Tuesday, December 12, 2023
2:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Regular Agenda
REGULAR MEETING - 2:00 P.M.
Ord. No. 1938 Reso. No. 2023-115
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine Key - City Clerk
Janet Koehler-Brooks, City Treasurer
1 City Council Meeting Regular Agenda December 12, 2023 Welcome to a meeting of the Fontana City Council.
Welcome to a meeting of the Fontana City Council. A complete agenda packet is located in the binder on the table in the lobby of the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335. To address the Council, please fill out a card located at the entrance to the right indicating your desire to speak on either a specific agenda item or under Public Communications and give it to the City Clerk. Your name will be called when it is your turn to speak. In compliance with Americans with Disabilities Act of 1990 (42 USC § 12132), the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335 is wheelchair accessible, and a portable microphone is available. Upon request, this agenda will be made available in appropriate alternative forms to persons with disabilities, as required by Section 12132 of the Americans with Disabilities Act of 1990. Any person with a disability who requires a modification or accommodation in order to participate in a meeting should direct such a request to the City Clerk’s Office at (909) 350-7602 at least 48 hours before the meeting, if possible. Any public record, relating to an open session agenda item, that is distributed within 72 hours prior to the meeting is available for public inspection in the Grover W. Taylor Council Chambers 8353 Sierra Avenue Fontana, CA 92335.
Traduccion en Español disponible a peticion. Favor de notificar al Departamento "City Clerk".
Para mayor informacion, favor de marcar el numero (909) 350-7602.
The City of Fontana is committed to ensuring a safe and secure environment for its residents to engage with the government. No oversized bags or backpacks (size limit of 14”x14”x6”) will be allowed inside the Council Chambers. All bags are subject to search. Face masks are prohibited in the Council Chambers, but clear masks will be provided upon request to accommodate individuals with medical needs, ensuring their safety and well-being. Before entering the Council Chambers, you may be subject to a metal detector screening. The City Manager retains the discretion to grant any exemptions. Fontana aims to provide safe buildings for our community members, employees, and visitors.
PUBLIC COMMUNICATIONS - CLOSED SESSION:
This is an opportunity for citizens to speak to the City Council for up to three (3) minutes on the following Closed Session. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council.
A. Public Communications - Closed Session
CLOSED SESSION:
A. 1:00 P.M. CLOSED SESSION
A. 1. CONFERENCE WITH LEGAL COUNSEL—EXISTING
LITIGATION (Gov. Code, § 54956.9(d)(1).)
Name of Case: Anderson, Moore v. City of Fontana
2. CONFERENCE WITH LEGAL COUNSEL – EXISTING
LITIGATION PURSUANT TO GOVERNMENT CODE
21-2635
2 City Council Meeting Regular Agenda December 12, 2023 SECTION 54956.9 (a)
Case: Ronald Brunn vs. City of Fontana Workers’
Compensation (Compromise and Release)
3. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: APN # 0191-274-33 and 0191-284-13
City Negotiator: Phillip Burum, Deputy City Manager
Negotiating Party: Randall Swedlove
Under Negotiating: Price and Terms of payment
CALL TO ORDER/ROLL CALL:
A. 2:00 P.M. Call To Order/Roll Call:
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
CLOSED SESSION ANNOUNCEMENT:
PRESENTATIONS:
A. Presentations:
A. City Link Presentation, Cecily Session-Goins, Associate Planner.
21-2684
PUBLIC COMMUNICATIONS:
This is an opportunity for members of the public to address the City Council for up to three (3) minutes total on items either on the Agenda or items not on the Agenda, but within the City Council's jurisdiction. Note that Public Hearing items have individual and specific public input opportunities during the public hearing and testimony on those items will only be taken during the public hearing. The Council is prohibited by law from discussing or taking immediate action on non-agendized items. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council.
A. Public Communications
CONSENT CALENDAR:
All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below. There will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for discussion.
Approve Consent Calendar Items as recommended by staff.
3 City Council Meeting Regular Agenda December 12, 2023 A. Approval of Minutes 21-2634
AApprove the minutes of the November 14, 2023, Regular City Council Meeting, and the November 15, 2023, Adjourned City Council Meeting.
City Council Meeting Minutes 11-14-2023.docx
City Council Meeting Minutes 11-15-2023.docx
Attachments:
B. Adoption of Ordinance No. 1926 (Second Reading) 21-2651 Second Reading / Adoption of Ordinance No. 1926, approving a Zoning District Map Amendment (ZCA No. 22-001) changing the zoning designation from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4) on approximately 6.4 acres located on the north side of Merrill, between Alder Avenue and Laurel Avenue.
Attachments: Ord. 1926.docx
C. Adoption of Ordinance No. 1927 (Second Reading) 21-2652 Second Reading / Adoption of Ordinance No. 1927, Approving a Zoning District Map Amendment (ZCA) No. 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to Form-Based Code (FBC) for the project site that is comprised of five (5) existing parcels (APNs: 0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue.
Attachments: Ord. 1927.docx
D. Adoption of Ordinance No. 1928 (Second Reading) 21-2653 Second Reading / Adoption of Ordinance No. 1928, Approving a Development Code
Amendment (ZCA) No. 22-007 to change the Form-Based Code Map, Section No. 30-
406, to identify the subject properties as Route 66 Gateway sub-district for the project site that is comprised of five (5) existing parcels (APNs:
0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue.
Attachments: Ord. 1928.docx
E. Adoption of Ordinance No. 1929 (Second Reading) 21-2654 Second Reading / Adoption of Ordinance No. 1929, Approving a Specific Plan Amendment No. 22-003, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to change 18.8 acres located west of Catawba Avenue, east of Poplar Avenue and north and south of Rose
4 City Council Meeting Regular Agenda December 12, 2023 Avenue from Residential Trucking District (RTD) to Slover East Industrial District (SED.
Attachments: Ord. 1929.docx
F. Adoption of Ordinance No. 1930 (Second Reading) 21-2655 Second Reading / Adoption of Ordinance No. 1930, Approving Development Agreement No. 23-003 to include payment of a public benefit fee.
Ord. 1930.docx
Signed Development Agreement.docx
Attachments:
G. Adoption of Ordinance No. 1931 (Second Reading) 21-2656 Second Reading / Adoption of Ordinance No. 1931, approving a Zoning District Map Amendment (ZCA) No. 23-004 to change the zoning designation of the entire project site (Sites A and B - APNS: 0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) from Open Space - Resource (OS-R) to Light Industrial (M-1) comprised of approximately 25 acres.
Attachments: Ord. 1931.docx
H. Adoption of Ordinance No. 1932 (Second Reading) 21-2657 Second Reading / Adoption of Ordinance No. 1932, approving a Development Code Amendment (ZCA) No. 23-005 to amend Section 30-651(A), Figure 1 of the Zoning and Development Code to add an Emergency Shelter Overlay District designation to Site A comprised of four (4) parcels (APNs: 0232-171-05, -06, -07, and -08) that includes approximately 7 acres.
Attachments: Ord. 1932.docx
I. Adoption of Ordinance No. 1933 (Second Reading) 21-2658 Second Reading / Adoption of Ordinance No. 1933, approving, pursuant to the certified Environmental Impact Report for the Citrus/Oleander Industrial Commerce Center (State Clearinghouse No. 2022110389), Zoning District Map Amendment No. 23-006 to change the zoning designation for APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel where no development is currently proposed, from Residential Planned Community (R-PC) and Multi-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue.
Attachments: Ord. 1933.docx
5 City Council Meeting Regular Agenda December 12, 2023 J. Adoption of Ordinance No. 1934 (Second Reading) 21-2659 Second Reading / Adoption of Ordinance No. 1934, Approving a Specific Plan Amendment No. 23-004, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Aven.
Attachments: Ord 1934 docx.docx
K. Adoption of Ordinance No. 1935 (Second Reading) 21-2660 Second Reading / Adoption of Ordinance No. 1935, Approving Development Agreement No. 23-085 to include payment of public benefit fee in the amount of $3,192,624.00 and payment of an additional $1,500,000.00 to fund design and construction of an Action Sports Park at Martin Tudor Regional Park.
Attachments: Ordinance No. 1935
L. Adoption of Ordinance No. 1936 (Second Reading) 21-2661 Second Reading / Adoption of Ordinance No. 1936, Approving Master Case No. 23-090 and Municipal Code Amendment No. 23-003 amending Chapter 30 that will modify multiple sections, including modification of appeal hearing timeframes, addition of language to provide for minor and major planned unit developments (PUDs), modification of language related to open space requirements, modification of garage door design requirements; inclusion of language to reduce landscape setback requirements to accommodate bus turn outs and deceleration lanes, addition of language to streamline development standards within Medium Density Residential (R-2) and Multiple Family (R-3) zoning districts, and additional recreational facilities options within the Multi-Family Medium/High Density (R-4) and Multi-Family High Density Residential (R-5) zoning districts.
Attachments: Final Ordinance No. 1936.docx
M. Adoption of Ordinance No. 1937 (Second Reading) 21-2662 Second Reading / Adoption of Ordinance No. 1937, approving Master Case No. 23-098 and Municipal Code Amendment No. 22-001 to amend Chapter 9 of the Municipal Code to modify Article V (Industrial Commerce Centers Sustainability Standards), Section 9-71(f) to prohibit loading docks, truck entries, and truck drive aisles from abutting adjacent sensitive receptors to.
Attachments: Ord. 1937.docx
N. 2024 City Hall Holiday and City Council Meeting Calendar 21-2553 Approve the attached proposed Calendar of City Holidays and City Council Meetings for the year 2024.
6 City Council Meeting Regular Agenda December 12, 2023 Attachments: 2024 Annual Calendar
O. Accept the 2023 TDA Article 3 Grant Award for the Catawba Avenue Safe Routes to School Project, the Rectangular
Rapid Flashing Beacons Project, and the Transit Stop
Improvements Project
21-2626
1. Accept the 2023 Transportation Development Act (TDA) Article 3 Grant Award approved by San Bernardino County Transportation Authority (SBCTA) for the Catawba Avenue Safe Routes to School Project in the amount of $396,348.00.
2. Accept the 2023 Transportation Development Act (TDA) Article 3 Grant Award approved by San Bernardino County Transportation Authority (SBCTA) for the Rectangular Rapid Flashing Beacons Project in the amount of $52,500.00.
3. Accept the 2023 Transportation Development Act (TDA) Article 3 Grant Award approved by San Bernardino County Transportation Authority (SBCTA) for the Transit Stop Improvements Project in the amount of $59,023.00.
. End
4. Adopt Resolution No. 2023-115, a Resolution of the City Council of the City of Fontana authorizing the submittal of Claim Forms, submission of Reimbursement Request Forms, and designate the City Engineer to certify project completions for the Catawba Avenue Safe Routes to School Project, the Rectangular Rapid Flashing Beacons Project, and the Transit Stop Improvements Project related to TDA Article 3 Grant Awards.
Catawba Ave SRTS Project - Vicinity Map
Catawba Avenue SRTS Project Award Letter
Rectangular Rapid Flashing Beacons Project - Vicinity Map Rectangular Rapid Flashing Beacons Project Award Letter Transit Stop Improvements Project - Vicinity Map
Transit Stop Improvements Project Award Letter
TDA Cycle 3 Resolution
Attachments:
P. Approve Task Orders for Engineering Design Services for the South Highland Avenue at Juniper Avenue Traffic
Signal Project and the Santa Ana Avenue at Juniper
Avenue Traffic Signal Project
21-2627
1. Approve and authorize the City Manager to execute a Task Order in a not-to-exceed amount of $136,394.00 with STC Traffic, Inc. for Engineering Design Services for the South Highland Avenue at Juniper Avenue Traffic Signal Project Request for Proposals SQ-87-DE-19-66
7 City Council Meeting Regular Agenda December 12, 2023
2. Approve and authorize the City Manager to execute a Task Order in a not-to-exceed amount of $128,914.00 with STC Traffic, Inc. for Engineering Design Services for the Santa Ana Avenue at Juniper Avenue Traffic Signal Project Request for Proposals SQ-87-DE-19-66
3. Approve and authorize the City Manager to execute any future amendments to both Task Orders.
4. Authorize the City Manager to execute any and all utility agreements, utility easements, and any related items on behalf of the City of Fontana for the South Highland Avenue at Juniper Avenue Traffic Signal Project and the Santa Ana Avenue at Juniper Avenue Traffic Signal Project.
South Highland at Juniper TS - Vicinity Map
Santa Ana at Juniper TS - Vicinity Map
Ranking Matrix
STC Traffic - Technical Proposal
Attachments:
Q. Annual Report on Development Impact Fees 21-2629
Adopt Resolution No. 2023-116, of the City Council of the City of Fontana, approving the Annual Report on Development Impact Fees and making findings as to unexpended funds
Development Impact Fees 2023 Resolution.pdf
2023 Annual Report on Development Impact Fees.pdf
Attachments:
R. Award a Construction Contract for the San Sevaine Trail Phase I Segment 2 Project
21-2647
1. Award bid and authorize the City Manager to execute a Construction Contract with H&H General Contractors, Inc. for the construction of the San Sevaine Trail Phase I Segment 2 Project in the amount of $13,314,324, authorize a 10% contingency in the amount of $1,331,432 (Bid No. SB-109-DE-23) contingent upon San Bernardino County Transportation Authority (SBCTA) Board Approval of Project Funding Plan, and ratify determination that the protest filed in connection therewith is without merit and any deficiencies asserted in connection with the protest are insubstantial and waived by the City on such basis as not affecting the amount of the bid or otherwise providing a competitive advantage.
2. Appropriate $2,500,000 from Park Development Impact Fees (DIF) to the San Sevaine Trail Phase 1 Segment 2 Project No. 3345.
3. Authorize the City Manager to execute any and all utility agreements, utility easements, and any related items on behalf of the City of Fontana for the San Sevaine Trail Phase 1, Segment 2 Project (SB-109-DE-23).
8 City Council Meeting Regular Agenda December 12, 2023 Vicinity Map
Bid Results
Bid Detail
Attachments:
S. Award a Construction Contract for the Sierra Avenue
Landscape Median Project (Bid No. DE-24-28-SB)
21-2633
1. Award Bid and authorize the City Manager to execute a construction contract with IMR Landscape, Inc. for the construction of the Sierra Avenue Landscape Median Project in the amount of $745,690.00 and authorize a 10% contingency in the amount of $74,569.00 (Bid No. DE-24 -28-SB).
2. Approve and authorize the City Manager to execute any and all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Sierra Avenue Landscape Median Project.
Vicinity Map
Bid Results
Bid Detail
Attachments:
T. Adopt the Updated Salary Table for the Non-Classified, Part-time Classifications Due to Minimum Wage Increases 21-2650
Adopt Resolution No. 2023-117, a resolution of the City Council of the City of Fontana adopting the non-classified, part-time salary table to comply with minimum wage increases, effective January 1, 2024.
Attachments: PT Salary Table Update 12/30/2023
U. Approve Amendment No. 8 to Professional Services
Agreement with David Evans and Associates Inc. and
Amendment No. 1.6.1 to Task Order with Interwest
Consulting Group for the San Sevaine Trail Phase 1,
Segment 2 Project
21-2663
1. Approve and authorize the City Manager to execute Amendment No. 8 to a Professional Services Agreement with David Evans and Associates Inc. for Engineering Services for the San Sevaine Trail Phase 1, Segment 2 Project (SQ-12-DE-87-17) in the amount of $670,119.00 for a total contract amount of $1,591,941.32.
2. Approve and authorize City Manager to execute any future amendments to the Professional Services Agreement.
3. Approve and authorize the City Manager to execute Task Order 1.6.1 to Interwest Consulting Group, Inc. for Project Management Services for the San Sevaine Trail Phase 1, Segment 2 Project (SQ-87-DE-19-04) in the
9 City Council Meeting Regular Agenda December 12, 2023 amount of $174,000.00 for a total task order amount of $305,200.00.
4. Approve and authorize the City Manager to execute any future amendments to the Task Order.
Vicinity map
DEA PSA Amendment No. 8
Interwest TO Amendment Scope
Attachments:
V. Police Department Monthly Information Update 21-2664 Accept the Police Department monthly information update for October 2023.
Attachments: October 2023 Report for City Council Rev.pptx W. Approve Amendment No. 1 to Task Order No. 5 with NV5, Inc. for Plan Check, Map Check, and WQMP Review
Services
21-2678
1. Approve and authorize the City Manager to execute an Amendment No. 1 to Task Order No. 5 with NV5, Inc. in the amount of $83,000 and an amended task order total of $158,000 for additional plan check, map check, and WQMP review services.
2. Approve and authorize the City Manager to execute any future amendments to Task Order No. 5 with NV5, Inc
X. Termination of solar power purchase agreement with
General Electric International Inc., for Assessor Parcel Number 0192-031-026-0000.
21-2680
1. Terminate the solar power purchase agreement with General Electric International Inc., for Assessor Parcel Number 0192-031-26
2. Authorize the City Manager to execute any and all documents to satisfy the termination on behalf of the City of Fontana
3. Remit a termination payment in the amount of $129,512.00 to General Electric
4. Appropriate $129,512.00 from Fire District Fund 210 to Fund 103 Solar Panel Termination Letter.docx
GE Power Purchase Agreement Form - City of Fontana -
East Annex.pdf
Attachments:
Y. Award a Contract for the Interior Renovation for Stage RED 21-2687
1. Approve and authorize the City Manager to award and execute a contract with the lowest responsible/responsive bidder for the renovation of Stage RED (Bid No. DE-24-25-SB) in an amount not to exceed $1,400,000.
2. Authorize the City Manager to execute any and all contract amendments
10 City Council Meeting Regular Agenda December 12, 2023 on behalf of the City of Fontana for the renovation of Stage RED.
STAGE RED Interior Remodel Specs Pkg
(DE-24-25-SB).pdf
Attachments:
NEW BUSINESS:
A. New Business
A. An Urgency Ordinance of the City Council of the City of Fontana in accordance with government code sections
36934 and 36937 (B) enacting a prohibition on targeted
residential picketing.
21-2685
Waive reading of the text in its entirety, read by title only, and adopt Urgency Ordinance No. 1938, An urgency ordinance of the City Council of the City of Fontana in accordance with Government Code Sections 36934 and 36937(B) enacting a prohibition on targeted residential picketing.
Attachments: Picketing Urgency Ordinance-c1.docx
B. An Ordinance of the City Council of the City of Fontana enacting a prohibition on targeted residential picketing. 21-2688
Waive reading of the text in its entirety, read by title only, and introduce Ordinance No. 1939, and ordinance of the City Council of the City of Fontana enacting a prohibition on targeted residential picketing.
Attachments: Picketing Ordinance-c1.docx
CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
A. Elected Officials Communications/Reports
ADJOURNMENT:
A. Adjournment
Adjourn to the next Regular City Council Meeting on January 23, 2024 at 2:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.
11 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2635 Agenda Date: 12/12/2023
Agenda #: A. Category: Consent Calendar
Closed Session
Tuesday, December 12, 2023
1:00 P.M.
City Hall - Executive Conference Room
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Page 1 of 1 Printed on 12/4/2023
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2684 Agenda Date: 1/9/2024
Agenda #: A. Category: Special Presentation
Presentation
Tuesday, December 12, 2023
2:00 P.M.
Grover W. Taylor Council Chambers
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Page 1 of 1 Printed on 12/6/2023
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2634 Agenda Date: 12/12/2023
Agenda #: A. Category: Consent Calendar
FROM:
City Clerk
SUBJECT:
Approval of Minutes
RECOMMENDATION:
AApprove the minutes of the November 14, 2023, Regular City Council Meeting, and the November 15, 2023, Adjourned City Council Meeting.
COUNCIL GOALS:
· Create and maintain a dynamic team by supporting the decisions of the majority once made.
· Create and maintain a dynamic team by communicating Goals and Objectives to all commissions and employees.
DISCUSSION:
The City Council will consider approval of the minutes of the November 14, 2023, Regular City Council Meeting, and the November 15, 2023, Adjourned City Council Meeting. The draft minutes are attached to this report for Council review and approval.
FISCAL IMPACT:
None.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Minutes
Tuesday, November 14, 2023
7:00 PM
Grover W. Taylor Council Chambers
City Council and Fontana Housing Authority Meeting
Acquanetta Warren – Mayor/Authority Member
Peter A. Garcia - Mayor Pro Tem/Chairperson
John B. Roberts - Council Member/Vice-Chairperson
Jesus "Jesse" Sandoval - Council Member/Authority Member Phillip Cothran - Council Member/Authority Member
Germaine Key - City Clerk/Authority Secretary
Janet Koehler-Brooks, City Treasurer
15
PUBLIC COMMUNICATION - CLOSED SESSION:
There were no public communications received for the following items:
1. CONFERENCE WITH REAL PROPERTY NEGOTIATORS
(Gov. Code section 54956.8)
Property: 16860 Arrow Blvd. APN 0191163240000
City Negotiator: Matt Ballantyne, City Manager
Negotiating Party: SA Golden Investments
Under Negotiation: Terms of Sale and Payment
CLOSED SESSION:
A. 6:00 P.M. CLOSED SESSION
The Closed Session meeting of the Fontana City Council was held in the Executive Conference Room, 8353 Sierra Avenue, Fontana, CA 92335, on Tuesday, November 14, 2023.
Mayor Warren called the meeting to order at 6:01 p.m., with all members of the City Council present.
CALL TO ORDER/ROLL CALL:
A. 7:00 P.M. Call To Order/Roll Call:
The Regular Meeting of the Fontana City Council and Fontana Housing Authority was held in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, CA 92335, on Tuesday, November 14, 2023.
Mayor Warren called the Regular City Council Meeting to order at 7:05 p.m.
Chairperson Garcia called the Fontana Housing Authority Meeting to order at 7:05 p.m.
ROLL CALL:
PRESENT: Mayor/Authority Member Warren, Mayor Pro Tem/Chair Garcia, Council Member/Vice-Chair Roberts, Council Members/Authority Members Sandoval and Cothran.
ABSENT: None
City Treasurer Janet Koehler-Brooks and City Clerk/Authority Secretary Germaine Key were absent.
16
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
The invocation was given by Council Member Roberts, followed by the pledge of allegiance led by Mayor Pro Tem Garcia.
PUBLIC COMMUNICATIONS:
A. Public Communications
The following individuals spoke under public communications:
1. Daniel Vasquez spoke in support of street vendor enforcement.
2. Danielle Holley of the Fontana Chamber of Commerce spoke in support of Latino small businesses who operated legally.
3. A representative from the Latino Small Business Alliance spoke in support of Latino small businesses who operated legally.
4. Stacy Ramos spoke in opposition of Consent Calendar Item L.
5. Lorraine Enriquez spoke in opposition of Consent Calendar Item L.
6. Edin Enamorado spoke in support of street vendors.
7. Jessica Alocer spoke in opposition of Consent Calendar Item L.
8. Ana Gonzalez spoke in opposition of Consent Calendar Item L.
9. Alma Trejo of the Inland Empire Immigrant Youth Collective spoke in opposition of Consent Calendar Item L.
10.Rene Curiel spoke in opposition of Consent Calendar Item L.
11.Eliza Kirk of the Inland Coalition for Immigrant Justice spoke in opposition of Consent Calendar Item L.
12.Husam Suleiman of the Arkahmon Islamic Center spoke in opposition of Consent Calendar Item L.
13.Alfonso Martinez spoke in opposition of Consent Calendar Item L.
14.Elizabeth Sena spoke in opposition of Consent Calendar Item L.
15.Andrea Ortega spoke in opposition of Consent Calendar Item L.
16.Alex Mendez spoke in support of street vendors.
17.Joaquin Castillegos spoke in opposition of Consent Calendar Item L.
18.Sheila Briano spoke in support of street vendors.
19.Michael Townsend on behalf of Assembly Member Eloise Gomez Reyes spoke in opposition of Consent Calendar Item L.
17
20.Estie spoke in support of street vendors.
21.Rudy Castro of the Civil Review Board discussed concerns with homelessness and in support of street vendors.
22.Abby Amesquita spoke in support of street vendors.
23.David Escamilla spoke in opposition of Consent Calendar Item L.
24.Crystal Calvillo spoke in opposition of Consent Calendar Item L.
25.Veronica Ferias spoke in opposition of Consent Calendar Item L.
26.Aquanett Palpelo spoke in support of street vendors.
RECESS:
Mayor Warren called for a recess at 7:58 p.m.
The meeting reconvened at 8:00 p.m. with all members present.
PUBLIC COMMUNICATIONS - CONTINUED:
27.JoJo spoke in support of street vendors.
28.Jason Garcia spoke opposition of Consent Calendar Item L.
29.Xipe spoke in support of street vendors.
30.Oskar Zambrano discussed concerns with warehouses being located near local schools.
31.Angelina Matias spoke in opposition of Consent Calendar Item L.
32.Librado Castillo spoke in opposition of Consent Calendar Item L.
33.Manuel Tadeo spoke in opposition of Consent Calendar Item L.
34.Junior Alfaro spoke in support of street vendors.
35.Yeni Linares spoke in support of street vendors.
RECESS:
Mayor Warren called for a recess at 8:19 p.m.
The meeting reconvened at 8:55 p.m. with all members present. Mayor Warren also stated that only the Council, staff and the members of the media were present. 18
CLOSED SESSION ANNOUNCEMENT:
A. Closed Session Announcement:
City Attorney Ruben Duran reported that the City Council met in Closed Session on the items listed on the agenda, provided direction to staff, and took no reportable action.
CONSENT CALENDAR:
Prior to the motion being made, Council Member Sandoval stated that he would be voting No on Consent Calendar Items “L” and “M.”
ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro Tem Garcia, and passed by a vote of 5-0 to approve the Consent Calendar Items “A-M” with Council Member Sandoval voting No on items “L” and “M.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts and Sandoval; NOES: None; ABSTAIN: None ABSENT: None
A. Approval of Minutes 21-2597
Approve the minutes of the October 24, 2023, Regular City Council Meeting, and the October 30, 2023, Special City Council Meeting.
B. Approve Purchase of Motorola Portable Radios 21-2500 Approve the Sole Source of the APX6000 Motorola radios and accessories from Motorola Solutions in the amount of $1,252,050 to be utilized on the County of San Bernardino’s 800 MHz system. Radios to be utilized by Police Department Personnel.
Authorize the City Manager or his assigned designee to approve the purchase.
Authorize the Purchasing Division to issue purchase orders to the County of San Bernardino’s vendor; Motorola Solutions to purchase the APX6000 Motorola radios with Asset Seizure Fund #223.
C. Award a Contract for the Tamarind and Industry Pump Station 21-2579 Improvement Project - Bid No. SB-148-PW-23.
Award bid (SB-148-PW-23) and authorize the City Manager to enter into a contract with SCW Contracting Corporation for the Tamarind and Industry Pump Station Improvement Project in the amount of $4,609,361.00 and authorize a 10% contingency in the amount of $460,936.10.
Authorize an increase in expenditures of $460,936.10 in the Sewer Fund 703 to be included in the Mid-Year Budget Status Report.
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D. Accept three (3) Community Project Funding Grants from The U.S. 21-2581 Department of Housing and Urban Development
Accept the following Community Project Funding grant awards in the total amount of $8,750,000:
Homeless Prevention Resource Center Grant in the amount of $4,000,000 Pacific Electric Trail Improvement Project Grant in the amount of $750,000 Courtplace Housing Development Grant in the amount of $4,000,000 Authorize the City Manager to execute documents necessary to ensure the City’s timely receipt of Community Project Funding grants.
E. Accept Lead Hazard Reduction Grant Program from U.S. 21-2582 Department of Housing and Urban Development Office of Lead Hazard Control and Healthy Homes
Accept grant awards in the total amount of $4,400,000, including Lead Hazard Reduction Grant in the amount of $4,000,000 and Healthy Homes Supplemental Grant in the amount of $400,000.
Authorize the City Manager to execute and transmit any documents necessary to ensure the City’s timely receipt of Lead Hazard Reduction Grant and Healthy Homes Supplemental Grant.
F. Final Acceptance of Street, Storm Drain, and Sewer Improvements 21-2592 on Lytle Creek Road for Tract No. 20018
Accept as complete the street, storm drain, and sewer improvements on Lytle Creek Road for Tract No. 20018 located on the east side of Lytle Creek Road, north of Summit Avenue.
Adopt Resolution No. 2023-103, accepting sewer in Lytle Creek Road for Tract No. 20018 as part of the City sewer system.
G. Award a Contract for the Cypress Center and Knopf Center Tenant 21-2595 Improvements Project.
Award bid (PW-24-20-PW) and authorize the City Manager to execute a contract with Fidelity Builders of Glendale, CA in the amount of $427,092.00 and authorize a 10% contingency in the amount of $42,709.00.
H. Final Acceptance of the Cherry at South Highland Interim Traffic 21-2596 Signal Project
Accept as complete the work performed by Elecnor Belco Electric for the construction of the Cherry at South Highland Interim Traffic Signal Project (Project 20
# 37600030) and approve the final construction amount of $290,433.01 (SB-110-DE-23).
I. Approve Joint Use Agreement with Southern California Edison 21-2607 Company.
Approve and authorize the City Manager to execute the Joint Use Agreement with Southern California Edison Company.
J. A Wastewater Agreement with the City of Rialto and Orangewood 21-2610 Mobile Home Park Asset Partners, LLP for the property located at 8787 Locust Avenue, Fontana, CA. APN 0246-191-30
Approve an Extraterritorial Wastewater Service Agreement with the City of Rialto and Orangewood Mobile Home Park Asset Partners, LLP for the property located at 8787 Locust Avenue, Fontana CA. APN 0246-191-30
Authorize the City Manager to execute all documents.
K. Co-Sponsorship Application Cycle (2) 2023/2024 21-2611 Review and approve (10) Co-Sponsorship recommendations for the second half of 2023/2024 fiscal year (January 2024 through June 2024) totaling an amount of $26,740.00 as recommended by Parks, Community, and Human Services Commission.
L. Approve Resolution No. 2023-104, establishing an Impoundment 21-2612 Fee for Ordinance No. 1925
Approve the Resolution that establishes a fee to recoup costs of impounding and storage of confiscated items from unlicensed street vendors M. Declaring Surplus Land - Property located at 8425 Cypress Avenue 21-2614 Approve Resolution No. 2023- 105, declaring that the City-owned property on Cypress Avenue, north of Arrow Boulevard (Assessor’s Parcel Number 0191-121-40) is “Surplus Land” pursuant to the Surplus Land Act, Government Code Section 54220 Et Seq.; and approving the form of Notice of Availability.
Authorize the City Manager and/or his designee(s) to take all actions necessary or appropriate to comply with the Surplus Land Act.
NEW BUSINESS:
Mayor Warren called for rearranging the agenda stating that New Business Item “A” would be considered, and Public Hearing Items “A-D” would be adjourned to the following morning due to the disturbance that occurred.
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A. New Business
A. Council Meeting Start Time 21-2619
City Manager Matthew Ballantyne provided the staff report and stated that an earlier start time was being proposed due to disturbances at recent meetings along with safety concerns. Also noted that an earlier start time was not uncommon for larger agencies and provided a sample list of other agencies with earlier start times.
Mayor Warren stated that business needed to be conducted and safety concerns addressed.
Mayor Warren also discussed other options for recognizing the youth and requested that the Council consider trying an earlier time.
Council Member Sandoval discussed concerns with recognizing the youth with an earlier meeting start time. Also noted that the City should not back down by changing the meeting time.
Mayor Pro Tem Garcia expressed support for an earlier meeting start time and appreciated Council Member Sandoval’s concerns regarding recognizing the youth.
Council Member Cothran expressed support for trying an earlier start time and allowing staff to have a work-life balance and being home with their families during the evening. He also noted that he was always available to meet with constituents.
Council Member Roberts also supported trying an earlier meeting start time.
ACTION: Motion was made by Mayor Warren seconded by Council Member Roberts, and passed by a vote of 4-1 to approve New Business Item “A.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN:
None ABSENT: None
PUBLIC HEARINGS:
City Attorney Ruben Duran stated that due to a disturbance at tonight’s meeting, the Council was unable to proceed with Public Hearing Items “A-D” as originally noticed. City Attorney Duran stated that Public Hearing Items “A-D” needed to be opened and then adjourned to a date and time established by the Council.
Public Hearing Item A:
Mayor Warren opened the Public Hearing.
ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran, and passed unanimously by a vote of 5-0 to adjourn Public Hearing Item “A” to November 15, 2023, at 7:30 a.m. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ABSENT: None 22
A. Fourth Combined General Plan Amendments and Projects for 21-2440 the 4th General Plan Cycle of 2023; Part No. 1 - Merrill Land Use Redesignation and associated Mitigated Negative
Declaration, Part No. 2 - Banana North Multi-Family Project and associated Mitigated Negative Declaration, Part No. 3 - Poplar South Distribution Center Project and associated Environmental Impact Report, Part No. 4 Arrow and Tokay Land Use
Redesignation and associated Mitigated Negative Declaration, and Part No. 5 - Citrus/Oleander Industrial Commerce Center and associated Environmental Impact Report.
Part No. 1 - Merrill Land Use Redesignation
Master Case No. (MCN) 22-040, General Plan Amendment (GPA) 22-001, and Zoning District Map Amendment (ZCA) No. 22-001 to amend the General Plan land use designation of the project site of approximately 6.4 acres of land located north of Merrill Avenue between Alder Avenue and Laurel Avenue from Single-Family Residential (R-SF) to Multi-Family Medium/High Density Residential (R-MFMH) and Zoning District Map (ZCA) 22-001 to change the zoning from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4), pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program. No development is proposed as part of this project.
1a) Adopt Resolution No. 2023-106, (Part No. 1 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana adopting a Mitigated Negative Declaration, approving Mitigation Monitoring and Reporting Program and directing staff to file a Notice of Determination; approving General Plan Amendment No. 22-001 (Part No. 1 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 Chapter 15 (land Use, Zoning and Urban Design) of the General Plan Land Use Designation for APNs:
0246-151-50, -51, -52, -56, -71, and -77 on approximately 6.4 acres of land located north of Merrill Avenue between Alder Avenue and Laurel Avenue, from Single-Family Residential (R-SF) to Multi-Family Medium/High Density Residential (R-MFMH) and,
1b) Read by title only and waive further reading of and introduce Ordinance No. 1926, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA No. 22-001) changing the zoning designation from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4) on approximately 6.4 acres located on the north side of Merrill, between Alder Avenue and Laurel Avenue; and that the reading of the title constitutes the first reading thereof.
Part No. 2 - Banana North Apartments
Master Case No. 22-037: General Plan Amendment (GPA) No. 22-005, Zoning District Map Amendment (ZCA) No. 22-006, Development Code Amendment (ZCA) No. 22-007, and Design Review Project (DRP) 22-020 - to change the 23
General Plan land use map, Exhibit No. 15.8 and Exhibit No. 15.9 from Single-Family Residential (R-SF), to Walkable Mixed Used Corridor and Downtown (WMXU-1), a Zoning District Map Amendment (ZCA) 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to Form-Based Code (FBC), and a Zoning and Development Code Amendment (ZCA) 22-007 to change the Form-Based Code Map, Section No. 30-406, to identify the subject properties as Route 66 Gateway sub-district on APNs:
0230-041-33, -44, -52, -60, and -61 totaling approximately 2.4 adjusted gross acres, and Design Review Project (DRP) 22-020 to develop a new 24-unit apartment project on two (2) parcels, APNs 0230-041-52 and -60, totaling approximately 0.9 gross acres, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program.
2a) Adopt Resolution No. 2023-107, (Part No. 2 of General Plan Amendment Cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving the Mitigated Negative Declaration (MND) and with Mitigation Monitoring and Reporting Program (MMRP) pursuant to Section No. 15070 of the California Environmental Quality Act (CEQA) and Section No. 6.04 of the 2019 Local Guidelines for implementing CEQA, and approving a General Plan Amendment (GPA) 22-005 to change the General Plan land use map, Exhibit No. 15.8 and Exhibit No. 15.9, from Single-Family Residential (R-SF) to Walkable Mixed Used Corridor and Downtown (WMXU-1), for approximately 2.4 adjusted gross acres, and Design Review Project (DRP) 22-020 to develop a new 24-unit apartment project on two (2) parcels, APNs 0230-041-52 and -60, totaling approximately 0.9 adjusted gross acres and associated improvements, respectively, and subject to the Conditions of Approval; and,
2b) Read by title only and waive further reading of and introduce Ordinance No. 1927, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA) No. 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to Form-Based Code (FBC) for the project site that is comprised of five (5) existing parcels (APNs: 0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue, and that the reading of the title constitutes the first reading thereof; and, 2c) Read by title only and waive further reading of and introduce Ordinance No. 1928, an Ordinance of the City Council of the City of Fontana, approving a Development Code Amendment (ZCA) No. 22-007 to change the Form-Based Code Map, Section No. 30-
406, to identify the subject properties as Route 66 Gateway sub-district for the project site that is comprised of five (5) existing parcels (APNs:
0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue; and that the reading of the title constitutes the first reading thereof.
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Part No. 3 - Poplar South Distribution Center Project
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 - Amendment of the subject site's land use designations for approximately 18.8 adjusted gross acres from Residential Trucking (R-T) to General Industrial (I-G) and proposed site and architectural design for the development of an industrial commerce center building totaling approximately 490,565 square feet, and associated Final Environmental Impact Report (EIR).
3a) Adopt Resolution No. 2023-108, a Resolution of the City Council of the City of Fontana certifying the Final Environmental Impact Report (FEIR), (State Clearinghouse No. 2022090611), adopting a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and directing staff to file a Notice of Determination; 3b) Adopt Resolution No. 2023-109, (Part No. 3 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving General Plan Amendment No. 22-007 (Part No. 4 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 to change 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) and approving Tentative Parcel Map No. 20638 (TPM No. 22-016) to process a parcel map to consolidate forty-one (41) parcels into one parcel to develop a project site and approving Design Review No. 22-040 for the site and architecture review for a building totaling approximately 490,565 square feet and associated on-site and off-site improvements subject to the Conditions of Approval; and, 3c) Read by title only and waive further reading of and introduce Ordinance No. 1929, an Ordinance of the City Council of the City of Fontana, approving a Specific Plan Amendment No. 22-003, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to change 18.8 acres located west of Catawba Avenue, east of Poplar Avenue and north and south of Rose Avenue from Residential Trucking District (RTD) to Slover East Industrial District (SED), and that the reading of the title constitutes the first reading thereof; and, 3d) Read by title only and waive further reading of and introduce Ordinance No. 1930, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 23-003 to include payment of a public benefit fee.
Part 4 - Arrow and Tokay Land Use Redesignation
Master Case No. (MCN) MCN23-092: General Plan Amendment (GPA) No. 23-003, Zoning District Map Amendment (ZCA) No. 23-004, and Development 25
Code Amendment (ZCA) No. 23-005 to amend the land use designation of the project site of approximately 25 acres of land located on the southwest corner of Arrow Boulevard and Tokay Avenue (which is divided into Sites A and B, consisting of four (4) parcels each) from Open Space (OS) to Light Industrial (I-L) and to include an Emergency Shelter Overlay District designation for Site A of the project; change the zoning from Open Space - Resource (OS-R) to Light Industrial (M-1) for the project site; and to add an Emergency Shelter Overlay District designation for Site A that is comprised of four (4) parcels, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program. No development is proposed as part of this project.
4a) Adopt Resolution No. 2023-110, (Part No. 4 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana adopting the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and directing staff to file a Notice of Determination; approving General Plan Amendment No. 23-003 (Part No. 4 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 (Future Land Use Map) in Chapter 15 (Land Use, Zoning and Urban Design) of the General Plan to change the General Plan Land Use for the entire project site (Sites A and B - APNS:
0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) comprised of approximately 25 acres from Open Space (OS) to Light Industrial (I-L) and to add an Emergency Shelter Overlay District designation on a portion of the project site comprised of four (4) parcels (Site A - APNS: 0232-171-05, -06, -07, AND -08) that includes approximately 7 acres; and,
4b) Read by title only and waive further reading of and introduce Ordinance No. 1931, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA) No. 23 004 to change the zoning designation of the entire project site (Sites A and B APNS: 0232 171 05, 06, 07, 08, 09, 12, 13, AND 14) from Open Space Resource (OS R) to Light Industrial (M 1) comprised of approximately 25 acres and that the reading of the title constitutes the first reading thereof; and,
4c) Read by title only and waive further reading of and introduce Ordinance No. 1932, an Ordinance of the City Council of the City of Fontana, approving a Development Code Amendment (ZCA) No. 23 005 to amend Section 30 651(A), Figure 1 of the Zoning and Development Code to add an Emergency Shelter Overlay District designation to Site A comprised of four (4) parcels (APNs: 0232 171 05, 06, 07, and 08) that includes approximately 7 acres and that the reading of the title constitutes the first reading thereof.
Part No. 5 - Citrus/Oleander Industrial Commerce Center Project Master Case No. 23-100: Master Case No. 23-100:
Citrus/Oleander Industrial Commerce Center Environmental Impact Report (State Clearinghouse No. 2022110389), General Plan Amendment (GPA) No. 23-004, Zoning District Map Amendment (Zone Change) No. 23-006, Specific Plan Amendment (SPA) No. 23-004, Tentative Parcel Map No. 22-009R1 (TPM 26
No. 20709) (Building No. 1), Design Review (DRP) No. 22-029R1 (Building No. 1), Tentative Parcel Map No. 22-030R1 (TPM No. 20708) (Building No. 2), Design Review No. 22-061R1 (Building No. 2), Tentative Parcel Map No. 22-031R1 (TPM No. 20707) (Building No. 3), Design Review No. 22-062R1 (Building No. 3), and Development Agreement (DA) No. 23-085, - Amendment of the subject site's General Plan land use designation for approximately
29.4 adjusted gross acres (inclusive of a five-acre parcel that does not include development) from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R-MFMH) to General Industrial (I-G), amendment of the Zoning District Map to change the project area zoning designation from Residential Planned Community and Multiple-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan for approximately 29.4 adjusted gross acres, amendment of the Southwest Industrial Park Specific Plan (SWIP) to expand the specific plan boundaries to include the project area and designate it as Slover East Industrial District (SED) for approximately 29.4 adjusted gross acres, tentative parcel maps for the consolidation of parcels, and proposed site and architectural design for the development of three (3) industrial commerce center buildings totaling approximately 532,104 square feet, Development Agreement for a public benefit fee, and associated Final Environmental Impact Report (EIR).
5a) Adopt Resolution No. 2023-111, a Resolution of the City Council of the City of Fontana certifying the Citrus/Oleander Industrial Commerce Center Final Environmental Impact Report (FEIR), (State Clearinghouse No. 2022110389), adopting a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and directing staff to file a Notice of Determination;
5b) Adopt Resolution No. 2023-112, (Part No. 5 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving General Plan Amendment No. 23-004 (Part No. 5 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 to change the General Plan Land Use designation on approximately 29.4 adjusted gross acres (APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24 (inclusive of a five-acre parcel that does not include development) from Residential Planned Community (R-PC) and Multiple-Family Medium/High Residential (R-MFMH) to General Industrial (I-G) and approving Tentative Parcel Map No. 22-009R1 (TPM No. 20709) to consolidate six (6) parcels into one parcel to develop the project site for Building No. 1; Tentative Parcel Map No. 22-030R1 (TPM No. 20708) to consolidate six (6) parcels into one parcel to develop the project site for Building No. 2; Tentative Parcel Map No. 22-031R1 (TPM No. 20707) to consolidate five (5) parcels into one to develop the project site for Building No. 3; Design Review No. 22-029R1 for the design of Building No. 1; Design Review No. 22-061R1 for the design of Building No. 2; and Design Review No. 22-062R1 for the design of Building No. 3, all totaling approximately 532,104 square feet and including associated on-site and off-site improvements subject to the Conditions of Approval; and, 5c) Read by title only and waive further reading of and introduce Ordinance No. 27
1933, an Ordinance of the City Council of the City of Fontana, approving, pursuant to the certified Environmental Impact Report for the Citrus/Oleander Industrial Commerce Center (State Clearinghouse No. 2022110389), Zoning District Map Amendment No. 23-006 to change the zoning designation for APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel where no development is currently proposed, from Residential Planned Community (R-PC) and Multi-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,
5d) Read by title only and waive further reading of and introduce Ordinance No. 1934, an Ordinance of the City Council of the City of Fontana, approving a Specific Plan Amendment No. 23-004, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire
29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,
5e) Read by title only and waive further reading of and introduce Ordinance No. 1935, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 23-085 to include payment of public benefit fee in the amount of $3,192,624.00 and payment of an additional $1,500,000.00 to fund design and construction of an Action Sports Park at Martin Tudor Regional Park; and that the reading of the title constitutes the first reading thereof.
Public Hearing Item B:
Mayor Warren opened the Public Hearing.
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Sandoval, and passed unanimously by a vote of 5-0 to adjourn Public Hearing Item “B” to November 15, 2023, at 7:30 a.m. The motion carried by the following vote: AYES:
Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ABSENT:
None
B. Master Case No. 23-090 and Municipal Code Amendment No. 21-2539 23-003 - Fontana Municipal Code amendments to Chapter 30 (Zoning and Development Code), pursuant to a categorical exemption in accordance with CEQA Guidelines section
15060(c) and 15061(B)(3).
1. Determine that this project is Categorically Exempt pursuant Sections 15060(c), 15061(B)(3) (the “common-sense” exemption), and 15378 and Sections No. 3.01,
3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, and direct staff to file a Notice of Exemption; and,
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2. Read by title only and waive further reading of and introduce Ordinance No. 1936, an Ordinance of the City Council of the City of Fontana approving Master Case No. 23-090 and Municipal Code Amendment No. 23-003 amending Chapter 30 that will modify multiple sections, including modification of appeal hearing timeframes, addition of language to provide for minor and major planned unit developments (PUDs), modification of language related to open space requirements, modification of garage door design requirements; inclusion of language to reduce landscape setback requirements to accommodate bus turn outs and deceleration lanes, addition of language to streamline development standards within Medium Density Residential (R-2) and Multiple Family (R-3) zoning districts, and additional recreational facilities options within the Multi-Family Medium/High Density (R-4) and Multi-Family High Density Residential (R-5) zoning districts; and the reading of the title constitutes the first thereof.
Public Hearing Item C:
Mayor Warren opened the Public Hearing.
ACTION: Motion was made by Council Member Sandoval, seconded by Council Member Roberts, and passed unanimously by a vote of 5-0 to adjourn Public Hearing Item “C” to November 15, 2023, at 7:30 a.m. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ABSENT: None C. Master Case No. 23-098 and Municipal Code Amendment No. 21-2590 23-001 - Amendment to Fontana Municipal Code Chapter 9 to modify Article V (Industrial Commerce Centers Sustainability Standards), Section 9-71(f), pursuant to a categorical
exemption in accordance with CEQA Guidelines section
15060(c), 15061(b)(3), 15307 and 15308.
Determine that this Ordinance is categorically exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15061(b)(3) (the common-sense exemption), and Section No. 3.22 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA and, alternatively, pursuant to CEQA Guidelines Section 15307 (Actions by Regulatory Agencies for Protection of Natural Resources) and 15308 (Actions by Regulatory Agencies for Protection of the Environment), and Section No. 3.22 of the 2019 Local Guidelines for Implementing of CEQA, as implementation of this ordinance is to improve the environment; and,
Read by title only and waive further reading of and introduce Ordinance No. 1937, an Ordinance of the City Council of the City of Fontana approving Master Case No. 23-098 and Municipal Code Amendment No. 22-001 to amend Chapter 9 of the Municipal Code to modify Article V (Industrial Commerce Centers Sustainability Standards), Section 9-71(f) to prohibit loading docks, truck entries, 29
and truck drive aisles from abutting adjacent sensitive receptors to; and the reading of the title constitutes the first thereof.
Public Hearing Item D:
Mayor Warren opened the Public Hearing.
ACTION: Motion was made by Council Member/Authority Member Sandoval, seconded by Council Member/Authority Member Cothran, and passed unanimously by a vote of 5-0 to adjourn Public Hearing Item “D” to November 15, 2023, at 7:30 a.m. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES:
None; ABSTAIN: None ABSENT: None
D. Public Hearing and consideration of a Disposition and 21-2598 Development Agreement (“DDA”) between the City of Fontana, the Fontana Housing Authority and Fontana Courtplace I
Housing Partners, L.P., for development of 1.94 acres of unimproved land located on Sierra Avenue, between Santa Ana Avenue to the north and Jurupa Avenue to the south (a portion of assessor parcel numbers 0255-101-22-0-000 and
0255-101-23-0-000)(“Property”) pursuant to California Environmental Quality Act findings concerning the adequacy of
the previously adopted Mitigated Negative Declaration, and Mitigation, Monitoring, and Reporting Program.
1. Acting as the City Council, conduct a public hearing to consider protests to the conveyance of 1.94 acres of unimproved land located on Sierra Avenue, between Santa Ana Avenue to the north and Jurupa Avenue to the south (a portion of assessor parcel numbers 0255-101-22-0-000 and 0255-101-23-0-000) (“Property”); determine public interest and convenience require the sale of the Property;
2. Acting as the City Council and Housing Authority Board of Directors, jointly adopt the Resolution Approving the Disposition and Development Agreement among the Fontana Housing Authority, City of Fontana and Fontana Courtplace I Housing Partners, L.P. for the sale of Property for the construction of a 50 unit affordable family-apartment housing project and adopt California Environmental Quality Act findings concerning the adequacy of the previously adopted Mitigated Negative Declaration, and Mitigation, Monitoring, and Reporting Program and direct staff to file a Notice of Determination.
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CITY MANAGER COMMUNICATIONS:
A. City Manager Communications
City Manager Matthew Ballantyne did not have any comments.
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:
A. Elected Officials Communications/Reports
Council Member Cothran had no comments.
Mayor Pro Tem Garcia had no comments.
Council Member Roberts had no comments.
Council Member Sandoval had no comments.
Mayor Warren thanked City staff, the Fontana Police Department, the Fontana Chamber of Commerce, and all who spoke this evening. Also discussed the importance of supporting Latino small businesses and all businesses operating legally.
ADJOURNMENT:
A. Adjournment
The meeting adjourned at 9:15 p.m. to the Regular Meeting of the Fontana City Council and Fontana Housing Authority on November 15, 2023, at 7:30 a.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California. _____________________
Christina Rudsell
Deputy City Clerk
THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL ON DECEMBER 12TH, 2023.
_______________________
Germaine Key
City Clerk
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City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Minutes
Wednesday, November 15, 2023
7:30 AM
(Continued from the Regular City Council and Fontana Housing Authority Meeting held on November 14, 2023)
Grover W. Taylor Council Chambers
City Council and Fontana Housing Authority Meeting
Acquanetta Warren – Mayor/Authority Member
Peter A. Garcia - Mayor Pro Tem/Chairperson
John B. Roberts - Council Member/Vice-Chairperson
Jesus "Jesse" Sandoval - Council Member/Authority Member Phillip Cothran - Council Member/Authority Member
Germaine Key - City Clerk/Authority Secretary
Janet Koehler-Brooks, City Treasurer
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CALL TO ORDER/ROLL CALL:
A. 7:30 A.M. Call To Order/Roll Call:
The Regular Meeting of the Fontana City Council and Fontana Housing Authority was held in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, CA 92335, on Wednesday, November 15, 2023.
Mayor Warren called the Regular City Council Meeting to order at 7:31 a.m.
Chairperson Garcia called the Fontana Housing Authority Meeting to order at 7:34 a.m.
ROLL CALL:
PRESENT: Mayor/Authority Member Warren, Mayor Pro Tem/Chair Garcia, Council Member/Vice-Chair Roberts, Council Members/Authority Members Sandoval and Cothran.
ABSENT: None
City Treasurer Janet Koehler-Brooks was also in attendance.
City Clerk/Authority Secretary Germaine Key was absent.
INVOCATION/PLEDGE OF ALLEGIANCE:
A. Invocation/Pledge of Allegiance:
The invocation was given by Council Member Roberts, followed by the pledge of allegiance led by Council Member Cothran.
PUBLIC HEARINGS:
Public Hearing Item A:
Mayor Warren opened the Public Hearing.
A. Fourth Combined General Plan Amendments and Projects for 21-2440 the 4th General Plan Cycle of 2023; Part No. 1 - Merrill Land Use Redesignation and associated Mitigated Negative
Declaration, Part No. 2 - Banana North Multi-Family Project and associated Mitigated Negative Declaration, Part No. 3 - Poplar South Distribution Center Project and associated Environmental Impact Report, Part No. 4 Arrow and Tokay Land Use
Redesignation and associated Mitigated Negative Declaration, and Part No. 5 - Citrus/Oleander Industrial Commerce Center and associated Environmental Impact Report.
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Part No. 1 - Merrill Land Use Redesignation
Master Case No. (MCN) 22-040, General Plan Amendment (GPA) 22-001, and Zoning District Map Amendment (ZCA) No. 22-001 to amend the General Plan land use designation of the project site of approximately 6.4 acres of land located north of Merrill Avenue between Alder Avenue and Laurel Avenue from Single-Family Residential (R-SF) to Multi-Family Medium/High Density Residential (R-MFMH) and Zoning District Map (ZCA) 22-001 to change the zoning from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4), pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program. No development is proposed as part of this project.
1a) Adopt Resolution No. 2023-106, (Part No. 1 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana adopting a Mitigated Negative Declaration, approving Mitigation Monitoring and Reporting Program and directing staff to file a Notice of Determination; approving General Plan Amendment No. 22-001 (Part No. 1 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 Chapter 15 (land Use, Zoning and Urban Design) of the General Plan Land Use Designation for APNs:
0246-151-50, -51, -52, -56, -71, and -77 on approximately 6.4 acres of land located north of Merrill Avenue between Alder Avenue and Laurel Avenue, from Single-Family Residential (R-SF) to Multi-Family Medium/High Density Residential (R-MFMH) and,
1b) Read by title only and waive further reading of and introduce Ordinance No. 1926, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA No. 22-001) changing the zoning designation from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4) on approximately 6.4 acres located on the north side of Merrill, between Alder Avenue and Laurel Avenue; and that the reading of the title constitutes the first reading thereof.
Assistant Planner Alexia Del La Torre provided the staff report.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
With no one interested to speak in favor or opposition of this item Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro Tem Garcia and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “A” Part 1. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None 34
Part No. 2 - Banana North Apartments
Master Case No. 22-037: General Plan Amendment (GPA) No. 22-005, Zoning District Map Amendment (ZCA) No. 22-006, Development Code Amendment (ZCA) No. 22-007, and Design Review Project (DRP) 22-020 - to change the General Plan land use map, Exhibit No. 15.8 and Exhibit No. 15.9 from Single-Family Residential (R-SF), to Walkable Mixed Used Corridor and Downtown (WMXU-1), a Zoning District Map Amendment (ZCA) 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to Form-Based Code (FBC), and a Zoning and Development Code Amendment (ZCA) 22-007 to change the Form-Based Code Map, Section No. 30-406, to identify the subject properties as Route 66 Gateway sub-district on APNs:
0230-041-33, -44, -52, -60, and -61 totaling approximately 2.4 adjusted gross acres, and Design Review Project (DRP) 22-020 to develop a new 24-unit apartment project on two (2) parcels, APNs 0230-041-52 and -60, totaling approximately 0.9 gross acres, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program.
2a) Adopt Resolution No. 2023-107, (Part No. 2 of General Plan Amendment Cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving the Mitigated Negative Declaration (MND) and with Mitigation Monitoring and Reporting Program (MMRP) pursuant to Section No. 15070 of the California Environmental Quality Act (CEQA) and Section No. 6.04 of the 2019 Local Guidelines for implementing CEQA, and approving a General Plan Amendment (GPA) 22-005 to change the General Plan land use map, Exhibit No. 15.8 and Exhibit No. 15.9, from Single-Family Residential (R-SF) to Walkable Mixed Used Corridor and Downtown (WMXU-1), for approximately 2.4 adjusted gross acres, and Design Review Project (DRP) 22-020 to develop a new 24-unit apartment project on two (2) parcels, APNs 0230-041-52 and -60, totaling approximately 0.9 adjusted gross acres and associated improvements, respectively, and subject to the Conditions of Approval; and,
2b) Read by title only and waive further reading of and introduce Ordinance No. 1927, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA) No. 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to Form-Based Code (FBC) for the project site that is comprised of five (5) existing parcels (APNs: 0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue, and that the reading of the title constitutes the first reading thereof; and, 2c) Read by title only and waive further reading of and introduce Ordinance No. 1928, an Ordinance of the City Council of the City of Fontana, approving a Development Code Amendment (ZCA) No. 22-007 to change the Form-Based Code Map, Section No. 30-
406, to identify the subject properties as Route 66 Gateway sub-district for the project site that is comprised of five (5) existing parcels (APNs:
0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill 35
Boulevard and Banana Avenue; and that the reading of the title constitutes the first reading thereof.
Associate Planner Jon Dille provided the staff report.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
The following individuals spoke in opposition of the item:
1. Jennifer Cardenas
2. Alex Enamorado
Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts and unanimously passed by a vote of 5-0 to approve staff recommendation on Public Hearing Item “A” Part 2. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ABSENT: None Part No. 3 - Poplar South Distribution Center Project
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 - Amendment of the subject site's land use designations for approximately 18.8 adjusted gross acres from Residential Trucking (R-T) to General Industrial (I-G) and proposed site and architectural design for the development of an industrial commerce center building totaling approximately 490,565 square feet, and associated Final Environmental Impact Report (EIR).
3a) Adopt Resolution No. 2023-108, a Resolution of the City Council of the City of Fontana certifying the Final Environmental Impact Report (FEIR), (State Clearinghouse No. 2022090611), adopting a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and directing staff to file a Notice of Determination; 3b) Adopt Resolution No. 2023-109, (Part No. 3 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving General Plan Amendment No. 22-007 (Part No. 4 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 to change 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) and approving Tentative Parcel Map No. 20638 (TPM No. 22-016) to process 36
a parcel map to consolidate forty-one (41) parcels into one parcel to develop a project site and approving Design Review No. 22-040 for the site and architecture review for a building totaling approximately 490,565 square feet and associated on-site and off-site improvements subject to the Conditions of Approval; and, 3c) Read by title only and waive further reading of and introduce Ordinance No. 1929, an Ordinance of the City Council of the City of Fontana, approving a Specific Plan Amendment No. 22-003, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to change 18.8 acres located west of Catawba Avenue, east of Poplar Avenue and north and south of Rose Avenue from Residential Trucking District (RTD) to Slover East Industrial District (SED), and that the reading of the title constitutes the first reading thereof; and, 3d) Read by title only and waive further reading of and introduce Ordinance No. 1930, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 23-003 to include payment of a public benefit fee.
Associate Planner Alejandro Rico provided the staff report.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
The following individuals spoke in opposition of the item:
1. Stacy Ramos
RECESS:
Mayor Warren called for a recess at 7:54 am.
The meeting reconvened at 7:55 am with all members present.
Part No. 3 - Poplar South Distribution Center Project – Continued The following individuals spoke in opposition of the item:
2. Ana Gonzalez
3. Claudia Cuevas
4. Jennifer Cardenas
5. Joaquin Castillegos
6. Elizabeth Sena
Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “A” Part 3. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None 37
Part 4 - Arrow and Tokay Land Use Redesignation
Master Case No. (MCN) MCN23-092: General Plan Amendment (GPA) No. 23-003, Zoning District Map Amendment (ZCA) No. 23-004, and Development Code Amendment (ZCA) No. 23-005 to amend the land use designation of the project site of approximately 25 acres of land located on the southwest corner of Arrow Boulevard and Tokay Avenue (which is divided into Sites A and B, consisting of four (4) parcels each) from Open Space (OS) to Light Industrial (I-L) and to include an Emergency Shelter Overlay District designation for Site A of the project; change the zoning from Open Space - Resource (OS-R) to Light Industrial (M-1) for the project site; and to add an Emergency Shelter Overlay District designation for Site A that is comprised of four (4) parcels, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program. No development is proposed as part of this project.
4a) Adopt Resolution No. 2023-110, (Part No. 4 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana adopting the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program and directing staff to file a Notice of Determination; approving General Plan Amendment No. 23-003 (Part No. 4 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 (Future Land Use Map) in Chapter 15 (Land Use, Zoning and Urban Design) of the General Plan to change the General Plan Land Use for the entire project site (Sites A and B - APNS:
0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) comprised of approximately 25 acres from Open Space (OS) to Light Industrial (I-L) and to add an Emergency Shelter Overlay District designation on a portion of the project site comprised of four (4) parcels (Site A - APNS: 0232-171-05, -06, -07, AND -08) that includes approximately 7 acres; and,
4b) Read by title only and waive further reading of and introduce Ordinance No. 1931, an Ordinance of the City Council of the City of Fontana, approving a Zoning District Map Amendment (ZCA) No. 23 004 to change the zoning designation of the entire project site (Sites A and B APNS: 0232 171 05, 06, 07, 08, 09, 12, 13, AND 14) from Open Space Resource (OS R) to Light Industrial (M 1) comprised of approximately 25 acres and that the reading of the title constitutes the first reading thereof; and,
4c) Read by title only and waive further reading of and introduce Ordinance No. 1932, an Ordinance of the City Council of the City of Fontana, approving a Development Code Amendment (ZCA) No. 23 005 to amend Section 30 651(A), Figure 1 of the Zoning and Development Code to add an Emergency Shelter Overlay District designation to Site A comprised of four (4) parcels (APNs: 0232 171 05, 06, 07, and 08) that includes approximately 7 acres and that the reading of the title constitutes the first reading thereof. 38
Senior Planner Rina Leung provided the staff report.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
The following individuals spoke in opposition of the item:
1. Stacy Ramos
2. Joaquin Castillegos
3. Jennifer Cardenas
4. Elizabeth Sena
5. Claudia Cuevas
Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “A” Part 4. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None Part No. 5 - Citrus/Oleander Industrial Commerce Center Project Master Case No. 23-100: Master Case No. 23-100:
Citrus/Oleander Industrial Commerce Center Environmental Impact Report (State Clearinghouse No. 2022110389), General Plan Amendment (GPA) No. 23-004, Zoning District Map Amendment (Zone Change) No. 23-006, Specific Plan Amendment (SPA) No. 23-004, Tentative Parcel Map No. 22-009R1 (TPM No. 20709) (Building No. 1), Design Review (DRP) No. 22-029R1 (Building No. 1), Tentative Parcel Map No. 22-030R1 (TPM No. 20708) (Building No. 2), Design Review No. 22-061R1 (Building No. 2), Tentative Parcel Map No. 22-031R1 (TPM No. 20707) (Building No. 3), Design Review No. 22-062R1 (Building No. 3), and Development Agreement (DA) No. 23-085, - Amendment of the subject site's General Plan land use designation for approximately
29.4 adjusted gross acres (inclusive of a five-acre parcel that does not include development) from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R-MFMH) to General Industrial (I-G), amendment of the Zoning District Map to change the project area zoning designation from Residential Planned Community and Multiple-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan for approximately 29.4 adjusted gross acres, amendment of the Southwest Industrial Park Specific Plan (SWIP) to expand the specific plan boundaries to include the project area and designate it as Slover East Industrial District (SED) for approximately 29.4 adjusted gross acres, tentative parcel maps for the consolidation of parcels, and proposed site and architectural design for the development of three (3) industrial commerce center buildings totaling approximately 532,104 square feet, Development Agreement for a public benefit fee, and associated Final Environmental Impact Report (EIR).
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5a) Adopt Resolution No. 2023-111, a Resolution of the City Council of the City of Fontana certifying the Citrus/Oleander Industrial Commerce Center Final Environmental Impact Report (FEIR), (State Clearinghouse No. 2022110389), adopting a Statement of Overriding Consideration, a Mitigation Monitoring and Reporting Program, and a Statement of Facts and Findings, and directing staff to file a Notice of Determination;
5b) Adopt Resolution No. 2023-112, (Part No. 5 of General Plan Amendment cycle No. 4 of 2023,) a Resolution of the City Council of the City of Fontana approving General Plan Amendment No. 23-004 (Part No. 5 of General Plan Amendment cycle No. 4 of 2023) amending General Plan Exhibit 15.8 to change the General Plan Land Use designation on approximately 29.4 adjusted gross acres (APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24 (inclusive of a five-acre parcel that does not include development) from Residential Planned Community (R-PC) and Multiple-Family Medium/High Residential (R-MFMH) to General Industrial (I-G) and approving Tentative Parcel Map No. 22-009R1 (TPM No. 20709) to consolidate six (6) parcels into one parcel to develop the project site for Building No. 1; Tentative Parcel Map No. 22-030R1 (TPM No. 20708) to consolidate six (6) parcels into one parcel to develop the project site for Building No. 2; Tentative Parcel Map No. 22-031R1 (TPM No. 20707) to consolidate five (5) parcels into one to develop the project site for Building No. 3; Design Review No. 22-029R1 for the design of Building No. 1; Design Review No. 22-061R1 for the design of Building No. 2; and Design Review No. 22-062R1 for the design of Building No. 3, all totaling approximately 532,104 square feet and including associated on-site and off-site improvements subject to the Conditions of Approval; and, 5c) Read by title only and waive further reading of and introduce Ordinance No. 1933, an Ordinance of the City Council of the City of Fontana, approving, pursuant to the certified Environmental Impact Report for the Citrus/Oleander Industrial Commerce Center (State Clearinghouse No. 2022110389), Zoning District Map Amendment No. 23-006 to change the zoning designation for APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel where no development is currently proposed, from Residential Planned Community (R-PC) and Multi-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,
5d) Read by title only and waive further reading of and introduce Ordinance No. 1934, an Ordinance of the City Council of the City of Fontana, approving a Specific Plan Amendment No. 23-004, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire
29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and 40
north of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,
5e) Read by title only and waive further reading of and introduce Ordinance No. 1935, an Ordinance of the City Council of the City of Fontana, approving Development Agreement No. 23-085 to include payment of public benefit fee in the amount of $3,192,624.00 and payment of an additional $1,500,000.00 to fund design and construction of an Action Sports Park at Martin Tudor Regional Park; and that the reading of the title constitutes the first reading thereof.
Senior Planner Salvador Quintanilla provided the staff report.
Council Member Sandoval expressed concerns with the project and the traffic impact from the stacking of trucks in the area.
Council Member Cothran asked what recourse the City would have should stacking occur.
Discussion ensued regarding the impact of stacking of trucks.
Senior Planner Salvador Quintanilla stated that prohibition of stacking could be added as a condition of approval.
Deputy City Manager Phillip Burum clarified that the sustainability ordinance would prohibit the stacking issue along with commercial enforcement.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
The following individuals spoke in opposition of the item:
1. Elizabeth Cena
2. Jennifer Cardenas
3. Stacey Ramos
4. Joaquin Castillegos
5. Ana Gonzalez
6. Claudia Cuevas
Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Roberts, seconded by Council Member Cothran and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “A” Part 5. The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None B. Master Case No. 23-090 and Municipal Code Amendment No. 21-2539 23-003 - Fontana Municipal Code amendments to Chapter 30 (Zoning and Development Code), pursuant to a categorical 41
exemption in accordance with CEQA Guidelines section
15060(c) and 15061(B)(3).
1. Determine that this project is Categorically Exempt pursuant Sections 15060(c), 15061(B)(3) (the “common-sense” exemption), and 15378 and Sections No. 3.01,
3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, and direct staff to file a Notice of Exemption; and,
2. Read by title only and waive further reading of and introduce Ordinance No. 1936, an Ordinance of the City Council of the City of Fontana approving Master Case No. 23-090 and Municipal Code Amendment No. 23-003 amending Chapter 30 that will modify multiple sections, including modification of appeal hearing timeframes, addition of language to provide for minor and major planned unit developments (PUDs), modification of language related to open space requirements, modification of garage door design requirements; inclusion of language to reduce landscape setback requirements to accommodate bus turn outs and deceleration lanes, addition of language to streamline development standards within Medium Density Residential (R-2) and Multiple Family (R-3) zoning districts, and additional recreational facilities options within the Multi-Family Medium/High Density (R-4) and Multi-Family High Density Residential (R-5) zoning districts; and the reading of the title constitutes the first thereof.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
With no one interested to speak in favor or opposition of this item Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Mayor Pro Tem Garcia, seconded by Council Member Cothran and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “B” as amended to include a reduction of the maximum allowable height for multifamily/attached buildings in the R-2 zoning district as well as an adjustment to the required setbacks between buildings in the R-2 and R-3 zoning districts and adjacent parcels with differing zoning designations. The motion carried by the following vote:
AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT:
None
Public Hearing Item C:
C. Master Case No. 23-098 and Municipal Code Amendment No. 21-2590 23-001 - Amendment to Fontana Municipal Code Chapter 9 to modify Article V (Industrial Commerce Centers Sustainability Standards), Section 9-71(f), pursuant to a categorical
exemption in accordance with CEQA Guidelines section
15060(c), 15061(b)(3), 15307 and 15308.
Determine that this Ordinance is categorically exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15061(b)(3) 42
(the common-sense exemption), and Section No. 3.22 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA and, alternatively, pursuant to CEQA Guidelines Section 15307 (Actions by Regulatory Agencies for Protection of Natural Resources) and 15308 (Actions by Regulatory Agencies for Protection of the Environment), and Section No. 3.22 of the 2019 Local Guidelines for Implementing of CEQA, as implementation of this ordinance is to improve the environment; and,
Read by title only and waive further reading of and introduce Ordinance No. 1937, an Ordinance of the City Council of the City of Fontana approving Master Case No. 23-098 and Municipal Code Amendment No. 22-001 to amend Chapter 9 of the Municipal Code to modify Article V (Industrial Commerce Centers Sustainability Standards), Section 9-71(f) to prohibit loading docks, truck entries, and truck drive aisles from abutting adjacent sensitive receptors to; and the reading of the title constitutes the first thereof.
Director of Planning Patty Nevins provided the staff report.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
The following individuals spoke in opposition of the item:
1. Ana Gonzalez
Mayor Warren closed the Public Hearing.
Mayor Warren reopened the Public Hearing.
The following individuals spoke in opposition of the item:
1. Joaquin Castillegos
Mayor Warren closed the Public Hearing.
ACTION: Motion was made by Council Member Cothran, seconded by Council Member Roberts and passed by a vote of 4-1 to approve staff recommendation on Public Hearing Item “C.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None
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Public Hearing Item D:
D. Public Hearing and consideration of a Disposition and 21-2598 Development Agreement (“DDA”) between the City of Fontana, the Fontana Housing Authority and Fontana Courtplace I
Housing Partners, L.P., for development of 1.94 acres of unimproved land located on Sierra Avenue, between Santa Ana Avenue to the north and Jurupa Avenue to the south (a portion of assessor parcel numbers 0255-101-22-0-000 and
0255-101-23-0-000)(“Property”) pursuant to California Environmental Quality Act findings concerning the adequacy of
the previously adopted Mitigated Negative Declaration, and Mitigation, Monitoring, and Reporting Program.
1. Acting as the City Council, conduct a public hearing to consider protests to the conveyance of 1.94 acres of unimproved land located on Sierra Avenue, between Santa Ana Avenue to the north and Jurupa Avenue to the south (a portion of assessor parcel numbers 0255-101-22-0-000 and 0255-101-23-0-000) (“Property”); determine public interest and convenience require the sale of the Property;
2. Acting as the City Council and Housing Authority Board of Directors, jointly adopt the Resolution Approving the Disposition and Development Agreement among the Fontana Housing Authority, City of Fontana and Fontana Courtplace I Housing Partners, L.P. for the sale of Property for the construction of a 50 unit affordable family-apartment housing project and adopt California Environmental Quality Act findings concerning the adequacy of the previously adopted Mitigated Negative Declaration, and Mitigation, Monitoring, and Reporting Program and direct staff to file a Notice of Determination.
Mayor Warren opened the Public Hearing.
There was no written correspondence received.
Deputy City Manager Phillip Burum provided the staff report.
Council Member Cothran asked about income qualifications.
Deputy City Manager Phillip Burum clarified income qualifications as established by the U.S.
Department of Housing and Urban Development (HUD).
With no one interested to speak in favor or opposition of this item Mayor Warren closed the public hearing.
ACTION: Motion was made by Council Member/Authority Member Sandoval, seconded by Mayor Pro Tem/Chair Garcia and unanimously passed by a vote of 5-0 to approve staff recommendation on Public Hearing Item “D.” The motion carried by the following vote:
44
AYES: Warren, Garcia, Cothran, Roberts, and Sandoval; NOES: None; ABSTAIN: None ABSENT: None
ADJOURNMENT:
A. Adjournment
The meeting adjourned at 9:30 a.m. to the Regular City Council Meeting on December 12, 2023, at 2:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.
_____________________
Christina Rudsell
Deputy City Clerk
THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL ON DECEMBER 12TH, 2023.
_______________________
Germaine Key
City Clerk
45 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2651 Agenda Date: 12/12/2023
Agenda #: B. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1926 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1926, approving a Zoning District Map Amendment (ZCA No. 22-001) changing the zoning designation from Single-Family Residential (R-1) to MultiFamily Medium/High Density Residential (R-4) on approximately 6.4 acres located on the north side of Merrill, between Alder Avenue and Laurel Avenue.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1926 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO.1926
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO A MITIGATED NEGATIVE
DECLARATION, ZONING DISTRICT MAP AMENDMENT NO. 22-001 TO CHANGE THE ZONING DESIGNATION FOR APNS: 0246-151-50, -51, - 52, -56, -71, and -77 FROM SINGLE-FAMILY RESIDENTIAL (R-1) TO MULTI-FAMILY MEDIUM/HIGH DENSITY RESIDENTIAL (R-4) FOR A SITE COMPRISED OF APPROXIMATELY 6.4 ACRES LOCATED
NORTH OF MERRILL AVENUE BETWEEN ALDER AVENUE AND
LAUREL AVENUE.
WHEREAS, assessor parcel numbers 0246-151-50,-51, -56, -71, and 77, include six (6) parcels that were annexed from San Bernardino County and incorporated into the City of Fontana. Two (2) of the six (6) parcels were annexed on September 17, 1973 and the remaining four (4) parcels were annexed on September 18, 2006 (the “Project Site”); and WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”) and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, on January 25, 2022, the City of Fontana (“the City”) received an application from Jason Korengold on behalf of AP Acquisition LLC (“Applicant”), for a General Plan Amendment (“GPA No. 22-001”) to amend the General Plan land use designation on the north side of Merrill Avenue, between Alder Avenue and Laurel Avenue (Project Site) from Single-Family Residential (R-SF) to Multi-Family Medium/High Density Residential (R-MFMH), and a Zoning District Map Amendment (“ZCA No. 22- 001”) to change the zoning from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4) for approximately 4.6 gross acres. Both amendments together are known as Master Case Number 22-040 (“MCN 22-040”). The attached Exhibit “A” depicts the Zoning District Map Amendment; and, WHEREAS, the amendment to the Zoning District Map will assist the City in meeting its Regional Housing Needs Assessment (RHNA) number; and WHEREAS, the amendment to the Zoning District Map will contribute to a balanced and diverse neighborhood and associated amenities and services, as well as contribute to an infrastructure that will support a qualified workforce and attract business; and WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, pursuant to the California Environmental Act (CEQA), an Initial Study/Mitigated Negative Declaration and Mitigation Monitoring Program were published on August 25, 2023, and determined that with the implementation of recommend 47 Ordinance No.1926
mitigation measures no significant impacts would be caused by the project, therefore, a Mitigated Negative Declaration has been recommended for adoption; and WHEREAS, ZCA No. 22-001 is supported by 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, on September 19, 2023, the Fontana Planning Commission (“Planning Commission”) conducted a noticed public hearing on the Mitigated Negative Declaration, MMRP and MCN 22-040, received public testimony and evidence presented by the Applicant, City staff, and other interested parties and recommended approval to the City Council by Resolution No. 2023-033 with a vote of 4-0; and WHEREAS, on November 15, 2023, the City Council conducted a noticed public hearing on the Mitigated Negative Declaration, MMRP, and MCN 22-040 and received testimony from all parties and documentation from the Planning Commission’s public hearing on September 19, 2023; and
WHEREAS, on November 15, 2023, the City Council, per Resolution 2023-106, adopted the Mitigated Negative Declaration along with the MMRP for the project; and WHEREAS, based on the information presented, the testimony received, and the supporting documents in evidence for the Mitigated Negative Declaration, MMPR and MCN. 22-040, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan as referred herein; and WHEREAS, the City wishes to protect and preserve the quality of the life throughout the City through effective land use and planning.
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. Having considered the adopted Mitigated Negative Declaration and all written and oral evidence presented to the City Council , the Council finds that all environmental impacts of the Project has been address within the Mitigated Negative Declaration, and that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration.
Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the 48 Ordinance No.1926
preparation of a subsequent or supplemental CEQA document is not required for the Project.
SECTION 3. Zoning District Map Amendment Findings. The City Council hereby makes the following findings for ZCA No. 22-001 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:
Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.
Findings of Fact: The zoning designation change from Single-Family Residential (R-1) to Multi-Family Medium/High Density Residential (R-4) will allow for the construction of potentially 249 residential units in total as opposed to the current 32 units within this area. The surrounding streets are adequate for the future development of multi-family housing. The project will bring long-term growth to the City and will promote and motivate additional growth around this area. The zone change will allow for the development of a multi-family housing project which will be reviewed by the City’s Planning, Fire, and Building Departments. Additionally, the future development will be required to meet all Fire Codes, Building Codes, and the Fontana Municipal Code. Therefore, the zone change will promote public's health, safety, or general welfare.
SECTION 4. Zoning District Map Amendment Approval. Based upon the findings in Section 3, ZCA No. 22-001, the Zoning District Map will be amended from Single-Family (R-1) to Multi-Family Medium/High Density Residential (R-4) on the zoning district map, is necessary to protect or promote the public’s health, safety, or general welfare, and is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and is consistent with the General Plan.
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 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 49 Ordinance No.1926
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 12th day of December 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 15th 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:
ABSTAIN:
________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
50 A-1
“EXHIBIT A”
EXISTING AND PROPOSED ZONING LAND USE DESIGNATION - FOR THE ENTIRE PROJECT SITE COMPRISED OF SIX (6) PARCELS (APNS: 0246-151-50, -51, -52, -56, - 71, AND -77) FROM SINGLE-FAMILY RESIDENTIAL (R-1) TO MULTI-FAMILY MEDIUM/HIGH RESIDENTIAL (R-4)
51 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2652 Agenda Date: 12/12/2023
Agenda #: C. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1927 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1927, Approving a Zoning District Map Amendment (ZCA) No. 22-006 to update the Zoning District Map from Single-Family Residential (R-1) to FormBased Code (FBC) for the project site that is comprised of five (5) existing parcels (APNs: 0230-041- 33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1927 was introduced by a vote of 5-0 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO. 1927
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO A MITIGATED NEGATIVE
DECLARATION, ZONING DISTRICT MAP AMENDMENT NO. 22-006 TO UPDATE THE ZONING MAP FROM SINGLE-FAMILY RESIDENTIAL (R1) TO FORM-BASED CODE (FBC) FOR FIVE (5) PARCELS APNS: 0230- 041-33, -44, -52, -60, AND -61, TOTALING APPROXIMATELY 2.4 ADJUSTED GROSS ACRES.
WHEREAS, assessor parcel numbers 0230-041-33, -44, -52, -60, and -61 were annexed from San Bernardino County and incorporated into the City of Fontana on June 21, 2005 (Annex 2968); and
WHEREAS, On November 13, 2018 the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”); and
WHEREAS, on March 8, 2022, the City of Fontana (“the City”) received an application from SA Golden Investment, Inc. (“Applicant”), for five (5) existing lots on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue, more specifically known as APNs:
0230-041-33, -44, -52, -60, and -61 (“Project Site”), for a General Plan Amendment (“GPA No. 22-005”) to amend the land use designation illustrated on Exhibit 15.8 in Chapter 15 of the General Plan from Single-Family Residential (R-SF) to Walkable Mixed Use Corridor & Downtown (WMXU-1) to Walkable Mixed Use Corridor & Downtown (WMXU1) for the Project Site , a Zoning District Map Amendment (“ZCA No. 22-006”) to amend the Zoning District Map from Residential-Single Family (R-1) to Form-Based Code (FBC) for the Project Site, a Development Code Amendment (“ZCA No. 22-007”) to update the Form-Based Code map to identify the Project Site as a Route 66 Gateway sub district and a Design Review (DRP No. 22-020) to develop a new 24-unit multi-family project on APNs: 0230-041-52 and 60. All of the amendments together are known as Master Case Number 22-037 (“MCN 22-037”); and,
WHEREAS, the amendments to the Zoning District Map will contribute to additional residential dwelling units that will provide a sustainable community where future occupants of the Project Site could live and utilize the services in the area as anticipated in the General Plan; and
WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, pursuant to the California Environmental Act (CEQA), an Initial Study/Mitigated Negative Declaration (IS/MND) and Mitigation Monitoring and Reporting Program (MMRP) were published on August 9, 2023, and concluded that with mitigation, no significant impacts would be caused by the project, therefore, a Mitigated Negative Declaration has been recommended for adoption; and
53 Ordinance No.1927
WHEREAS, all the notices required by statute and the Fontana City Code have been given as required; and
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) conducted a noticed public hearing and received public testimony and evidence presented by the Applicant, City staff, and other interested parties at the Public Hearing held for the project, MND, MMRP, and MCN 22-037 and recommended approval with a vote of 3-0, to the City Council by Resolution No. 2023-036 and WHEREAS, on November 15, 2023, the City Council conducted a noticed public hearing on the project, MND, MMRP, and MCN 22-037, received testimony from all interested parties and documentation from the Planning Commission’s public hearing on October 17, 2023; and
WHEREAS, on November 15, 2023, the City Council, per Resolution 2023-107, adopted the Mitigated Negative Declaration along with the MMRP for the project; and WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held on November 15, 2023, for the project, MND, MMRP, and MCN 22-037, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan as referred herein.
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. Having considered the adopted Mitigated Negative Declaration and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the Project has been addressed within the Mitigated Negative Declaration, and that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration. Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project .
SECTION 3. Zoning District Map Amendment Findings. The City Council hereby makes the following findings for ZCA No. 22-006 in accordance with Section 30- 40 “Purpose” of the Fontana Zoning and Development Code:
Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when modification is viewed as appropriate in the context of generally accepted 54 Ordinance No.1927
planning principles, surrounding land uses, and the general plan.
Findings of Fact: The project includes an amendment to the Zoning District Map to change the zoning map for the location of the Project Site from Residential-Single Family (R-1) to Form-Base Code (FBC) for approximately 2.4 adjusted gross acres total.
The zoning district map amendment is consistent with the goals and policies of the Housing Element in the General Plan. The project is consistent with the following goals of the Housing Element:
Provide adequate housing to meet the needs of all residents in Fontana.
Provide a high standard of quality in existing affordable housing stock.
Furthermore, the project will meet the following policies of the Housing Element of the General Plan:
Goal No.1, Policy No. 1.1, by providing a “Establish a range of rental and for sale housing opportunities in the city” and Goal No. 1, Policy No. 1.3 – “Promote the development and access to housing affordable to all income levels in Fontana.” The amendment will present an opportunity for development to be constructed at a higher density which will allow the City to have a wider variety of housing types for residents. This amendment will increase the unit count and provide an opportunity for attainable or market rate housing. Also, this amendment will assist the City in meeting its Regional Housing Needs Assessment (RHNA) number.
This change will increase the unit count from the existing maximum of 12 residential units to 93 residential units. The amendment will increase the potential residential unit count by 61 units.
SECTION 4. Zoning District Map Amendment Approval. Based on the findings in Section 3, the City Council hereby approves ZCA No. 22-006 to re-designate the existing five (5) properties APNs: 0230041-33, -44, -52, -60, and -61, approximately 2.4 adjusted gross acres total from Residential Single--Family (R1) to Form-Based- Code (FBC) as shown as Exhibit “A” attached hereto and incorporated herein by reference as fully set forth 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 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.
55 Ordinance No.1927
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 12th day of December 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 15th 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:
ABSTAIN:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
56 A-1
“EXHIBIT A”
EXISTING AND PROPOSED ZONING DISTRICT MAP - FOR THE PROJECT SITE OF FIVE (5) EXISTING PROPERTIES, APNS: 0230-041-33, -44, -52, -60, AND -61, FROM RESIDENTIAL-SINGLE FAMILY (R-1) TO FORM-BASE CODE (FBC) Existing Zoning District – Single-Family (R-1)
Proposed Zoning District - Form-Base Code (FBC)
57 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2653 Agenda Date: 12/12/2023
Agenda #: D. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1928 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1928, Approving a Development Code Amendment (ZCA) No. 22-007 to change the Form-Based Code Map, Section No. 30- 406, to identify the subject properties as Route 66 Gateway sub-district for the project site that is comprised of five (5) existing parcels (APNs: 0230-041-33, -44, -52, -60, AND -61) located on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1928 was introduced by a vote of 5-0 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/7/2023
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ORDINANCE NO. 1928
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO A MITIGATED NEGATIVE
DECLARATION, DEVELOPMENT CODE AMENDMENT NO. 22-007 TO
CHANGE THE FORM-BASED CODE MAP TO IDENTIFY THE SUBJECT
PROPERTIES AS ROUTE 66 GATEWAY FOR FIVE (5) EXISTING
PARCELS, APNS: 0230-041-33, -44, -52, -60, AND -61, TOTALING APPROXIMATELY 2.4 ACRES.
WHEREAS, assessor parcel numbers 0230-041-33, -44, -52, -60, and -61, were annexed from San Bernardino County and incorporated into the City of Fontana on June 21, 2005 (Annex 2968); and
WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”); and
WHEREAS, on March 8, 2022, the City of Fontana (“the City”) received an application from SA Golden Investment, Inc. (“Applicant”), for five (5) existing lots on the east side of Banana Avenue approximately 270 feet south of the southeast corner of the intersection of Foothill Boulevard and Banana Avenue, more specifically known as APNs:
0230-041-33, -44, -52, -60, and -61 (“Project Site”), for a General Plan Amendment (“GPA No. 22-005”) to amend the land use designation illustrated on Exhibit 15.8 in Chapter 15 of the General Plan from Single-Family Residential (R-SF) to Walkable Mixed Use Corridor & Downtown (WMXU-1) for the Project Site , a Zoning District Map Amendment (“ZCA No. 22-006”) to amend the Zoning District Map from Residential-Single Family (R1) to Form-Based Code (FBC) for the Project Site, a Development Code Amendment (“ZCA No. 22-007”) to update the Form-Based Code map to identify the Project Site as a Route 66 Gateway sub district and a Design Review (DRP No. 22-020) to develop a new 24-unit multi-family project on APNs: 0230-041-52 and 60. All of the amendments together are known as Master Case Number 22-037 (“MCN 22-037”); and, WHEREAS, the amendment Development Code will contribute to additional residential dwelling units that will provide a sustainable community where future occupants of the project site could live and utilize the services in the area as anticipated in the General Plan; and
WHEREAS, the Development Code Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, pursuant to the California Environmental Act (CEQA), an Initial Study/Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP) were published on August 9, 2023, and concluded that, with mitigation, no significant impacts would be caused by the project, therefore, a MND has been recommended for adoption; and
59 Ordinance No. 1928
WHEREAS, all the notices required by statute and the Fontana City Code have been given as required; and,
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) conducted a noticed Public Hearing and received public testimony and evidence presented by the Applicant, and other interested parties, for the project MND, MMRP, and MCN 22-037 and recommended approval with a vote of 3-0 to the City Council by Resolution No. 2023-036; and
WHEREAS, on November 15, 2023, the City Council conducted a noticed public hearing on the project MND, MMRP and MCN 22-037,received testimony from all parties and documentation from the Planning Commission’s public hearing on October 17, 2023; and
WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held on November 15, 2023 for the project MND, MMRP, and MCN 22-037, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan as referred herein.
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. The City Council hereby adopts the Mitigated Negative Declaration along with the MMRP for the proposed project. The City Council finds that the Mitigated Negative Declaration contains a complete and accurate reporting of all the environmental impacts associated with the Project. The City Council further finds that the Mitigated Negative Declaration has been completed in compliance with CEQA, 2019 Local Guidelines for Implementing the California Environmental Quality Act, and the State CEQA Guidelines.
SECTION 3. Development Code Amendment Findings. The City Council hereby makes the following findings for Development Code Amendment (ZCA) No. 22- 007 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:
Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the general plan.
60 Ordinance No. 1928
Findings of Fact: The project includes a Development Code Amendment (“ZCA No. 22-007”) to update the Form-Based Code map to identify the Project Site as a Route 66 Gateway sub district, for the properties of APNs:
0230-041-33, -44, -52, -60, and -61, approximately 2.4 adjusted gross acres total.
The proposed amendment is consistent with the goals and policies of the Housing Element in the General Plan. The project is consistent with the following goals of the Housing Element.
Provide adequate housing to meet the needs of all residents in Fontana.
Provide a high standard of quality in existing affordable housing stock.
Furthermore, the project will meet the following policies of the Housing Element of the General Plan:
Goal No.1, Policy No. 1.1, by providing a “Establish a range of rental and for sale housing opportunities in the city” and Goal No. 1, Policy No. 1.3 – “Promote the development and access to housing affordable to all income levels in Fontana” The amendment will present an opportunity for development to be constructed at a higher density which will allow City to have a wider variety of housing types for residents. This amendment will increase the unit count and provide opportunity for attainable or market rate housing.
SECTION No. 4. Development Code Amendment Approval. Based on the findings in Section 3, the City Council hereby approves Development Code Amendment (ZCA) No. 22-007 to change the Form Based Code Map, Section No. 30-406, to identify the subject properties as Route 66 Gateway sub district on APNs: 0230-041-33, -44, -52, -60, and -61, totaling approximately 2.4 adjusted gross acres, as shown as Exhibit “A” attached hereto and incorporated herein by reference as fully set forth herein.
SECTION No. 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 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 No. 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.
61 Ordinance No. 1928
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 12th day of December 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 15th 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:
ABSTAIN:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
62 A-1
“EXHIBIT A”
EXISTING AND PROPOSED FORM-BASED CODE SUBDISTRICTS FOR A PROPERTY COMPRISED FOR FIVE (5) EXISTING PARCELS, APNS: 0230-041-33, - 44, -52, -60, AND -61, TOTALING APPROXIMATELY 2.4 ADJUSTED GROSS ACRES Existing Form-Base Code Subdistrict Map – N/A
Proposed Form-Base Code Subdistrict Map – Route
66 Gateway
Form-Based Code Sub-District Map Legend
63 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2654 Agenda Date: 12/12/2023
Agenda #: E. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1929 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1929, Approving a Specific Plan Amendment No. 22- 003, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to change 18.8 acres located west of Catawba Avenue, east of Poplar Avenue and north and south of Rose Avenue from Residential Trucking District (RTD) to Slover East Industrial District (SED.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1929 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
The project includes a Development Agreement that provides for a public benefit fee of $2,084,901.00.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO. 1929
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 15, 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 15, 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 65 Ordinance No.1929
hearing held on November 15, 2023, the City Council found that the amendments and 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 the passage thereof, shall be published by the City Clerk at least once in the Fontana 66 Ordinance No.1929
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 12th day of December 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 15th day of November, 2023, and was finally passed and adopted not less than five days thereafter on the 12 th
day of December, 2023, by the following vote to wit:
AYES:
NOES:
ABSENT:
ABSTAIN:
_______________________________________
City Clerk of the City of Fontana
_______________________________________
Mayor of the City of Fontana
ATTEST:
________________________________________
City Clerk
67 A-1
EXHIBIT “A”
SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT
EXISTING
68 A-2
SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT
PROPOSED
69 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2655 Agenda Date: 12/12/2023
Agenda #: F. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1930 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1930, Approving Development Agreement No. 23-003 to include payment of a public benefit fee.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1930 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
The project includes a Development Agreement that provides for a public benefit fee of $2,084,901.00.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/6/2023
powered by Legistar™ 70
ORDINANCE NO.1930
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 71 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 15, 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 15, 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;
72 (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. 73 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 12
th day of December 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 74 by the City Council and was introduced at a regular meeting on the 15th 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:
ABSTAIN:
City Clerk of the City of Fontana
Mayor of the City of Fontana
ATTEST:
75 EXHIBIT "A"
DEVELOPMENT AGREEMENT
76 2
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 15, 2023 for reference purposes
77 3
78 4
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 15, 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
79 5
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 approved by City pursuant to Resolution No. 85-217, adopted on November 5, 1985, 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 80 6
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, 81 7
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. 2023-108 November 15, 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 November 15, 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.
82 8
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 83 9
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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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 85 11
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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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 87 13
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 88 14
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 89 15
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. 90 16
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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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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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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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. 94 20
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 95 21
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 96 22
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 97 23
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.
98 24
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. 99 25
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 100
26 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]
101
27 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
102
28 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)
103
29 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)
104
30 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 14 105
31 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 106
32 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.
107
33 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 108
34 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 109
35 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 110
36 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) 111
37 EXHIBIT B
TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND POPLAR SOUTH DC, LLC
EXHIBIT B – Map Showing Property and its location:
112
38 113
EXHIBIT C
TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND POPLAR SOUTH DC, LLC
Existing Development Approval
114
40 115
41 116
42 117
43 118
44 119
45 120
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2656 Agenda Date: 12/12/2023
Agenda #: G. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1931 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1931, approving a Zoning District Map Amendment (ZCA) No. 23-004 to change the zoning designation of the entire project site (Sites A and B - APNS:
0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) from Open Space - Resource (OS-R) to Light Industrial (M-1) comprised of approximately 25 acres.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1931 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO. 1931
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO A MITIGATED NEGATIVE DECLARATION, ZONING DISTRICT MAP AMENDMENT NO. 23-004 TO CHANGE THE
ZONING DESIGNATION FOR THE PROJECT SITE (SITES A AND B - APNS: 0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) FROM OPEN SPACE - RESOURCE (OS-R) TO LIGHT INDUSTRIAL (M-1) FOR A SITE COMPRISED OF APPROXIMATELY 25 ACRES
WHEREAS, assessor parcel numbers 0232-171-08, -09, -12, -13, and -14 were annexed from San Bernardino County and incorporated into the City of Fontana on July 21, 1965, and assessor parcel numbers APNs: 0232-171-05, -06, and 07 were annexed from San Bernardino County and incorporated into the City of Fontana on December 18, 1974; and
WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”) and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, on August 31, 2023, the City of Fontana’s (“the City”) Engineering Department initiated General Plan Amendment (GPA) No. 23-003 to amend Figure 15.9 (Land Use Category) in Chapter 15 (Land Use, Zoning and Urban Design) of the General Plan for approximately 25 acres located on the southwest corner of Arrow Boulevard and Tokay Avenue (“Sites A and B” together “Project Site”) from Open Space (“OS”) to Light Industrial (I-L) and to include an emergency shelter overlay district designation for Site A; Zoning District Map Amendment (ZCA) No. 23-004 to change the zoning for the Project Site from Open Space Resource (“OS-R”) to light industrial (“M-1”) and Development Code Amendment (ZCA) No. 23-005 to add an Emergency Shelter Overlay District designation for Site A. The attached Exhibit “A” depicts the Zoning District Map Amendment to re designate the entire project site (Sites A and B) from Open Space - Resource (OS-R) to Light Industrial (M-1); and,
WHEREAS, the Project Site is divided into two parts, Site A and Site B, each comprised of four parcels. Site A encompasses four (4) parcels (APNs: 0232-171-05, - 06, -07, and -08), that front Arrow Boulevard and Site B encompasses four (4) parcels (APNs: 0232-171-09, -12, -13, and -14), that front Tokay Avenue; and, WHEREAS, the amendments to the Zoning District Map will contribute to mixture of industrial, service, and residential uses that will contribute to a sustainable community where future workers at the project site could live and utilize the services in the area as anticipated in the General Plan; and
WHEREAS, all the notices required by statute and the Fontana City Code have been given as required; and
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Ordinance No. 1931
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing for the project MND, MMRP, and MCN 23- 092, received public testimony and evidence presented by the Applicant, City staff, and other interested parties and recommended approval to the City Council by Resolution No. 2023-039 by a vote (3:0); and
WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, on November 15, 2023, per Resolution 2023-110, the City Council adopted the MND and approved the MMRP; and
WHEREAS, on November 15, 2023, the City Council conducted a noticed public hearing on the project MND, MMRP, and MCN 23-092, received testimony from all parties and documentation from the Planning Commission’s public hearing on October 17, 2023; and
WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held for the project MND, MMRP, and MCN 23-092, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan.
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. Having considered the adopted Mitigated Negative Declaration and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the Project have been addressed within the Mitigated Negative Declaration, and that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration. Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.
SECTION 3. Zoning District Map Amendment Findings. The City Council hereby makes the following findings for ZCA No. 23-004 in accordance with Section 30- 31 “Purpose” of the Fontana Zoning and Development Code:
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Ordinance No. 1931
Finding: The purpose and intent is to keep an updated General Plan to reflect the current desires and needs of the citizens for the longterm growth of the City.
Findings of Fact: The project includes a General Plan Amendment for the land use designation of Sites A and B (from OS to I-L) a Zoning District Map Amendment to rezone the same (from OS-R to M-1) and a General Plan and Development Code Amendment to add an Emergency Shelter Overlay District designation for Site A.
The project is consistent with Subsection A of the Actions outlined in the City’s first Goal under Section E (Policies and Actions to Achieve the Goals) of Chapter 13 of the General Plan- to “[e]stablish a balanced of industrial and manufacturing development along with services, especially in sectors with living wage jobs.” The site is currently designated as OS-R and a portion of the Project Site, Site B, was once used for mining. The property has since been vacant as the mining operations in Site B have ceased. The land use redesignation will facilitate future revitalization and development possibilities for the property, which will contribute to opportunities for living wage jobs in an area developed with industrial, service and residential uses.
The project is consistent with Subsection A of the Actions outlined in the City’s third Goal under Section E of Chapter 13 of the General Plan—to “refine zoning to encourage mixed-use development where appropriate and create standards and procedures to implement connectivity improvements in new development areas.” The project site is within 100 feet of the walkable mixed-use downtown and downtown corridors (WMXU-1) area where residential, service, commercial and some light industrial uses are envisioned in the General Plan. Modifying the designation in this area would contribute to a mixture of industrial, service and residential uses that will be developed with sidewalks to provide connectivity to other nearby uses and to contribute to a sustainable community where future workers of industrial, service and residential workers could live, walk, and utilize the services in the area as anticipated in the General Plan.
The land use re-designation is consistent with Goal No. 1 on page 4- 10, Policy 1N, Section 4 of the Housing Element: Amend Fontana Zoning Code for a variety of housing types. The project includes the addition of an Emergency Shelter Overlay District designation for Site A. This Emergency Shelter Overlay District will allow for a variety of housing types including supportive and transitional housing 124
Ordinance No. 1931
uses for properties in this overlay within the Light Industrial (M-1) zoning district.
SECTION 4. Zoning District Map Amendment Approval. Based on the findings in Section 3, the City Council hereby approves ZCA No. 23-004 to modify the Zoning District Map current designation of the Project Site from Open Space - Resource (OS-R) to Light Industrial (M-1) as shown as Exhibit “A” attached hereto and incorporated herein by reference as fully set forth 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 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 12th day of December 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 15th 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:
ABSTAIN:
125
Ordinance No. 1931
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
126
A-1
“EXHIBIT A”
EXISTING AND PROPOSED ZONING LAND USE DESIGNATION - FOR THE PROJECT SITE (SITES A & B) COMPRISED OF EIGHT (8) PARCELS (APNS: 0232-171-05, -06, -07, -08, -09, -12, -13, AND -14) FROM OPEN SPACE - RESOURCE (OS-R) TO LIGHT INDUSTRIAL (M-1)
127
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2657 Agenda Date: 12/12/2023
Agenda #: H. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1932 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1932, approving a Development Code Amendment (ZCA) No. 23-005 to amend Section 30-651(A), Figure 1 of the Zoning and Development Code to add an Emergency Shelter Overlay District designation to Site A comprised of four (4) parcels (APNs:
0232-171-05, -06, -07, and -08) that includes approximately 7 acres.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1932 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO. 1932
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO A MITIGATED NEGATIVE DECLARATION, DEVELOPMENT CODE AMENDMENT NO. 23-005 TO AMEND SECTION
30-651 (A), FIGURE 1 OF THE ZONING AND DEVELOPMENT CODE TO
ADD AN EMERGENCY SHELTER OVERLAY DISTRICT DESIGNATION
FOR SITE A COMPRISED OF FOUR (4) PARCELS (SITE A - APNS: 0232- 171-05, -06, -07, AND -08) THAT INCLUDES APPROXIMATELY 7 ACRES WHEREAS, assessor parcel numbers 0232-171-08, -09, -12, -13, and -14 were annexed from San Bernardino County and incorporated into the City of Fontana on July 21, 1965, and assessor parcel numbers APNs: 0232-171-05, -06, and 07 were annexed from San Bernardino County and incorporated into the City of Fontana on December 18, 1974; and
WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”) and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, on August 31, 2023, the City of Fontana’s (“the City”) Engineering Department initiated General Plan Amendment (GPA No. 23-003) to amend Figure 15.9 (Land Use Category) in Chapter 15 (Land Use, Zoning and Urban Design) of the General Plan for approximately 25 acres located on the southwest corner of Arrow Boulevard and Tokay Avenue (“Sites A and B” together “Project Site”) from Open Space (“OS”) to Light Industrial (I-L) and to include an emergency shelter overlay district designation for Site A; Zoning Code (District Map) Amendment (ZCA No. 23-004) to change the zoning for the Project Site from Open Space Resource (“OS-R”) to light industrial (“M-1”) and Development Code Amendment (ZCA No. 23-005) to add an Emergency Shelter Overlay District designation for Site A. The amendments together are known as Master Case Number 23-092 (MCN 23-092). The attached Exhibit “A” depicts ZCA No. 23-005 amending Figure 1 of Section 30-651 (a) of the Zoning and Development Code to add an Emergency Shelter Overlay District designation for a portion of the project site comprised of four (4) parcels (Site A); and
WHEREAS, the Project Site is divided into two parts, Site A and Site B, each comprised of four parcels. Site A encompasses four (4) parcels (APNs: 0232-171-05, - 06, -07, and -08), that front Arrow Boulevard and Site B encompasses four (4) parcels (APNs: 0232-171-09, -12, -13, and -14), that front Tokay Avenue; and WHEREAS, the amendment to the Development Code will allow for a variety of housing types including supportive and transitional housing uses; and WHEREAS, the amendments to the Development Code will contribute to a mixture of industrial, service, and residential uses that will contribute to a sustainable community 129
Ordinance No. 1932
where future workers at the project site could live and utilize the services in the area as anticipated in the General Plan; and
WHEREAS, the Development Code Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, pursuant to the California Environmental Act (CEQA), an Initial Study (IS) /Mitigated Negative Declaration (MND) and Mitigation Monitoring Program were prepared. A Notice of Intent to Adopt the IS/Mitigated Negative Declaration was issued on September 22, 2023, providing for a public comment period from September 22, 2023, to October 17, 2023. No comments were received. The IS concludes that no significant impacts would be caused by the project, therefore, a MND was recommended for adoption; and
WHEREAS, all the notices required by statute and the Fontana City Code have been given as required; and
WHEREAS, on October 17, 2023, the Fontana Planning Commission (“Planning Commission”) conducted a noticed public hearing on the project MND, MMRP and MCN 23-092, and received public testimony and evidence presented by the Applicant, City staff, and other interested parties and recommended approval to the City Council by Resolution No. 2023-039 by a vote (3:0); and
WHEREAS, on November 15, 2023, the City Council conducted a noticed public hearing on the project MND, MMRP and MCN 23-092, received testimony from all parties and documentation from the Planning Commission’s public hearing on October 17, 2023; and
WHEREAS, on November 15, 2023, the City Council, per Resolution No.2023- 110, adopted the Mitigated Negative Declaration along with the MMRP for the project; and
WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held for the project MND, MMRP, and MCN 23-092 the City Council finds that the amendments and project are in conformance with the goals and policies of the General Plan.
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. Having considered the adopted Mitigated Negative Declaration and all written and oral evidence presented to the City Council, the Council 130
Ordinance No. 1932
finds that all environmental impacts of the Project have been addressed within the Mitigated Negative Declaration, and that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration. Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.
SECTION 3. Development Code Amendment Findings. The City Council hereby makes the following findings for ZCA No. 23-005 in accordance with Section 30-31 “Purpose” of the Fontana Zoning and Development Code:
Finding: The purpose and intent is to keep an updated General Plan to reflect the current desires and needs of the citizens for the longterm growth of the City.
Findings of Fact: The project includes a General Plan Amendment for the land use designation of Sites A and B (from OS to I-L) a Zoning District Map Amendment to rezone the same (from OS-R to M-1) and a General Plan and Development Code Amendment to add an Emergency Shelter Overlay District designation for Site A
The project is consistent with subsection A of the Actions outlined in the City’s first Goal under Section E (Policies and Actions to Achieve the Goals) of Chapter 13 of the General Plan- to “[e]stablish a balanced of industrial and manufacturing development along with services, especially in sectors with living wage jobs.” The site is currently designated as OS-R and a portion of the Project Site, Site B, was once used for mining. The property has since been vacant as the mining operations in Site B have ceased. The land use redesignation will facilitate future revitalization and development possibilities for the property, which will contribute to opportunities for living wage jobs in an area developed with industrial, service and residential uses.
The project is consistent with subsection A of the Actions outlined in the City’s third Goal under Section E of Chapter 13 of the General Plan to “[r]efine zoning to encourage mixed-use development where appropriate and create standards and procedures to implement connectivity improvements in new development areas.” The project site is within 100 feet of the walkable mixed-use downtown and downtown corridors (WMXU-1) area where residential, service, commercial and some light industrial uses are envisioned in the General Plan. Modifying the designation in this area would contribute to a mixture of industrial, service and residential uses that 131
Ordinance No. 1932
will be developed with sidewalks to provide connectivity to other nearby uses and to contribute to a sustainable community where future workers of industrial, service and residential workers could live, walk, and utilize the services in the area as anticipated in the General Plan.
The land use re-designation is consistent with Goal No. 1 on page 4- 10, Policy 1N, Section 4 of the Housing Element: Amend Fontana Zoning Code for a variety of housing types. The project includes the addition of an Emergency Shelter Overlay District designation for Site A. This Emergency Shelter Overlay District will allow for a variety of housing types including supportive and transitional housing uses for properties in this overlay within the Light Industrial (M-1) zoning district.
SECTION 4. Development Code Amendment Approval. Based on the findings in Section 3, the City Council hereby approves ZCA No. 23-005 for the addition of an Emergency Shelter Overlay District designation for Site A as shown as Exhibit “A” attached hereto and incorporated herein by reference as fully set forth 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 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 12th day of December 2023.
READ AND APPROVED AS TO LEGAL FORM:
_________________________________________
132
Ordinance No. 1932
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 15th 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:
ABSTAIN:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
133
A-1
“EXHIBIT A”
Section 30-651 - Emergency shelter overlay district (ESO) regulations. (a) Applicability. The provisions of this division shall apply to light industrial (I-L) land use designations as specified in Figure 1.
Existing Figure 1 Proposed Figure 1
134
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2658 Agenda Date: 12/12/2023
Agenda #: I. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1933 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1933, approving, pursuant to the certified Environmental Impact Report for the Citrus/Oleander Industrial Commerce Center (State Clearinghouse No. 2022110389), Zoning District Map Amendment No. 23-006 to change the zoning designation for APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel where no development is currently proposed, from Residential Planned Community (R-PC) and Multi-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1933 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
The project includes a Development Agreement that provides for a public ..Endbenefit fee of $3,192,624 and the owner shall remit payment of an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) to fund the City’s design and construction of an Action Sports Park at Martin Tudor Regional Park.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO. 1933
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA,
APPROVING, PURSUANT TO THE CERTIFIED ENVIRONMENTAL
IMPACT REPORT FOR THE CITRUS/OLEANDER INDUSTRIAL
COMMERCE CENTER (STATE CLEARINGHOUSE NO. 2022110389),
ZONING DISTRICT MAP AMENDMENT (ZONE CHANGE) NO. 23-006
CHANGING THE ZONING DESIGNATION for (APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, INCLUDING A FIVE-ACRE PARCEL WHERE NO
DEVELOPMENT IS CURRENTLY PROPOSED, FROM RESIDENTIAL
PLANNED COMMUNITY (R-PC) AND MULTI-FAMILY MEDIUM/HIGH
DENSITY RESIDENTIAL (R-4) TO SOUTHWEST INDUSTRIAL PARK
(SWIP) SPECIFIC PLAN, SLOVER EAST INDUSTRIAL DISTRICT FOR APPROXIMATELY 29.4 ACRES LOCATED WEST OF CITRUS AVENUE,
EAST AND WEST OF OLEANDER AVENUE AND NORTH OF SANTA ANA AVENUE.
WHEREAS, on October 25, 2023, applicant, Acacia Real Estate Group Inc., submitted a request for General Plan Amendment No. 23-004 to change the land use designation from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District on approximately 29.4 adjusted gross acres of 18 parcels (APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and - 32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel that excludes development) (see attached Exhibit “A”); Specific Plan Amendment 23-004 to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire 29.4 acres and designate the property with Slover East industrial District (SED) land use designation; Zoning District Map Amendment No. 23-006 to rezone the parcels from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District; Tentative Parcel Map No. 20709 (TPM No. 22-009R1) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030R1) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031R1) (Building No. 3) to process three parcel maps to consolidate six (6) parcels into one parcel for the development of project sites for Building No. 1 and Building No. 2, and the consolidation of five (5) parcels into one for the development of the project site for Building No. 3; and approving Design Review No. 22-029R1 (Building No. 1), Design Review No. 22-061R1 (Building No. 2), and Design Review No. 22-062R1 (Building No. 3) for the site and architecture review for three buildings totaling approximately 521,030 square feet with associated landscaping and parking (Project); and Development Agreement No. 23-005 to include a review of the development agreement for a public benefit fee of $3,192,624.00 and the full cost of design and construction of the sports park at Martin Tudor Park, which is currently estimated at up to $1,500,000.00; and,
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Ordinance No.1933
WHEREAS, the applicant is proposing to amend the boundaries of the SWIP specific plan boundaries and zoning classifications to allow for the development of the industrial commerce buildings; and
WHEREAS, the subject site includes 18 parcels that were annexed from San Bernardino County into the City of Fontana on May 13, 1966 and September 19, 2006; and,
WHEREAS, the subject property is to be developed below the assumed capacity as identified in the approved Housing Element, however there is still sufficient capacity in the city at the “extremely low/very low” income category to meet the City’s Regional House Needs Assessment (RHNA) allocation; and,
WHEREAS, to comply with California’s Housing Crisis Act of 2019 (SB 330), the project will participate in the City of Fontana Municipal Code Chapter 30 Article XV “No Net Loss Density Bonus/Replacement Program.” Pursuant to FMC section 30-967, the Unit Bank cannot exceed 2,200 units. The Unit Bank is currently 1,280 units. These 507 units will be added to the Unit Bank increasing the number of units in the Unit Bank to 507 which is less than the 2,200 units authorized by FMC. The units in the Unit Bank shall be available as density bonuses for other residential properties throughout the city. The program will enable, on a first come, first serve basis, density bonuses of up to 20% on other parcels until these 1787 residential units are reclaimed within future planned residential projects; and,
WHEREAS, all the notices required by statute or the Fontana City Code have been given as required; and,
WHEREAS, on June 20, 2023, the Planning Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties at a public hearing held on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389), General Plan Amendment No. 22-004, Zoning District Map Amendment No. 22-005, Development Agreement No. 23-005, Tentative Parcel Map No. 20709 (TPM No. 22-009) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031) (Building No. 3), and Design Review No. 22-029 (Building No. 1), Design Review No. 22- 061 (Building No. 2), and Design Review No. 22-062 (Building No. 3), and after carefully considering all information pertaining to the project, including the staff report, findings, and all information, evidence, and testimony presented, the Planning Commission recommended approval of the Project to the City Council; and WHEREAS, on July 25, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389), General Plan Amendment No. 22-004, Zoning District Map (Zone Change) Amendment No. 22-005, Development Agreement No. 23-005, Tentative Parcel Map No. 20709 (TPM No. 22-009) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22- 137
Ordinance No.1933
030) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031) (Building No. 3), and Design Review No. 22-029 (Building No. 1), Design Review No. 22-061 (Building No. 2), and Design Review No. 22-062 (Building No. 3), received testimony and after consideration, City Council denied the project with a vote of 3-2 at its regularly scheduled public hearing.
WHEREAS, Pursuant Sections 30-39 (General Plan Amendment, Time limitations) and Section 30-74 (Specific Plan Amendment, Time limitations) of the Zoning and Development Code both state that if an application (for a general plan amendment or a specific plan amendment, respectively) is denied by either the Planning Commission or City Council, another application of the same nature and effecting the same property shall not be filed with a period of one year from the date of denial. However, the aforementioned section also provides that a hearing body denying the application may give permission for a new application to be filed if a change in circumstances or plans indicate that a new application is warranted.
WHEREAS, On October 4, 2023, John Shardlow with Allen Matkins Leck Gamble Mallory & Natsis LLP, submitted a request for permission to file a new application based on revisions to the proposed project on behalf of the Applicant, this request is attached hereto as Attachment No. 1. In the request, Mr. Shardlow notes a change in plans for the Citrus and Oleander Avenue at Santa Ana project and proposes to submit a revised project for consideration that will address input from the City and the public, including an enhanced environmental design and additional community benefits.
WHEREAS, the Applicant’s request is for permission to file an application reflecting revisions to the previously considered plans. Allowance of such a submittal for both a General Plan amendment and a Specific Plan amendment is therefore within the City Council’s authority.
WHEREAS, on October 24, 2023, the City Council Approved the reconsideration with a vote of 4-1.
WHEREAS, on November 15, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389), General Plan Amendment No. 23-006, Zoning District Map (Zone Change) Amendment No. 23-004, Development Agreement No. 23-085, Tentative Parcel Map No. 20709 (TPM No. 22-009R1) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030R1) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031R1) (Building No. 3), and Design Review No. 22-029R1 (Building No. 1), Design Review No. 22-061R1 (Building No. 2), and Design Review No. 22-062R1 (Building No. 3), received testimony and the supporting documents in evidence, and found that the Zoning District Map Amendment is in conformance with the goals and policies of the General Plan to provide a community that is balanced between residential, commercial, and industrial that is developed to high standards and provides diverse economic and social opportunities for our citizens and those who wish to invest here; and 138
Ordinance No.1933
WHEREAS, Zoning District Map Amendment (Zone Change) Amendment No. 23- 006 is consistent with the goals and policies of the City of Fontana, General Plan Goal 7 of Chapter 15, “support high-quality development in design standards and land use decisions.”
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The recitals are true and correct and incorporated herein by this reference.
SECTION 2. CEQA. The City Council hereby 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 and the State CEQA Guidelines. The City Council finds that the EIR reflects the independent judgment and analysis of the City. The City Council declares that no evidence of new significant impacts or any new information of “substantial importance” as defined by State CEQA Guidelines section 15088.5, has been received by the City after circulation of the Draft EIR that would require recirculation. Therefore, the City Council hereby certifies the EIR based on the entirety of the record of proceedings.
SECTION 3. Zoning District Map Amendments Findings. The City of Fontana City Council hereby makes the following findings for Zoning District Map Amendment (Zone Change) No. 23-006 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:
Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.
Findings of Fact: The applicant is proposing to change the zoning designation from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District. This would allow for the construction of three (3) industrial commerce center buildings totaling approximately 521,030 square feet. This development will assist with growing industrial commerce demand in the City of Fontana and the surrounding area. The proposed zone change will provide consistency with the zoning and development to the south and west of the subject site and will provide safe and attractive development.
139
Ordinance No.1933
SECTION 4. Zoning District Map Amendment Approval. The City Council approves Zoning District Map Amendment (Zone Change) No. 23-004 to amend the zoning designation for APNs 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, this includes a five-acre parcel that does not include development, from Residential Planned Community (R-PC) and Multiple-Family Medium/High Density Residential (R-4) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 29.4 acres as shown on Exhibit “A”, and attached hereto and by this reference incorporated as though fully set forth 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 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 12th day of December 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 15th 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:
140
Ordinance No.1933
AYES:
NOES:
ABSENT:
ABSTAIN:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
ATTEST:
_________________________________________
City Clerk
141
A-1
“EXHIBIT A”
EXISTING AND PROPOSED ZONING MAP DESIGNATION -
RESIDENTIAL PLANNED COMMUNITY (R-PC) AND MULTIPLE-FAMILY MEDIUM/HIGH DENSITY RESIDENTIAL (R-4) TO SOUTHWEST INDUSTRIAL PARK (SWIP) SPECIFIC PLAN, SLOVER EAST INDUSTRIAL DISTRICT
142
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2659 Agenda Date: 12/12/2023
Agenda #: J. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1934 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1934, Approving a Specific Plan Amendment No. 23- 004, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire 29.4 acres located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Aven.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1934 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
The project includes a Development Agreement that provides for a public ..Endbenefit fee of $3,192,624 and the owner shall remit payment of an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) to fund the City’s design and construction of an Action Sports Park at Martin Tudor Regional Park.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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Ordinance No.1934
ORDINANCE NO. 1934
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FONTANA APPROVING SPECIFIC PLAN AMENDMENT NO. 23-004, AN
AMENDMENT TO SOUTHWEST INDUSTRIAL PARK (SWIP) SPECIFIC
PLAN, AMEND THE SOUTHWEST INDUSTRIAL PARK (SWIP)
SPECIFIC PLAN LAND USE PLAN TO EXPAND THE SWIP BOUNDARY TO INCLUDE THE ENTIRE 29.4 ACRES (NO DEVELOPMENT IS
CURRENTLY PROPOSED ON APN 0255-011-15 (5-ACRE SITE))
PROJECT SITE LOCATED WEST OF CITRUS AVENUE, EAST AND
WEST OF OLEANDER AVENUE AND NORTH OF SANTA ANA
AVENUE.
WHEREAS, the applicant submitted a request for Specific Plan Amendment No. 23-004, to amend the Southwest Industrial Park (SWIP) Specific Plan Land Use Plan to expand the SWIP boundary to include the entire 29.4 acres (no development is currently on APN 0255-011-15 (5-acre site)) located west of Citrus Avenue, east and west of Oleander Avenue and north of Santa Ana Avenue. The Specific Plan Amendment will allow development of three industrial commerce center buildings totaling approximately 540,849 square feet and associated on-site and off-site improvements; and, WHEREAS, on June 20, 2023, the Planning Commission received public testimony and evidence presented by the applicant, City staff, and other interested parties, at the Public Hearing held with respect to Specific Plan Amendment No. 22- 002,General Plan Amendment (GPA) No. 22-004, Zoning District Map Amendment (Zone Change) No. 22¬005, and Development Agreement (DA) No. 23-005, Tentative Parcel Map No. 20709 (TPM No. 22¬009) (Building No. 1), Design Review (DRP) No. 22-029 (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030) (Building No. 2), Design Review No. 22-061 (Building No. 2), Tentative Parcel Map No. (TPM No. 22-031) (Building No. 3), Design Review No. 22-062 (Building No. 3), and after carefully considering all information pertaining to the project, including the staff report, findings, and all of the information, evidence, and testimony presented at this public hearing, voted 5-0 to recommend approval to City Council by Resolution No. PC 2023-025; and, WHEREAS, on July 25, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389), General Plan Amendment No. 22-004, Zoning District Map (Zone Change) Amendment No. 22-005, Development Agreement No. 23-005, Tentative Parcel Map No. 20709 (TPM No. 22-009) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22- 030) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031) (Building No. 3), and Design Review No. 22-029 (Building No. 1), Design Review No. 22-061 (Building No. 2), and Design Review No. 22-062 (Building No. 3), received testimony and after consideration, City Council denied the project with a vote of 3-2 at its regularly scheduled public hearing.
WHEREAS, Pursuant Sections 30-39 (General Plan Amendment, Time limitations) and Section 30-74 (Specific Plan Amendment, Time limitations) of the Zoning 144
Ordinance No.1934
and Development Code both state that if an application (for a general plan amendment or a specific plan amendment, respectively) is denied by either the Planning Commission or City Council, another application of the same nature and effecting the same property shall not be filed with a period of one year from the date of denial. However, the aforementioned section also provides that a hearing body denying the application may give permission for a new application to be filed if a change in circumstances or plans indicate that a new application is warranted.
WHEREAS, On October 4, 2023, John Shardlow with Allen Matkins Leck Gamble Mallory & Natsis LLP, submitted a request for permission to file a new application based on revisions to the proposed project on behalf of the Applicant, this request is attached hereto as Attachment No. 1. In the request, Mr. Shardlow notes a change in plans for the Citrus and Oleander Avenue at Santa Ana project and proposes to submit a revised project for consideration that will address input from the City and the public, including an enhanced environmental design and additional community benefits.
WHEREAS, the Applicant’s request is for permission to file an application reflecting revisions to the previously considered plans. Allowance of such a submittal for both a General Plan amendment and a Specific Plan amendment is therefore within the City Council’s authority.
WHEREAS, on October 24, 2023, the City Council Approved the reconsideration with a vote of 4-1.
WHEREAS, on November 15, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389), General Plan Amendment No. 23-006, Zoning District Map (Zone Change) Amendment No. 23-004, Development Agreement No. 23-085, Tentative Parcel Map No. 20709 (TPM No. 22-009R1) (Building No. 1), Tentative Parcel Map No. 20708 (TPM No. 22-030R1) (Building No. 2), and Tentative Parcel Map No. 20707 (TPM No. 22-031R1) (Building No. 3), and Design Review No. 22-029R1 (Building No. 1), Design Review No. 22-061R1 (Building No. 2), and Design Review No. 22-062R1 (Building No. 3), received testimony and the supporting documents in evidence, and found that the Zoning District Map Amendment is in conformance with the goals and policies of the General Plan to provide a community that is balanced between residential, commercial, and industrial that is developed to high standards and provides diverse economic and social opportunities for our citizens and those who wish to invest here; and WHEREAS, based on the information presented to the City Council at the Public hearing the City Council found that the amendments and 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, 145
Ordinance No.1934
CALIFORNIA DOES HEREBY ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The recitals are true and correct and incorporated herein by this reference.
SECTION 2. CEQA. The City Council hereby 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 and the State CEQA Guidelines. The City Council finds that the EIR reflects the independent judgment and analysis of the City. The City Council declares that no evidence of new significant impacts or any new information of “substantial importance” as defined by State CEQA Guidelines section 15088.5, has been received by the City after circulation of the Draft EIR that would require recirculation. Therefore, the City Council hereby certifies the EIR based on the entirety of the record of proceedings.
SECTION 3. Specific Plan Amendment Findings. The City of Fontana City Council hereby makes the following findings for Specific Plan Amendment No. 23-004 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 to the existing Southwest Industrial Park Specific Plan (SWIP) by expanding the SWIP boundary to include the entire 29.4 acres to allow for the potential development of three industrial commerce buildings totaling 532,104 square feet.
This development will provide attractive development with quality modern type of architecture and vast landscaping. This type of development will enhance the industrial areas with an attractive street scene and high-quality industrial development. This type of development will be consistent with the areas to the south and west.
SECTION 4. Specific Plan Amendment Approval. Specific Plan Amendment No. 23-004 is hereby approved and the Southwest Industrial Park Specific Plan is amended for to establish the project within the Slover East Industrial District as shown on Exhibit “A”, and 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 the passage thereof, shall be published by the City Clerk at least once in the Fontana 146
Ordinance No.1934
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 12th day of December 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 15th 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:
ABSTAIN:
_________________________________________
City Clerk of the City of Fontana
_________________________________________
Mayor of the City of Fontana
147
Ordinance No.1934
ATTEST:
_________________________________________
City Clerk
148
A-1
EXHIBIT “A”
SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND
USE MAP AMENDMENT
149
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2660 Agenda Date: 12/12/2023
Agenda #: K. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1935 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1935, Approving Development Agreement No. 23-085 to include payment of public benefit fee in the amount of $3,192,624.00 and payment of an additional $1,500,000.00 to fund design and construction of an Action Sports Park at Martin Tudor Regional Park.
COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.
DISCUSSION:
Ordinance No. 1935 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting.
FISCAL IMPACT:
The project includes a Development Agreement that provides for a public ..Endbenefit fee of $3,192,624 and the owner shall remit payment of an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) to fund the City’s design and construction of an Action Sports Park at Martin Tudor Regional Park.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/4/2023
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ORDINANCE NO.______
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FONTANA APPROVING, PURSUANT TO THE CERTIFIED
CITRUS/OLEANDER INDUSTRIAL COMMERCE CENTER
EIR (STATE CLEARINGHOUSE NO. 2022110389), THE
DEVELOPMENT AGREEMENT 23-085 BETWEEN THE
CITY OF FONTANA AND ACACIA REAL ESTATE GROUP,
INC., WHICH PROVIDES A PUBLIC BENEFIT FEE IN THE
AMOUNT OF $3,192,624.00 AND THE OWNER SHALL
REMIT PAYMENT OF AN ADDITIONAL ONE MILLION FIVE
HUNDRED THOUSAND DOLLARS ($1,500,000.00) TO
FUND THE CITY’S DESIGN AND CONSTRUCTION OF AN
ACTION SPORTS PARK.
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 Property, Acacia Real Estate Group, Inc. (“Developer”) has proposed to enter into a development agreement concerning the Property (“Development Agreement”), to provide assurances that the Property can be developed without disruption caused by a change in the City’s planning policies and requirements except as provided in the Development Agreement, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and
WHEREAS, the City of Fontana, a California Municipal Corporation ("City") and Developer are supportive of entering into a Development Agreement whereby Developer will acquire fee title to certain real property (the "Property"); and WHEREAS, Developer's interest in the Property, including that interest to be conveyed pursuant to the DA, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and ATTACHMENT NO. 29
151
2 of 5
WHEREAS, Developer proposes the development of the Property for three industrial buildings totaling approximately 532,104 square feet, including up to 44,000 square feet of office space, entailing front end investment in the planning, entitlement and development of the Property to achieve the goals of the City's General Plan ("General Plan"), as further described and conditioned in the Development Agreement (collectively, such development shall be referred to herein as the "Project"); and WHEREAS, City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan; and WHEREAS, City has found that the development agreement attached hereto as Exhibit A and incorporated herein by reference ("Development Agreement") is consistent with City's General Plan and it has been reviewed and evaluated in accordance with Section 30-102 of the City Development Code; and
WHEREAS, City has determined that by entering into the Development Agreement: (i) City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan and (ii) City will benefit from increased employment and industrial opportunities created by the Project for residents of the City; and
WHEREAS, the original application was submitted on May 18, 2022, for a General Plan Amendment (GPA) No. 22-004, Zone Change Application (ZCA) No. 22-005, Specific Plan Amendment (SPA) No. 22-002, Development Agreement (DA) No. 23-005, Design Review (DRP) No. 22-029 (Building No. 1), Tentative Parcel Map (TPM) No. 20709 (TPM No. 22-009, Building No. 1), Design Review No. 22-061 (Building No. 2), Tentative Parcel Map (TPM) No. 20708 (TPM No. 22-030, Building No. 2), Design Review No. 22-062 (Building No. 3), Tentative Parcel Map (TPM) No. 20707 (TPM No. 22-031, Building No. 3). - a request for the site and architectural review for the construction of three (3) industrial commerce center buildings having maximum sizes of 151,618 square feet (s.f), 196,336 s.f., and 192,895 s.f. (total of 504,849 s.f.); on three sites with a total project site of approximately 24.8 gross acres; and a Development Agreement No. 23-005 to include a review of the development agreement for a public benefit fee of $2,145,608.25.
WHEREAS, on June 20, 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 the Citrus/Oleander Industrial Commerce Center project (State Clearinghouse No. 2022110389), MCN No. 22-053 and recommended approval to the City Council by Resolution No. 2023-025; and
WHEREAS, on July 25, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389) and MCN No. 22-053, where City Council received evidence and testimony concerning the project and denied the project with a vote of 3-2; and 152
3 of 5
WHEREAS, Sections 30-39 (General Plan Amendment, Time limitations) and 30- 74 (Specific Plan Amendment, Time limitations) of the Zoning and Development Code state that if an application is denied by either the Planning Commission or City Council, another application of the same nature and effecting the same property shall not be filed with a period of one year from the date of denial. However, the aforementioned section also provides that a hearing body denying the application may give permission for a new application to be filed if a change in circumstances or plans indicate that a new application is warranted; and
WHEREAS, On October 4, 2023, John Shardlow with Allen Matkins Leck Gamble Mallory & Natsis LLP, submitted a request on behalf of the Applicant for permission to file a new application based on revisions to the proposed project; and WHEREAS, on October 24, 2023, the City Council Approved the reconsideration with a vote of 4-1; and
WHEREAS, on October 25, 2023, the Applicant submitted a request for a General Plan Amendment No. 23-004 (GPA No. 23-004) to change the land use designation from Residential Planned Community (R-PC) and Multi-Family Medium/High Residential (R-MFMH) to General Industrial (I-G) on approximately 29.4 adjusted gross acres of a 18 parcels (APNs: 0255-011-13, -14, -15, -18, -19, -25, -26, -27, -28, -29, -30, -31, and -32, and 0255-021-17, -18, -22, -23, and -24, including a five-acre parcel that excludes development); Specific Plan Amendment No. 23-004 (SPA No. 23-004) to expand the Southwest Industrial Park (SWIP) Specific Plan boundary to include the entire property and designate the property Slover East industrial District (SED) ; Zoning District Map Amendment No. 23-006 (ZCA No. 23-006) to rezone the property from Residential Planned Community (R-PC) and Multi-Family Medium/High Density Residential (R-4) to SWIP, Tentative Parcel Map No. 22-009R1 (TPM No. 20709) to consolidate six (6) parcels located at the northeast corner of Citrus Avenue and Santa Ana Avenue into one parcel to develop the project site for Building No. 1, Tentative Parcel Map No. 22-030R1 (TPM No. 20708) to consolidate six (6) parcels located at the northwest corner of Oleander Avenue and Santa Ana Avenue into one parcel to develop the project site for Building No. 2, Tentative Parcel Map No. 22-031R1 (TPM No. 20707 ) to consolidate five (5) parcels located at the northeast corner of Oleander Avenue and Santa Ana Avenue into one parcel to develop the project site for Building No. 3 , Design Review No. 22-029 for the site and architecture review of Building No. 1, Design Review No. 22-061R1 for the site and architecture review of Building No. 2, Design Review No. 22-062R1 for the site and architecture review of Building 3 totaling approximately 532,104 square feet with associated landscaping and parking; and Development Agreement No. 23-085 to include a review of the development agreement for a public benefit fee of $3,192,624.00 and the owner shall remit payment of an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) to fund the City’s design and construction of an Action Sports Park. All of the amendments together are known as Master Case No. 23-100 (MCN 23-100); and WHEREAS, on November 15, 2023, the City Council held a duly noticed public hearing on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 153
4 of 5
2022110389) and MCN No. 23-100, received testimony and evidence concerning the project and found it to be in conformance with the goals and policies of the General Plan, found that the project provides a community that is balanced between residential, commercial and industrial that is developed to high standards, and found that the project provides diverse economic and social opportunities for our citizens and those who wish to invest in the City of Fontana (“City”); and
WHEREAS, on November 15, 2023, pursuant to Resolution 2023-112 the City Council certified the Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389) and adopted the Mitigated Monitoring and Reporting Program (“MMRP”) for the revised project; and
WHEREAS, the terms and conditions of the Development Agreement have undergone review by City at publicly noticed hearings and have been found to be fair, just and reasonable, and consistent with the General Plan. Further, City finds that:
(i) the economic interests of the City's citizens and the public health, safety and welfare will be best served by entering into the Development Agreement; (ii) the Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located; (iii) the Development Agreement is consistent with the General Plan; (iv) the Development Agreement is in conformity with the public convenience, general welfare and good land use practice;
(v) the Development Agreement will not be detrimental to the public health, safety and general welfare; and
(vi) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the Property or any other property; and WHEREAS, all the notices required by statute and the FMC have been given as required.
THE CITY COUNCIL OF THE CITY OF FONTANA 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.), on Citrus/Oleander Industrial Commerce Center EIR (State Clearinghouse No. 2022110389) was prepared for development, including the 154
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General Plan Amendment and Tentative Vesting Map. The City Council has certified the Citrus/Oleander Industrial Commerce Center EIR and adopted the MMRP 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. Development Agreement Findings. Based on the entire record before the City Council and all written and oral evidence presented, 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.
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.
6. The payment of a public benefit fee from the Developer to the City to offset certain private benefits received by Developer under the DA.
7. The revitalization of an underdeveloped site.
8. The development of onsite infrastructure upgrades that would not occur otherwise.
9. The generation of additional property tax.
10.The stimulation of adjacent areas in the City by introducing new industrial facility and opportunities.
11.The implementation of numerous City planning and economic development policies which benefit the health and fiscal welfare of the City and its residents.
12.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 4. Development Agreement Approval. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves the Development Agreement, a copy of which is on file with the City Clerk and incorporated by reference herein attached as “Exhibit A” for entitled "Development Agreement No. 23- 085 between Acacia Real Estate Group, Inc. and the City of Fontana, a California municipal corporation.
SECTION 5. Recordation. 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.
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SECTION 6. 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 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.
SECTION 8. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.
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 15
th 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 15th 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
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Mayor of the City of Fontana
ATTEST:
City Clerk
157
Exhibit A
EXHIBIT "A"
DEVELOPMENT AGREEMENT
158
Exhibit A
Recorded at request of: )
Clerk, City Council )
City of Fontana )
)
When recorded return to: )
City of Fontana )
8353 Sierra Avenue )
Fontana, CA 92335 )
Attention: City Clerk )
)
Exempt from Filing Fees, Government Code Section 6103
DEVELOPMENT AGREEMENT NO. 23-085
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF FONTANA
a California Municipal Corporation
(“City”)
and
ACACIA REAL ESTATE GROUP, INC.,
(“Owner”)
159
Exhibit A
DEVELOPMENT AGREEMENT NO. 23-085
This Development Agreement (hereinafter “Agreement”) is entered into effective on the date it is recorded with the San Bernardino County Recorder (hereinafter the “Effective Date”) by and among the City of Fontana, a California municipal corporation (hereinafter, “CITY”), and Acacia Real Estate Group, Inc. (hereinafter, “OWNER”):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement with respect to that certain real property located north of Santa Ana Avenue, east of Citrus Avenue, and west of Oleander Avenue (APNs: 0255-021-17, -18, -22 thru -24, 0255-011- 13, -14, -18, -19, -25 thru -32). as more particularly described on Exhibit “A” to this Agreement (the “Property”), and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and
WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development Approvals described in this Agreement, the City Council of the City of Fontana reviewed, considered, and certified the Environmental Impact Report (“EIR”) for the Citrus/Oleander Industrial Center of which the Project, as that term is defined below, is a part, and made findings concerning the mitigation measures for the Project, and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and
WHEREAS, DEVELOPER has filed an application for, and the City Council has approved Master Case (MCN) No. 23-100, Design Review (DRP) No. 22-029R1 (Building No. 1), Tentative Parcel Map (TPM) No. 22-009R1 (Building No. 1), Design Review No. 22-061R1 (Building No. 2) Tentative Parcel Map (TPM) No. 22-030R1 (Building No. 2), Design Review No. 22-062R1 (Building No. 3), Tentative Parcel Map (TPM) No. 22- 031R1 (Building No. 3), General Plan Amendment (GPA) No. 23-004, Zone District Map 160
Exhibit A
Amendment Application (ZCA) No. 23-006, and Specific Plan Amendment No. 23-004 (collectively, the “Project”).
WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and any Specific Plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 “Agreement” means this Development Agreement.
1.1.2 “CITY” means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.
1.1.3 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the 161
Exhibit A
maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.4 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) conditional use permits and design review permits;
(b) tentative parcel maps;
(c) General Plan and Zoning Code amendments; and,
(d) grading, encroachment and building permits.
1.1.5 “Development Exaction” means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.
1.1.6 “Development Impact Fee” means a monetary exaction other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park “in lieu” fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment plan has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code).
1.1.7 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations, as those terms are defined herein, applicable to development of the Property.
1.1.8 “Effective Date” means the date the ordinance approving this Agreement becomes effective.
1.1.9 “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date.
162
Exhibit A
1.1.10 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date.
1.1.11 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.
1.1.12 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.
1.1.13 “OWNER” means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property.
1.1.14 “Project” means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.
1.1.15 “Property” means the real property described on Exhibit “A” as shown on to this Agreement.
1.1.16 “Public Benefit Fee” means the one-time public benefit fee described in Section 4.3 of this Agreement.
1.1.17 “Reservations of Authority” means the rights and authority excepted from the assurances and rights provided to OWNER under this Agreement and reserved to CITY under Section 3.6 of this Agreement.
1.1.18 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
163
Exhibit A
1.1.19 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit “A” — Legal Description of all three Properties.
Exhibit “B” — Map showing Property and its location.
Exhibit "C” - Map showing location of the Pump Track, Mountain Bike Trails, and Operation Facility
Exhibit “D” – Map Showing location of the Race Track
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the Property or a portion thereof.
2.3 Term. The initial term of this Agreement shall commence on the Effective Date and shall continue for a period of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. Notwithstanding the foregoing, the term of this Development Agreement may be extended for an additional five (5) years following expiration of the initial term, provided the following have occurred:
(a) OWNER provides at least ninety (90) days written notice to CITY prior to the expiration of the initial term; and
(b) OWNER shall have obtained building permits for at least sixty-seven percent (67%) of the gross area of the industrial building(s) contemplated by the Project; and
(c) OWNER is not then in uncured default of this Agreement.
The initial term and, if and upon extension, the 5-year extension, shall sometimes be referred to herein collectively as the “Term.”
The term of this Agreement shall not be considered to run and shall toll for any period in which the Project is being challenged or litigated by a third-party.
2.4 Assignment.
164
Exhibit A
2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410 et seq., to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement, in a form substantially similar to that attached hereto as Exhibit “A” which has been deemed reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.
Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.
2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring owner shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the Property.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.
165
Exhibit A
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.
2.4.4 Partial Release of Purchaser, Transferee or Assignee of Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot, which has been finally subdivided as provided for in the Development Plan and for which a commercial or industrial plot plan for development of the lot has been finally approved pursuant to the Development Plan, may submit a request, in writing, to CITY to release said lot from the obligations under this Agreement relating to all other portions of the property. Within thirty (30) days of such request, CITY shall review, and if the above conditions are satisfied shall approve the request for release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.4 shall cause, or otherwise affect, a release of OWNER from its duties and obligations under this Agreement.
2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy or temporary certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.
2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and the Development Agreement Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Any amendment of this Agreement which has been requested by OWNER shall only be processed and considered by the CITY upon the payment of the applicable processing charge.
2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
166
Exhibit A
(a) Expiration of the stated term of this Agreement as set forth in Section
2.3. (b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.
Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY buildings on which construction has not yet begun shall be refunded to OWNER by CITY.
2.7 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:
If to CITY:
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600
167
Exhibit A
Copy to:
Best, Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441
If to OWNER:
Acacia Real Estate Group, Inc.
Attn: David B. Pittman
260 Newport Center Drive, Suite 100
Newport Beach, CA 92660
Telephone: (714) 270-0777
Copy to:
Freeman, Freeman, Smiley
Attn: Jon S. Grizel
5 Park Plaza, Suite No. 650
Irvine, CA 92614
Telephone: (949) 252-2715
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and 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 168
Exhibit A
applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, CITY shall exercise its discretion in accordance with the Development Plan, and as provided by this Agreement including, but not limited to, the Reservations of Authority. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters.
3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed. Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v.
City of Camarillo, (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4. Notwithstanding anything to the contrary set forth in this Section 3.3 or in this Agreement, City acknowledges that OWNER shall have no obligation to construct the Project and that OWNER shall not be subject to any penalty nor shall City be entitled to any legal or equitable remedy, including, without limitation, a claim for specific performance of this Agreement, if OWNER determines not to construct the Project for any reason.
3.4 Phasing Plan. Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan.
3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit “E”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, 169
Exhibit A
(b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.6 Reservations of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Processing fees and charges of every kind and nature imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations, policies, and rules governing construction standards and specifications including, without limitation, the CITY’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan.
In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes. (e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement. 170
Exhibit A
(f) Regulations which are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property.
3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations which do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).
3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.
3.7 Public Works. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction.
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, 171
Exhibit A
the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by OWNER and upon OWNER’S provision of adequate security for costs CITY may reasonably incur, CITY shall negotiate the purchase of the necessary real property interests to allow OWNER to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. OWNER shall pay all costs associated with such acquisition or condemnation proceedings. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.
3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.
3.10 Tentative Parcel Map Extension. Notwithstanding the provisions of Section 66452.6 of the Government Code, no tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be granted an extension of time except in accordance with the Existing Land Use Regulations.
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. 172
Exhibit A
4. PUBLIC BENEFITS.
4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER which should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.
4.2 Development Impact Fees.
4.2.1 Amount and Components of Fee(s). Development Impact Fees (DIF) shall be paid by OWNER. The DIF amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new DIF or amend the amounts of existing DIF. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, DIF established or imposed by such other public agencies, even though such DIF may be collected by CITY.
4.2.2 Time of Payment. The fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permits. No fees shall be payable for building permits issued prior to the Effective Date of this Agreement, but the fees required pursuant to Subsection 4.2.1 shall be paid prior to the re-issuance or extension of any building permit for which such fees have not previously been paid.
4.2.3 Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.2.1 for the dedication of land, the construction of improvements or the payment of fees.
4.3 Public Benefit Fee. Prior to the issuance of the Building Permit for any building within the Property, as consideration for the privileges conferred by this Agreement, OWNER shall pay to the City a one-time public benefit fee totaling $3,192,624.00.
4.4 Martin Tudor Regional Park Action Sports Park. Prior to the issuance of the first Certificate of Occupancy for a building to be constructed within the Property, as consideration for the privileges conferred by this Agreement, OWNER shall remit payment of an additional One Million Five Hundred Thousand Dollars ($1,500,000.00) to fund the City’s design and construction of an Action Sports Park, as defined in Section 4.4(a) below, at Martin Tudor Regional Park.
173
Exhibit A
a. The Action Sports Park shall include, but may not be limited to, three primary components: 1) a pump track, 2) a mountain bike jump course track, and 3) a Remote-Control (“RC”) car racetrack.
i. The pump track and the mountain bike jump course track (collectively, the “Bike Tracks”) shall be located in the areas depicted on Exhibit “C”, attached hereto and incorporated herein by reference.
1. The Bike Tracks shall each occupy an area consisting of not less than 20,000 square feet in total track area.
2. The Bike Tracks shall be fully enclosed by fencing designed to control access to the Bike Tracks.
3. A building consisting of not less than 2,000 square feet for the operation and control of the entry to Bike Tracks shall be included in the design and shall be located in close proximity to the entry to the Bike Tracks. The building shall include connections to permanent utilities which includes a sanitary septic system, water, electricity, phone and internet.
4. Not less than two restrooms shall be included in the design, which shall be located in close proximity to the Bike Track entry.
a. Restrooms must be connected to permanent
electricity, water and sanitary septic system.
i. Temporary restrooms are not an acceptable
alternative.
b. Restrooms shall be capable of being locked when not
in service.
5. Shaded Bleachers or other shaded seating options allowing for not less than 30 observers shall be included.
6. Security cameras shall be installed providing video
surveillance opportunities for the Bike Track and operational building area. Camera system design and components shall be subject to review and approval of the Fontana Police Department.
7. Bike Tracks shall be designed and constructed as continuous lap tracks.
8. Pump Track riding surface shall be constructed with concrete, asphaltic concrete, or other comparable material, subject to review and approval of the Community Services Department ii. The RC car racetrack shall occupy an area consisting of not less than 10,000 square feet and shall be located in the area depicted on Exhibit “D”, attached hereto and incorporated herein by reference.
1. A raised platform for use by the RC car operators, not more than 36” in total height, shall be required.
a. Raised platform shall meet appropriate ADA standards for access.
174
Exhibit A
b. Raised platform shall include appropriate features for shading of the platform.
2. RC racetrack shall be designed and constructed as a
continuous lap track.
3. Shaded Bleachers capable of seating not less than 20 observers shall be included in close proximity to the RC racetrack.
5. FINANCING OF PUBLIC IMPROVEMENTS.
If deemed appropriate, CITY and OWNER will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public infrastructure facilities required as part of the Development Plan. CITY also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, OWNER may be reimbursed to the extent that OWNER spends funds or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.
6. REVIEW FOR COMPLIANCE.
6.1 Periodic Review. The Planning Director shall review this Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by OWNER with the terms of the Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the Planning Director, within 30 days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually or as deemed necessary by resolution of the City Council.
6.2 Special Review. The City Council may order a special review of compliance with this Agreement at any time. The Planning Director shall conduct such special reviews.
6.3 Procedure.
(a) During either a periodic review or a special review, OWNER shall be required to demonstrate good faith compliance with the terms of the Agreement. The burden of proof on this issue shall be on OWNER.
(b) Upon completion of a periodic review or a special review, the Planning Director shall submit a report to the City Council setting forth the evidence 175
Exhibit A
concerning good faith compliance by OWNER with the terms of this Agreement and his or her recommended finding on that issue.
(c) If the City Council finds on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Agreement, the review shall be concluded.
(d) If the City Council makes a preliminary finding that OWNER has not complied in good faith with the terms and conditions of this Agreement, the Council may modify or terminate this Agreement as provided in Section 6.4 and Section 6.5. Notice of default as provided under Section 7.4 of this Agreement shall be given to OWNER prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.
6.4 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.3, CITY determines to proceed with modification or termination of this Agreement, CITY shall give written notice to OWNER of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not CITY proposes to terminate or to modify the Agreement; and,
(c) Such other information as is reasonably necessary to inform OWNER of the nature of the proceeding.
6.5 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard.
OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on OWNER. If the City Council finds, based upon substantial evidence, that OWNER has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement to impose such conditions as are reasonably necessary to obtain compliance with the terms of this Agreement. . The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.
6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement 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 176
Exhibit A
date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder.
Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.
7. DEFAULT AND REMEDIES.
7.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
7.2 Specific Performance. Except as set forth in Section 3.3, above, the parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 7.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.
177
Exhibit A
7.3 Release. Except for non-damage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.
7.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsection 6.5 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
7.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
8. THIRD PARTY LITIGATION.
8.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan existed as of the Effective Date of this Agreement (“General Plan”), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’s determination.
CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial 178
Exhibit A
determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.
8.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.
8.3 Indemnity. In addition to the provisions of 8.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including reasonable attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions.
CITY may in its discretion participate in the defense of any such legal action.
8.4 Environmental Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, and independent contractors for any 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 reasonable attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.
8.5 Reservation of Rights. With respect to Sections 8.2, 8.3 and 8.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including reasonable attorneys’ fees, upon billing and accounting therefor. 179
Exhibit A
8.6 Survival. The provisions of this Sections 8.1 through 8.6, inclusive, shall survive the termination of this Agreement.
9. MORTGAGEE PROTECTION.
9.1 The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.
Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations 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. 180
Exhibit A
9.2. Deposit of Legal Defense Costs. In the event of any litigation or legal challenge filed against City as described in this Section 9, then within twenty (20) calendar days following written demand by City therefor, Owner shall deposit with City funds into a deposit account maintained by City (“Fund”) to reimburse City for City’s costs and expenses, including without limitation attorney’s fees, ultimately incurred by City to defend any such claim, action, or proceeding. The initial deposit shall be the sum of fifty thousand dollars ($50,000). The Fund, once established, shall at all times contain an amount necessary to cover not less than three (3) months of budgeted or anticipated expenditures by City relating to City’s defense of such claim, action, or proceeding, including any and all appeals from decisions related thereto, as such budgeted or anticipated expenditures are determined by City in its sole and absolute discretion. For such purposes, City may from time to time, in City’s sole and absolute discretion, make written demand upon Owner for deposit of additional funds by Owner into the Fund, in which event Owner shall deposit such additional funds into the Fund within twenty (20) calendar days following written demand by City.
10. MISCELLANEOUS PROVISIONS.
10.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.
10.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
10.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement.
Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
181
Exhibit A
10.4 Governing Law; Interpretation. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
10.6 Singular and Plural. As used herein, the singular of any word includes the plural.
10.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners. Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.
10.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element.
10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
10.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.
10.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, epidemics, pandemics, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control, (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of 182
Exhibit A
this Agreement shall not be extended under any circumstances for more than five (5) years.
10.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.
10.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
10.14 Counterparts. This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.
10.15 Jurisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.
10.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.
10.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
183
Exhibit A
10.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.
10.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).
10.20 Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’s issuance of such certificates.
10.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below.
184
Exhibit A
OWNER
ACACIA REAL ESTATE GROUP, INC.,
a California corporation
By:
David Pittman
Its: President
Dated:
185
Exhibit A
ACKNOWLEDGMENT
A notary public or other officer completing
this certificate verifies only the identity of
the individual who signed the document to
which this certificate is attached, and not
the truthfulness, accuracy, or validity of that
document.
State of California
County of )
On before me,
______________________________
_______
(insert name and title of the
officer)
personally appeared
_________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _________________________________ (Seal)
186
Exhibit A
CITY:
CITY OF FONTANA, a California
municipal corporation
By:_____________________________
Acquanetta Warren, Mayor
Dated: __________________
By: ____________________________
Matthew C. Ballantyne, City Manager
ATTEST:
By:_____________________________
Germaine Key, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
________________________________
City Attorney
187
Exhibit A
ACKNOWLEDGMENT
A notary public or other officer completing
this certificate verifies only the identity of
the individual who signed the document to
which this certificate is attached, and not
the truthfulness, accuracy, or validity of that
document.
State of California
County of )
On before me,
______________________________
_______
(insert name and title of the
officer)
personally appeared
_________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature _________________________________ (Seal)
5703203.2
27967-940
188
Exhibit A
“EXHIBIT A”
189
Exhibit A
“EXHIBIT B”
MASTER SITE PLAN
190
Exhibit A
“EXHIBIT C”
191
Exhibit A
“EXHIBIT D”
192
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2661 Agenda Date: 12/12/2023
Agenda #: L. Category: Consent Calendar
FROM:
Planning Department
SUBJECT:
Adoption of Ordinance No. 1936 (Second Reading)
RECOMMENDATION:
Second Reading / Adoption of Ordinance No. 1936, Approving Master Case No. 23-090 and Municipal Code Amendment No. 23-003 amending Chapter 30 that will modify multiple sections, including modification of appeal hearing timeframes, addition of language to provide for minor and major planned unit developments (PUDs), modification of language related to open space requirements, modification of garage door design requirements; inclusion of language to reduce landscape setback requirements to accommodate bus turn outs and deceleration lanes, addition of language to streamline development standards within Medium Density Residential (R-2) and Multiple Family (R-3) zoning districts, and additional recreational facilities options within the Multi-Family Medium/High Density (R-4) and Multi-Family High Density Residential (R-5) zoning districts.
COUNCIL GOALS:
· Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by establishing a quick, consistent development process. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.
DISCUSSION:
Ordinance No. 1936 was introduced by a vote of 4-1 at the November 15, 2023, Regular City Council meeting. The attached ordinance incorporates amendments adopted at the November 15, 2023 meeting related to building height and setbacks.
FISCAL IMPACT:
No fiscal impact.
MOTION:
Approve staff recommendation.
City of Fontana Page 1 of 1 Printed on 12/6/2023
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