14-foot-high screen wall surrounding the loading areas. The project includes multiple retaining walls on the south and west side of the building.
SB330
As currently zoned, this property would have allowed for the development of thirty-eight (38) residential units. To comply with California’s Housing Crisis Act of 2019 (SB 330), the project will participate with the City of Fontana Municipal Code Chapter 30 Article XV “No Net Loss Density Bonus/Replacement Program.” The 38 units will be available as density bonuses for other residential properties throughout the city. The program will enable, on a first come, first served basis, density bonuses of up to 20% on other residential parcels until the 38 residential units are reclaimed within future planned residential projects.
Pursuant to FMC section 30-967, the Unit Bank cannot exceed 2,200 units. The Unit Bank currently has 1,280 units. These 38 units will be added to the Unit Bank increasing the number of units in the Unit Bank to 1,318, which is less than the 2,200 units authorized by the FMC.
Environmental
Technical Studies
Subsequent to the preparation and distribution of the Notice of Preparation (NOP), the Draft Environmental Impact Report (DEIR) was prepared for the project. The environmental analysis contained in the Draft EIR is based in part on specific studies and assessments undertaken for the City by qualified environmental scientists, specialists, and consultants. This analysis addresses aesthetics, agriculture and forestry resources, air quality, biological resources, cultural resources, energy, geology and soils, greenhouse gas emissions, hazards and hazardous materials, hydrology and water quality, land use and planning, mineral resources, noise, population and housing, public services, recreation, transportation, tribal cultural resources, utilities and services systems, and wildfire. These technical studies are contained in the Technical Appendices document of the Draft EIR and are made available for the public review. The Draft and Final EIR and Technical Appendices can be viewed at the following URL: <<https://www.fontanaca.gov/2137/Environmental-Documents> >.
The Final EIR describes the environmental impacts of the project and the mitigation measures to help minimize the project impacts on the environment. The scope of this Final EIR includes analysis of City of Fontana Page 5 of 7 Printed on 10/11/2023
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
minimize the project impacts on the environment. The scope of this Final EIR includes analysis of environmental issues identified and raised in response to the Notice of Preparation (IS/NOP) and during the DEIR comment period.
The Final EIR determined that seventeen (17) categories of environmental effects for the project would have impacts found not to be significant. These categories are Aesthetics, Agriculture and Forestry, Air Quality, Biological Resources, Cultural Resources, Energy, Geology and Soils, Hazards and Hazardous Materials, Hydrology and Water Quality, Greenhouse Gas Emissions, Land Use and Planning, Mineral Resources, Noise, Population and Housing, Public Services, Recreation, Tribal Cultural Resources, Transportation, Utilities and Services Systems, and Wildfire. The potential impacts from the aforementioned topical areas are fully addressed in the DEIR and can be brought to a level of less than significant with mitigations.
The analysis in the Final EIR and supporting studies found that, even with incorporation of proposed mitigation measures, impacts to Air Quality would remain significant and unavoidable. As a result of the proposed project having an impact that is significant and unavoidable, adoption of a Statement of Overriding Consideration (SOC) by the City Council is required.
Alternatives
As required by CEQA, an EIR shall describe a range of reasonable alternatives to the project which meets the basic objectives of the project but would avoid or substantially lessen any of the significant effects of the project and evaluate the comparative merits of the alternatives. The proposed alternatives for this project include “No Project” and “Reduced Project.” Circulation
The project Draft EIR (DEIR) was circulated for the 45-day public review period beginning on July 14, 2023, and ending on August 28, 2023. The document was submitted to the State Clearinghouse for notification to State agencies for their possible comment. The Planning Commission conducted a public hearing on the DEIR on August 15, 2023 to receive public comments. Prior to the end of the comment period of August 28, 2023, the City received comments on the DEIR from the following public agencies, organizations, and individuals:
Letter Date Received Organization/Name
1 SCAQMD August 18, 2023
2 Golden State Environmental
Justice Alliance
August 25, 2023
3 CARE CA August 28, 2023
4 CARB August 30, 2023
The City, along with the environmental consultant, has reviewed and provided responses to the letters/comments above; these are included in the Final EIR. The Final EIR along with errata has been included with the environmental documentation made available at the following link: < <https://www.fontanaca.gov/2137/Environmental-Documents>>. To approve the project, the City Council must adopt a Statement of Overriding Considerations indicating that the project benefits City of Fontana Page 6 of 7 Printed on 10/11/2023
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File #: 21-2518 Agenda Date: 10/17/2023
Agenda #: PH-B Category: Public Hearing
override or outweigh the project identified unavoidable environmental impacts.
MOTION:
Approve staff’s recommendation.
ATTACHMENTS:
1. Vicinity Map
2. Tentative Parcel Map No. 20638
3. Project Plans
4. Existing/Proposed General Plan Land Use Designation
5. Existing/Proposed Specific Plan
6. Planning Commission Resolution PC 2023-
7. Development Agreement
8. Notice of Determination
9. Public Hearing Notice
City of Fontana Page 7 of 7 Printed on 10/11/2023
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ATTACHMENT NO. 1
VICINITY MAP
DATE: October 17, 2023
CASE: Master Case No. 22-079: General Plan
Amendment No. 22-007, Specific Plan
Amendment No. 22-003, Development
Agreement No. 22-003, Tentative Parcel Map
(TPM No. 20638) No. 22-016, Design Review
No. 22-040
NORTH
CITY OF FONTANA PLANNING DEPARTMENT
Project Site
63960
ATTACHMENT NO. 2
TENTATIVE
PARCEL MAP
No. 20638
DATE: October 17, 2023
CASE: Master Case No. 22-079: General Plan
Amendment No. 22-007, Specific Plan
Amendment No. 22-003, Development
Agreement No. 22-003, Tentative Parcel Map
(TPM No. 20638) No. 22-016, Design Review
No. 22-040
NORTH
CITY OF FONTANA PLANNING DEPARTMENT
64061
EVCS
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VANPOOL EV EV EVCS EVCS EVCS EVCS LOADING LOADING LOADING T
WB-67 - Interstate Semi-Trailer WB-67 - Interstate Semi-Trailer WB-67 - Interstate Semi-Trailer
WB-67 - Interstate Semi-Trailer
WB-67 - Interstate Semi-Trailer
RGA
Office of Architectural Design
15231 Alton Parkway, Suite 100
Irvine, CA 92618
T 949-341-0920
FX 949-341-0922
POPLAR SOUTH DISTRIBUTION CENTER
FONTANA, CA SHEET TITLE
MARK DATE DESCRIPTION
A1-1P
COPYRIGHT: RGA, OFFICE OF ARCHITECTURAL DESIGN
CHK'D BY:
DRAWN BY:
CAD FILE NAME:
RGA PROJECT NO:
CS
CS
22016-00-A1-01
22016.00
SCHEMATIC SITE PLAN
SCALE: 1" = 50'-0"
Scott Irwin
Senior Vice President – Southern California
SEEFRIED INDUSTRIAL PROPERTIES, INC.
2301 Rosecrans Avenue, Suite 3165
El Segundo, CA 90245
Office: +1 310 536 7900
Cell: +1 562 484 8761
[email protected]
5/20/22 PLANNING SUBMITTAL
50' MIN.
9/2/22 2ND PLANNING SUBMITTAL
9/21/23 PC HEARING SET C A T A W B A A V E .
TYPE III-B
DRY STORAGE WAREHOUSE
40' CLR.
MAX. HT.: 50'
P O P L A R A V E .
0' 10' 20' 50' 100'
30'
34'
30'
44'
81.5' 392'-0" 185'
1,196'-0"
GENERAL PROJECT INFO:
ZONE:
SPECIFIC PLAN:
APN:
SOUTHWEST INDUSTRIAL PARK
SLOVER EAST INDUSTRIAL DISTRICT
PROJECT DATA:
NET SITE AREA:
FOOTPRINT AREA:
MEZZANINE AREA:
TOTAL FLOOR AREA:
OFFICE AREA:
WAREHOUSE AREA:
TOTAL:
BASE ALLOWABLE F.A.R.:
** DEVELOPMENT INCENTIVE FOR LEED CERTIFICATION
PROPOSED F.A.R.
AUTO PARKING REQUIRED
10,000 SF OFFICE (1/250 SF)
0 SF MANUFACTURING (1/600 SF)
480,550 SF WAREHOUSE
1 TO 20,000 SF (1/1,000 SF)
20K TO 40,000 SF (1/2,000 SF)
> 40,0000 SF (1/5,000 SF)
TOTAL REQUIRED:
AUTO PARKING PROVIDED
TRAILER PARKING REQUIRED - 1/5,000 SF
LANDSCAPE:
REQUIRED: 818,382 - 483,500 X 15%
PROVIDED:
819,701 SF / 18.82 AC
480,550 SF
10,000 SF
490,550 SF
10,000 SF
480,550 SF
490,550 SF
0.55 0.6325
0.60 40 STSALLS
0 STALLS
20 STALLS
10 STALLS
88 STALLS
158 STALLS
210 STALLS
98 98
50,232 SF
62,000 SF
VICINITY MAP:
PROJECT DESCRIPTION:
ONE NEW 490,550 SF SPECULATIVE WAREHOUSE BUILDING INTENDED FOR
HIGH CUBE STORAGE, INCLUDING DOCK HIGH LOADING FACILITIES, TRAILER PARKING, 210 AUTO PARKING STALLS, AND LANDSCAPE IMPROVEMENTS.
THE PROJECT WILL BE PURSUING LEED CERTIFICATION, AND PROPOSES TO
UTILIZE THE AVAILABLE INTENSITY BONUS RELATED TO THE GREEN BUILDING INCENTIVE IN TABLE 10-10 OF THE S.W.I.P. SPECIFIC PLAN.
CODE ANALYSIS:
CONSTRUCTION TYPE:
OCCUPANCY:
FIRE SPRINKLERS:
BUILDING HEIGHT:
MAX. ALLOWABLE:
PROPOSED:
STORIES:
MAX. ALLOWABLE:
PROPOSED:
ALLOWABLE AREA
III-B
S-1 PRIMARY OCC.
B / F-1 ACCESSORY
FULLY SPRINKLERED
75'
50'
3 2
UNLIMITED PER CBC 507
21 DOCK POSITIONS
77 TRAILER STALLS
8'H GATE
OFFICE OFFICE RAMP
20' 20'
490,550 SF
8 TRAILER
STALLS
RAMP
202 AUTO STALLS
TRASH
ENCLOSURE
PER CITY STD.
FIRE PUMP
ROOM - SCREEN
W/ LANDSCAPE
942'-8" - 6'H RETAINING WALL + 8'H SCREENWALL
(11) BIKE
RACKS
SEATING
AREA
SANTA ANA AVE.
JURUPA AVE.
POPLAR AVE.
CATAWBA AVE.
CITRUS AVE.
SITE
7' 19' 30' 19' 6.5'
56'
146' 153'
56'
8 AUTOS
35'35'
RIDGELINE - 46'-7" RIDGELINE - 46'-7"
9' TYP.
8'H GATE
14'DEDICATION
SETBACK
SETBACK
SETBACK
SETBACK
RAD.: 50'
RAD.: 50'
RAD.: 50'
RAD.: 50'
RAD.: 25'
RAD.: 25'
RAD.: 25'
RAD.: 25'
1. ANY EXISTING STRUCTURES ONSITE ARE TO BE DEMOLISHED.
2. ALL PROPOSED NEW ONSITE UTILITY SERVICES SHALL BE UNDERGROUND.
3. CONCRETE BANDS, 24" IN WIDTH, SHALL BE PROVIDED AT LANDSCAPE FINGERS.
4. DRIVEWAYS SHALL BE CONSTRUCTED PER CITY STANDARD PLANS.
5. STATE OF CALIFORNIA "GENERAL CONSTRUCTION NPDES PERMITS AND WDID NUMBERS MUST BE OBTAINED PRIOR TO PERMIT.
6. PARKING STALL DIMENSIONS: 9'W X 19'D - DOUBLE STRIPED PER CITY REQUIREMENTS. CLEAN AIR / CARPOOL PARKING SHALL BE PROVIDED PER CALGREEN REQUIREMENTS.
7. FIRE DEPT. APPROVED KNOX LOCKS SHALL BE PROVIDED AT ALL GATES.
8. FIRE DEPT. ACCESS SHALL BE PROVIDED PER STANDARDS:
ACCESS LANE WIDTH: 30'-0"
ACCESS LANE HEIGHT: 14'-6"
INSIDE TURN RADIUS: 19'-0"
GENERAL NOTES:
12' TYP.
8 TRAILER
STALLS
55' 60' 70'
5 TRAILER
STALLS
21 DOCK POSITIONS
13' TYP.
6" X 6" CONC. CURB
3" WIDE WHITE
TRAFFIC PAINT
STRIPING
24" WIDE STEP-OFF
CURB AT
LANDSCAPE
FINGERS / END
STALLS
9'-0" 9'-0" 9'-0"
AUTO PARKING DETAIL:
STANDARD
STALL
END
STALL
19'-0"
24" TYP.
EA. SIDE
9' TYP. 7'
PARKING
FINGER
14'H SCREENWALL
14'H SCREENWALL
14'H SCREENWALL 14'H SCREENWALL
STRIPED MEDIAN
STRIPED MEDIAN
50'
680' - NEW CMU PROPERTY LINE RET. WALL
6' MAX. HEIGHT
30" MAX. HT.
SPLITFACE CMU
RETAINING WALL
30" MAX. HT.
SPLITFACE CMU
RETAINING WALL
(E) 6'-8'H SCREENWALL ON ADJ. PROPERTY TO REMAIN (E) 6'-8'H SCREENWALL ON ADJ. PROPERTY TO REMAIN (E) 6'-8'H SCREENWALL ON ADJ. PROPERTY TO REMAIN 64162
RGA
Office of Architectural Design
15231 Alton Parkway, Suite 100
Irvine, CA 92618
T 949-341-0920
FX 949-341-0922
POPLAR SOUTH DISTRIBUTION CENTER
FONTANA, CA SHEET TITLE
MARK DATE DESCRIPTION
A2-1P
COPYRIGHT: RGA, OFFICE OF ARCHITECTURAL DESIGN
CHK'D BY:
DRAWN BY:
CAD FILE NAME:
RGA PROJECT NO:
CS
CS
22016-00-A2-1P
22016.00
SCHEMATIC FLOOR PLAN 5/20/22 PLANNING SUBMITTAL
9/2/22 2ND PLANNING SUBMITTAL
Scott Irwin
Senior Vice President – Southern California
SEEFRIED INDUSTRIAL PROPERTIES, INC.
2301 Rosecrans Avenue, Suite 3165
El Segundo, CA 90245
Office: +1 310 536 7900
Cell: +1 562 484 8761
[email protected]
9/21/23 PC HEARING SET
TYPE III-B
DRY STORAGE WAREHOUSE
40' CLR.
MAX. HT.: 50'
42 DOCK POSITIONS
OFFICE OFFICE RAMP
480,550 SF +
10,000 SF MEZZANINE
490,550 SF G.F.A.
RAMP
RIDGELINE - 46'-7" RIDGELINE - 46'-7"
SCALE: 1" = 40'-0" 0' 10' 20' 50' 100'
1,196'-0"
54'-0" 9'-6" 176'-0" 81'-0" 175'-0" 81'-0" 175'-0" 81'-0" 175'-0" 9'-6" 54'-0" 56'-6" 448'-0"448'-0"
13'-4"13'-4"
32'-6"32'-6"
54'-0"54'-0"
228'-8"228'-8"
54'-0"54'-0"
56'-6"56'-6"
56'-6"
1,196'-0"
22'-0" 54'-0" 41'-5" 941'-2" 53'-5" 54'-0" 22'-0"
1 TYPICAL TRASH ENLARGED PLAN
SCALE: 1/4" = 1'-0"
15'-8"
4'-8" 7'-6"
3'-8" 12'-0" 6'-4"
12'-2"
3'-2"
8'H STEEL
GATE (34"
MIN. CLR.)
2 -
2 PAINTED METAL GATE -
3" X 3" X 3/8" ANGLE
FRAME WITH 16 GA.
CORRUGATED PANEL -
PAINT TO MATCH
BUILDING
CONCRETE TILT-UP
WALL PAINTED TO
MATCH BUILDING
6'-0"
4"
2"
6" 2'-0" 2'-0" 6" 5" 1"
TRASH ENCLOSURE GATE ELEVATION
SCALE: 1/2" = 1'-0" 01201
2'-0" CLEAR
RESERVED FOR
RECYCLABLES
PLASTICS / METALS
PAPER / GLASS
CARDBOARD
50% OF THE TRASH ENCLOSURE AREA
SHALL BE DESIGNATED FOR STORAGE OF
RECYCLABLE MATERIALS - PROVIDE 24" X
18" METAL SIGN PLATE W/ GREEN
BACKGROUND & WHITE LETTERING
PAINTED CORRUGATED
ROOF DECK, FLASHING
AND STEEL TUBE
STRUCTURE - SEE
STRUCTURAL DRAWINGS
64263
TYP.
TYP.
SHEET TITLE
MARK DATE DESCRIPTION A3-1P
COPYRIGHT: RGA, OFFICE OF ARCHITECTURAL DESIGN
CHK'D BY:
DRAWN BY:
CAD FILE NAME:
RGA PROJECT NO:
CS
CS
22016-00-A3-1
22016.00
SCALE: 1" = 30'-0" 0' 10' 20' 50' 100'
RGA
Office of Architectural Design
15231 Alton Parkway, Suite 100
Irvine, CA 92618
T 949-341-0920
FX 949-341-0922
POPLAR SOUTH DISTRIBUTION CENTER
FONTANA, CA
SCHEMATIC ELEVATIONS
Scott Irwin
Senior Vice President – Southern California
SEEFRIED INDUSTRIAL PROPERTIES, INC.
2301 Rosecrans Avenue, Suite 3165
El Segundo, CA 90245
Office: +1 310 536 7900
Cell: +1 562 484 8761
[email protected]
P-1 SHERWIN WILLIAMS
SW 7005 - PURE WHITE
P-2 SHERWIN WILLIAMS
SW 7072 - ONLINE
P-3 SHERWIN WILLIAMS
SW 7073 - NETWORK GRAY
P-4 SHERWIN WILLIAMS
SW 7005 - SOFTWARE
P-5 CLARION RED
PANTONE 7626C
GL-1 SOLARBAN 60 (2) SOLARGRAY
+ CLEAR INSULATED
9/2/22 2ND PLANNING SUBMITTAL
11/16/22 3RD PLANNING SUBMITTAL
5/20/22 PLANNING SUBMITTAL
9/5/23 4TH PLANNING SUBMITTAL
9/21/23 PC HEARING SET
NORTH ELEVATION
EAST ELEVATION
WEST ELEVATION
SOUTH ELEVATION
51'-0"51'-0"
47'-0"
51'-0"
47'-0"
51'-0"
47'-0"
49'-0"
45'-0"
49'-0"
49'-0"
45'-0"
FINISH LEGEND
14'
14'
PAINTED DOCK
DOOR
8' HIGH BLACK TUBE
STEEL ROLLING GATE AT
TRUCK ENTRANCE
FORMLINER
VERTICAL BAND
14' PAINTED CONCRETE
TILT-UP SCREENWALL
CLERESTORY
WAREHOUSE
WINDOWS
FORMLINER
VERTICAL BAND
PRIMARY
ENTRANCE
PRIMARY
ENTRANCE
STEEL TRELLIS
OVER ENTRY
PAINTED GRADE
RAMP DOOR
8' HIGH BLACK TUBE
STEEL ROLLING GATE AT
TRUCK ENTRANCE
14' PAINTED CONCRETE
TILT-UP SCREENWALL
NOTES:
1. ALL ROOFTOP MECH. EQUIPMENT
SHALL BE SCREENED FROM VIEW.
14'H FIRE PUMP
BUILDING
4'
51'-0"
51'-0"
47'-0"
4'
4'
4'
4'4'4'
4'4'
51'-0"
4'
FIRE PUMP
ELEVATIONS
SOUTH EAST NORTH
SOUTH RETAINING WALL / SCREENWALL ELEVATION
8'
8'
64364
206 AUTO STALLS 9'
5'-9"
5'-9"
5'-9" 9' 9' 9' 2 211 FOUNDATION PLANTING / HEDGE SCREEN - MED WATER - 5 GAL Buxus microphylla japonica `Green Beauty` / Green Beauty Boxwood Juniperus chinensis `Spartan` / Spartan Juniper
Ligustrum texanum / Texas Privet
Nandina domestica / Heavenly BambooPodocarpus gracilior `Column` / Fern PineRhaphiolepis indica `Jack Evans` / Indian Hawthorn Xylosma congestum / Shiny Xylosma SCREEN PLANTING - LOW WATER - 5 & 15 GAL Callistemon citrinus `Little John` / Dwarf Bottle Brush Eleagnus pungens / Silverberry Rosmarinus officinalis `Tuscan Blue` / Tuscan Blue Rosemary Westringia fruticosa / Coast Rosemary CONCEPT PLANT SCHEDULE TREES BOTANICAL / COMMON NAME CONT WUCOLS QTY Geijera parviflora / Australian Willow 24"box Med 14 Koelreuteria bipinnata / Chinese Flame Tree - Standard 24"box Med 16 Koelreuteria bipinnata / Chinese Flame Tree Standard 36"box Med 20 Lagerstroemia x `Muskogee` / Lavender Crape Myrtle Std. 24"box Med 15 Pinus eldarica / Afghan Pine 24"box Low 52 SIZE - 24" BOX - WATER USE - WULCOL - LOW Pinus eldarica / Afghan Pine 36"box Low 5 Rhus lancea / African Sumac 24"box Low 40 Tristania conferta / Brisbane Box 24"box Med 32 TREE LEGEND ACCENT SHRUBS - LOW WATER USE - 5 GAL. Agave desmettiana `Variegata` / Variegated Agave Agave x `Blue Flame` / Blue Flame Agave Callistemon citrinus `Little John` / Dwarf Bottle Brush Leucophyllum frutescens `Green Cloud` TM / Green Cloud Texas Ranger Muhlenbergia capillaris / Pink Muhly Muhlenbergia capillaris `Autumn Blush` / Pink Muhly Rosmarinus officinalis `Tuscan Blue` / Tuscan Blue Rosemary Salvia clevelandii `Allen Chickering` / Cleveland Sage Salvia greggii `Furmans Red` / Furman`s Red Salvia Westringia fruticosa / Coast Rosemary SHRUB PALETTE - MEDIUM WATER USE Buxus x `Green Gem` / Green Gem Boxwood Ligustrum texanum / Texas Privet Nandina domestica / Heavenly Bamboo Rhaphiolepis indica `Clara` / Indian Hawthorn Rhaphiolepis indica `Jack Evans` / Indian Hawthorn Rosa floribunda `Iceberg` / Iceberg Rose Xylosma congestum / Shiny Xylosma GROUND COVER PALETTE - LOW WATER USE - 1 GAL Acacia redolens `Desert Carpet` TM / Bank Catclaw Space 4` o.c. Baccharis pilularis `Pigeon Point` / Coyote Brush - Space 4` o.c. Myoporum parvifolium `Putah Creek` / Putah Creek Myoporum Space 3` o.c. Rosmarinus officinalis `Huntington Carpet` / Huntington Carpet Rosemary - Space 3` o.c. GROUND COVER PALETTE - MEDIUM WATER USE - 1 GAL Rosa x `Flower Carpet Pink` / Rose Rosa x `Flower Carpet Red` / Rose Trachelospermum jasminoides / Star Jasmine EARTHWORKS (951)782-0260 SHREDDED MULCH NOTE ALL PLANTER AREAS TO RECEIVE A 3" LAYER OF SHREDDED COVER MULCH AVAILABLE FROM BOTH DIRECTIONS FOR A TOTAL OF 10' 1. ALL TREES WITHIN 6' OF HARDSCAPE SHALL BE IN A SHAWTOWN LINEAR (WRAP AROUND NOT ALLOWED) ROOT BARRIER 24" HIGH LINEAR ROOT BARRIER SHALL BE CENTERED ON TREE AND EXTEND 5' IN NOTES 2. NOTE: QUANTITIES AND AREA CALCULATIONS SHOWN IN LEGEND ARE FOR REFERENCE ONLY . CONTRACTOR REPONSIBLE FOR ALL QUANTITY TAKE-OFFS AND AREA CALCULATIONS FOR DETERMINING COST AND DELIVERY OF MATERIALS TO SITE. SYMBOL DESCRIPTION 3" THICK 3/4" NATURAL COLORED CRUSHED ROCK OVER WEED BARRIER 6"X6" CONCRETE MOW CURB TO SEPARATE SHRUB AREAS FROM DECORATIVE GRAVEL 12REFERENCE NOTES SCHEDULE 09/06/22 RGA00152 2 BFK SHEET TITLE:
PROPOSED DEVELOPMENT:
DEVELOPED BY:
CATAWBA AVE. SPEC. INDUSTRIAL
FONTANA, CA L-1
PRELIMINARY LANDSCAPE PLAN PROPOSED BUILDING
POPLAR AVENUE 1
CATAWBA AVENUE RETAINING WALL- SEE CIVIL / ARCH. PLANS 56 DOCK DOORS GATE GATE FIRE PUMP ROOM OFFICE AREA OFFICE AREA TRASH ENCLOSURE BIKE RACKS SEATING AREA SIDEWALK R/W DRIVE ENTRY DRIVE ENTRY SIDEWALK R/W DRIVE ENTRY DRIVE ENTRY RETAINING WALL- SEE CIVIL'S PLANS P.L. P.L. NORTH 0 80 feet 1" = 40' 40 120 160 RETAINING WALL- SEE CIVIL'S PLANS LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT LINE-OF-SIGHT TRANSFORMER 65 644
Engineering, Inc. Civil Engineering/Land Surveying/Land Planning NOT FOR CONSTRUCTION · · ···· 64566
Engineering, Inc. Civil Engineering/Land Surveying/Land Planning NOT FOR CONSTRUCTION 64667
Engineering, Inc. Civil Engineering/Land Surveying/Land Planning NOT FOR CONSTRUCTION 64768
10 DRC Engineering, Inc.
Civil Engineering/Land Surveying/Land Planning
64869
64970
65071
65172
65273
65374
65475
65576
65677
65778
ATTACHMENT NO. 4
EXISTING &
PROPOSED
GENERAL PLAN
LAND USE
DATE: October 17, 2023
CASE: Master Case No. 22-079: General Plan
Amendment No. 22-007, Specific Plan
Amendment No. 22-003, Development
Agreement No. 22-003, Tentative Parcel Map
(TPM No. 20638) No. 22-016, Design Review
No. 22-040
NORTH
CITY OF FONTANA PLANNING DEPARTMENT
EXISTING
PROPOSED
Legend
65879
ATTACHMENT NO. 5
EXISTING &
PROPOSED
SPECIFIC PLAN
DATE: October 17, 2023
CASE: Master Case No. 22-079: General Plan
Amendment No. 22-007, Specific Plan
Amendment No. 22-003, Development
Agreement No. 22-003, Tentative Parcel Map
(TPM No. 20638) No. 22-016, Design Review
No. 22-040
NORTH
CITY OF FONTANA PLANNING DEPARTMENT
EXISTING
PROPOSED
Legend
65980
ATTACHMENT NO. 6
RESOLUTION PC NO. 2023-___
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
FONTANA RECOMMENDING THE FONTANA CITY COUNCIL
ADOPT A RESOLUTION TO CERTIFY THE FINAL ENVIRONMENTAL
IMPACT REPORT (STATE CLEARINGHOUSE NO. 2022090611),
STATEMENT OF OVERRIDING CONSIDERATIONS, MITIGATION
MONITORING AND REPORTING PROGRAM, AND STATEMENT OF
FACTS AND FINDINGS AND APPROVE GENERAL PLAN
AMENDMENT (GPA) NO. 22-007, SPECIFIC PLAN AMENDMENT
(SPA) NO. 22-003, DEVELOPMENT AGREEMENT NO. 23-003,
TENTATIVE PARCEL MAP (TPM NO. 20638) NO. 22-016 AND
DESIGN REVIEW (DRP) NO. 22-040 FOR THE CONSTRUCTION OF
AN INDUSTRIAL COMMERCE CENTER BUILDING TOTALING
490,565 SQUARE FEET ON A SITE OF APPROXIMATELY 18.8
GROSS ACRES.
WHEREAS, the City of Fontana General Plan was adopted by the City Council on November 13, 2018, and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, the City of Fontana received an application on July 07, 2022 from Seefried Industrial Properties, Inc. (“Applicant”) for General Plan Amendment (GPA) No. 22-007 to amend the General Plan land use designation for 18.8-acres of land located to the east side of Poplar Avenue, west of Catawba Avenue and on the properties along Rose Avenue from Residential Trucking (R-T) to General Industrial (I-G) and to modify Exhibit 15.8 (Land Use Map) of the General Plan to reflect the same; Specific Plan Amendment (SPA) No. 22-003 to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to amend the land use designation of the project site from Residential Trucking District (RTD) to Slover East Industrial District (SED); Development Agreement (AGR) No. 22-003 to establish an agreement for the payment of a public benefit fee; Tentative Parcel Map No. 22-016 (TPM No. 20638) for the consolidation of 41 parcels into one parcel; and Design Review No. 22-040 for the development of an industrial commerce building totaling approximately 490,565 square feet along with site improvements for APNs 0237-171-01, -02, -03, -04, -05, - 06, -07, -08, -09, -10, -11, -12, -13, -14, -15, -6, -17, -18, -19, and 0237-172-01, -02, - 03, -04, -05, -06, -07, -08, -09, -10, -11, -12, -19, -22, -23, -26, -27, -28, -30, -31, -32, 33); and
WHEREAS, the subject site includes 41 parcels that were annexed from San Bernardino County into the City of Fontana on September 19, 2006; and WHEREAS, the subject property is to be developed below the assumed capacity 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) allocated numbers; 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 (FMC) Chapter 30 Article 66081
Resolution PC No. 2023-____