Fontana City Council
February 13, 2024

Tuesday, February 13, 2024
2:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Revised Agenda
Ord. No. 1942 Reso. No. 2024-005
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 Revised Agenda February 13, 2024 Welcome to a meeting of the Fontana City Council.

Welcome to a meeting of the Fontana City Council. Meetings are held at 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 Council Chambers 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 accommodation 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 at the City Clerk’s Office.

Para traducción en Español, comuniquese con la oficina,“City Clerk” al (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.

CALL TO ORDER/ROLL CALL:

A. 2:00 P.M. Call To Order/Roll Call:

INVOCATION/PLEDGE OF ALLEGIANCE:

A. Invocation/Pledge of Allegiance:

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:

2 City Council Meeting Revised Agenda February 13, 2024 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.

A. Approval of Minutes 21-2798
Approve the minutes of the January 23, 2024, Regular City Council Meeting and the February 1, 2024, Special City Council Meetings.

City Council Meeting Minutes 01-23-2024.pdf
Special City Council Meeting Minutes Goal Setting
02-01-2024.pdf
Special City Council Meeting 02-01-2024.pdf
Attachments:

B. Adoption of Ordinance No. 1940, Pertaining to Amend the West End Specific Plan to add “Escape Rooms” (Second
Reading)
21-2796
Second Reading / Adoption of Ordinance No. 1940, approving Master Case No. 23-094 and Specific Plan Amendment (SPA) No. 23-003 to amend the West End Specific Plan to add “Escape Room” as a permitted use within the Light Industrial District (BP2) District in the West End Specific Plan; and that the reading of the title constitutes the first reading thereof.

Ordinance No.1940.docxAttachments:

C. Adoption of Ordinance No. 1941, Pertaining to a Development Agreement with Fontana Responsible and Compliance Retail, LLC (Second Reading)
21-2797
Second Reading / Adoption of Ordinance No. 1941, approving a Development Agreement with Fontana Responsible and Compliant Retail, LLC, concerning a retail cannabis business and Direct Staff to File a Notice of Exemption.

Ord. No. 1941 docx.docxAttachments:

D. Accept Additional Recreational Trails Program Grant Funds for the Construction of the San Sevaine Trail, Phase 1, Segment 2 Project
21-2669

1. Accept additional grant funds from the State of California Department of Parks and Recreation in the amount of $1,000,000.00 to construct the San Sevaine Trail, Phase 1, Segment 2 Project.

2. Authorize the City Manager, or designee, to execute the Amendment to the Agreement with the State of California Department of Parks and Recreation for the San Sevaine Trail, Phase 1, Segment 2 Project.

3 City Council Meeting Revised Agenda February 13, 2024 Vicinity Map
Contract Amendment
Attachments:

E. Final Acceptance of the Blanchard Avenue Sidewalk Gap Project
21-2755
Accept as complete the work performed by SNZ Contractors, Inc for the construction of the Blanchard Avenue Sidewalk Gap Project (#37603115) and approve the final construction amount of $109,273.75 (Bid No. SB-126-DE-23).

Vicinity MapAttachments:

F. Final Acceptance of the Foothill Boulevard Pavement
Rehabilitation Project, from East Avenue to Hemlock Avenue and All Streets South of Foothill Boulevard to County Line 21-2765
Accept as complete the work performed by Matich Corporation for the Foothill Boulevard Pavement Rehabilitation Project (#37604130) and approve the final construction amount of $3,097,309.28 (Bid No. SB-117-DE-23).

Vicinity Map.pdfAttachments:

G. Family Homelessness Challenge Grant Round 2 Application 21-2769 Authorize the City Manager, or his designee, to execute and transmit any documents necessary to ensure the City's timely submittal of the Family Homelessness Challenge Grant Round 2 Application
H. Police Department Monthly Information Update 21-2784 Accept the Police Department monthly information update for December 2023.

December 2023 Report for City Council Rev.pptxAttachments:

I. Prohousing Incentive Pilot Program Resolution Authorizing Submittal of Application and Other Grant Related Documents. 21-2790

1. Adopt Resolution No. 2024-005 a resolution of the City Council of the City of Fontana authorizing application for, and receipt of, up to $1,090,000 of Prohousing Incentive Program Funds.

2. Authorize the City Manager to execute and transmit any documents necessary or appropriate to ensure the City's timely submission of the Prohousing Incentive Pilot Program application.

PIP Application Resolution.docxAttachments:

J. Homeless Housing, Assistance and Prevention Program
(HHAP-4) Round 4 Grant Application
21-2801
Authorize the City Manager, or his designee, to execute and transmit any documents necessary to ensure the City's San Bernardino County Office of

4 City Council Meeting Revised Agenda February 13, 2024 Homeless Services Homeless Housing, Assistance and Prevention Program Round 4 Grant Application
K. Award and approve agreement for management and operation of Stage RED.
21-2803

1. Award bid (DS-24-16-SP) and authorize the City Manager to execute the agreement with ASM Global and Madison Entertainment for operational and management services for Stage RED.

2. Approve and Authorize the City Manager and/or his designee(s) to make non-material changes to the agreement and execute any future amendments required for the operation of Stage RED.

Stage Red Operating Agreement with ASM 2.5.24 draft-c1.docAttachments:

L. Accept Donation to Public Works Utilities and Streets Division 21-2806 Accept Donation of a LineLazer V 3900 Line Striper from Goldstar Asphalt Products to Public Works Utilities and Streets Division.

Goldstar raffle prize.pdfAttachments:

M. Approve the Sale of Real Property by the Successor Agency to the City of Fontana.
21-2809
Approve the Purchase of Real Property Identified as APN 0228-301-51 - Located at Citrus And South Highland Avenues - by The City of Fontana and Authorizing the City Manager To Negotiate and Execute a Purchase and Sale Agreement with the Successor Agency to the Fontana Redevelopment Agency Purchase and Sale Agreement SA Draft-c1.docAttachments:

N. Dedication of Fire Station 81 in honor of veteran Fontana Fire Department Engineer Robert E. Hartness
21-2814
Approve the dedication of Fire Station 81 in honor of veteran Fontana Fire Department Engineer Robert E. Hartness
O. Adoption of Resolution No. 2024-006 ratifying the Director of Emergency Services' Proclamation of Existence of a Local Emergency
21-2824

1. Ratify the proclamation of the existence of a local emergency within the City of Fontana as a result of a powerful, slow moving, atmospheric river that struck California beginning February 3, 2024;

2. Adopt Resolution No. 2024-006, proclaiming the existence of a local emergency and waive the full reading.

5 City Council Meeting Revised Agenda February 13, 2024 FONTANA_-_DECLARATION_OF_LOCAL_EMERGENCY_(2)1
.docx
Reso 2024-006.rtf
2024-2-4.Feb-Winter-Storms-SOE-Proc.pdf
County-Proclamation-2024-February-Extreme-Weather-Event.p df
Attachments:

Approve Consent Calendar Items as recommended by staff.

PUBLIC HEARINGS:

To speak on Public Hearing Items, submit comments via e-mail at [email protected]. In the subject of your e-mail please indicate whether you are in favor or opposition of the item. Comments must be received no later than 12:00 P.M. on the day of the meeting. Comments of no more than three ( 3) minutes will be read into the record at the appropriate time during the meeting. If you challenge in court any action taken concerning a Public Hearing item, you may be limited to raising only those issues you or someone else raised at the Public Hearing described in this notice or in written correspondence delivered to the City at, or prior to, the Public Hearing.

All Public Hearings will be conducted following this format:
(a) hearing opened (e) oral - favor
(b) written communication (f) oral - opposition
(c) council/staff comments (g) hearing closed
(d) applicant comments (applicant not limited to 5 minutes) A. Master Case No. 19-090-R1 and Appeal No. 23-018: Appeal of the Planning Commission’s decision to deny Conditional Use Permit No. 19-032-R1, a request to modify the existing conditions of approval of previously approved CUP No .
19-032 in order to allow the sale of single alcoholic
beverages of wine and distilled spirits smaller than 375 milliliters and beer /malt beverages in single size
containers of 40 ounces or less for an existing
convenience store, the Marelias Liquor and Market, located at 8145 Cypress Avenue (APN:0191-091-22).
21-2760
Based on the information in the staff report and subject to the attached Findings, staff recommends that the City Council:

1. Deny Appeal No. 23-018 and uphold the Planning Commission ’s decision to deny Conditional Use Permit No. 19-032- R1, a request to modify the conditions of approval for existing approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer /malt beverages in single size containers of 40 ounces or less for Marelias Liquor and Market, an

6 City Council Meeting Revised Agenda February 13, 2024 existing liquor store located at 8145 Cypress Avenue.

Attachment No. 1 Appeal Letter
Attachment No. 2 Vicinity Map
Attachment No. 3 Planning Commission Packet
Attachment No. 4 Public Hearing Notice.docx
Attachments:

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports
A. Discussion and Possible Action Regarding Appointing
Regular and Alternate Members to Local Agencies
/Regional Boards
21-2799
ADJOURNMENT:

A. Adjournment
Adjourn to the next Regular City Council Meeting on February 27, 2024 at 2:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.

7 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2798 Agenda Date: 2/13/2024
Agenda #: A. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Approval of Minutes
RECOMMENDATION:

Approve the minutes of the January 23, 2024, Regular City Council Meeting and the February 1, 2024, Special City Council Meetings.

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 January 23, 2024, Regular City Council Meeting and the February 1, 2024, Special City Council Meetings. The draft minutes are attached to this report for Council review and approval.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 2/6/2024Page 1 of 1
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City of Fontana

8353 Sierra Avenue
Fontana, CA 92335

Minutes

Tuesday, January 23, 2024

2:00 PM

Grover W. Taylor Council Chambers

City Council Meeting

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

9

CLOSED SESSION:

A. 1:00 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, January 23, 2024.

Mayor Warren called the meeting to order at 1:00 p.m., with all members of the City Cou ncil present.

PUBLIC COMMUNICATION - CLOSED SESSION:

There were no public communications received for the following items:

1. CONFERENCE WITH LEGAL COUNSEL– EXISTING
LITIGATION (Gov. Code, § 54956.9(d)(1).)
Name of Case: Planned Parenthood/Orange and San
Bernardino Counties, Inc. vs. City of Fontana, Case #
CIVSB2328945

2. CONFERENCE WITH LEGAL COUNSEL– EXISTING

LITIGATION PURSUANT TO GOVERNMENT CODE
SECTION 54956.9 (a)
Name of Case: Catalyst – Fontana LLC vs. City of Fontana, Case # CIVSB2329401

3. CONFERENCE WITH LEGAL COUNSEL – Significant
Exposure to Litigation
Pursuant to Government Code sec. 54956.9(e)(5): One Case

CALL TO ORDER/ROLL CALL:

A. 2:00 P.M. Call To Order/Roll Call:

The Regular Meeting of the Fontana City Counci l was held in the Grover W. Taylor Council Chambers, 8353 Sierra Avenue, Fontana, CA 92335, on Tuesday, January 23, 2024.

Mayor Warren called the Regular City Council Meeting to order at 2:00 p.m.

ROLL CALL:

PRESENT: Mayo r Warren, Mayor Pro Tem Garcia, Council Member s Cothran, Robert s and Sandoval.

10

ABSENT: City Treasurer Janet Koehler -Brooks and City Clerk Germaine Key were also present.

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 Sandoval.

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.

PRESENTATIONS:

A. Presentations:

1. Housing Department Annual Report Presentation, Valerie Gonzales

Housing Development Manager Valerie Gonzales provided the presentation.

2. The Southern California Municipal Athletic Federation presents the Ci ty of Fontana’s Community Services Department with their Golden Shield Award for outstanding contributions to the Federation and awards Community Services Supervisor Stan Clark with a Special Recognition for excellence in service to the Federation.

Bill Blant, of the Southern California Municipal Athletic Foundation presented the Community Services Department with the Golden Shield Award for their outstanding contributions to the Federation and community. Community Services Supervisor Stan Clark was also awarded special recognition for their contributions to the Federation.

PUBLIC COMMUNICATIONS:

A. Public Communications

The following individuals spoke under public communications:

Ted Jimenez thanked the Mayor and City Council for the progress and improvements made by the City.

Tarik Azim expressed support for Planned Parenthood.

11

Terrie Schmidt of Planned Parenthood expressed support for bringing Planned Parenthood to the city and urged the Council to end the development moratorium.

Ariana Chavez expressed support for Planned Parenthood.

Windi Joseph expressed support for Planned Parenthood.

Bobbi Jo Chavarria expressed support for Planned Parenthood.

Richard Montano discussed concerns with the conditions of the dog park at Fontana Park.

Andrea Schmidt of Planned Parenthood expressed support for bringing Planned Parenthood to the city.

Mark Richichi spoke in opposition of Planned Parenthood.

Danielle Holley, Executive Director of the Fontana Chamber of Commerce discussed 2023 highlights.

Professor McIntosh of Empowering Success Now discussed services offered by their non-profit organization.

Ana Gonzalez expressed support for Planned Parenthood.

Joaquin Castillegos expressed support for Planned Parenthood.

Elizabeth Sena discussed concerns with the City Council and disenfranchisement of community members. Also expressed support for Planned Parenthood.

Claudia Cuevas discussed concerns with only clear face masks being permitted in the Council Chambers and expressed support for Planned Parenthood.

Adam Milges discussed concerns with Palestine and expressed support for Planned Parenthood.

Oskar Zambrano expressed opposition of Ordinance 1939 and with the development of warehouses.

Cassie McDuff expressed support for Planned Parenthood.

CONSENT CALENDAR:

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 I tems “A-Q.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts and Sandoval; NOES: None; ABSTAIN: None ABSENT: None

12

A. Approval of Minutes 21-2735
Approve the minutes of the December 12, 2023, Regular City Council Meeting.

B. Adoption of Ordinance No. 1939 (Second Reading) 21-2711 Second Reading / Adoption of Ordinance No. 1939, approving an ordinance of the City Council of the City of Fontana enacting a prohibition on targeted residential picketing.

C. Award bid Construction Contract for Sierra Lakes Pavement 21-2676 Rehabilitation Project (Bid No. (DE-24-42-SB)

1. Award and authorize the City Manager to execute a construction contract with Matich Corporation for the construction of the Sierra Lakes Pavement Rehabilitation Project, the fiscal impact associated with the approval of this item is $1,647,818.00 (37604130-283-F-8330) and authorize a 10% contingency in the amount of $164,781.80 (37604130-283-F-8331), Bid No. (DE-24-42-SB).

2. Approve and authorize the City Manager to execute all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Sierra Lakes Pavement Rehabilitation Project.

D. Final Acceptance of the Kathy Binks Elementary Safe Routes to 21-2697 School Project
Accept as complete the work performed by CT&T Concrete Paving, Inc for the construction of the Kathy Binks Elementary Safe Routes to School Project (#37600024) and approve the final construction amount of $321,737.09 (Bid No. SB-108-DE-23).

E. Approve and Authorize the City Manager to Execute an 21-2709 Easement Deed
Approve and authorize the City Manager to execute an Easement Deed with San Bernardino County Flood Control District for the Narra Hills Project.

F. Declaring a Portion of Real Property City-owned on Oleander 21-2710 Avenue Exempt Surplus Land

1. Adopt Resolution No. 2024-001, declaring a portion of real property City-owned on Oleander Avenue Exempt Surplus Land, located between South Highland Avenue and Highland Avenue.

G. Lease Agreement for Fire Station 81 21-2712

1. Approve Lease Agreement between the Fontana Fire Protection District and the City of Fontana.

2. Authorize the City Manager and/or his designee(s) to execute Lease

13

Agreement on behalf of the City of Fontana, including extensions and non-material amendments.

H. Award a Construction Contract for the Courtplace Housing 21-2728 Development (Infrastructure Improvements) Project

1. Award bid and authorize the City Manager to execute a Construction Contract with Weka, Inc. of San Bernardino, CA for the construction of the Courtplace Housing Development (Infrastructure Improvements) Project in the amount of $4,863,524.00 and authorize a 10% contingency in the amount of $486,352.40 (Bid No. DE-24-124-SB).

2. Appropriate $1,779,000 from Storm Drain Fund (622), $294,000 from Sewer Capital Projects Fund (702), and $648,000 from Circulation Mitigation Fund (630) to the Courtplace Housing Development (Infrastructure Improvements) Project (PN0063).

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 Courtplace Housing Development (Infrastructure Improvements) Project (DE-24-124-SB).

I. 2022 Homeland Security Grant (HSGP) 21-2729
Accept the 2022 Homeland Security Grant Program subrecipient award in the amount $37,919 from the Office of Homeland Security.

Authorize the Chief of Police or his designee to sign all related grant documents including extensions or modifications for the grant; and expend funds as outlined in the grant agreement.

J. Police Department Donations July - December 2023 21-2731 Accept monetary and gift donations from multiple donors including community programs, businesses, and citizens.

K. 2023 Edward Byrne Memorial Justice Assistance Grant (JAG) 21-2733

1. Approve the Interlocal Agreement with the Town of Apple Valley, the Cities of Adelanto, Barstow, Chino, Colton, Fontana, Hesperia, Highland, Montclair, Ontario, Rancho Cucamonga, Redlands, Rialto, San Bernardino, Upland, Victorville, and the County of San Bernardino, concerning distribution of the 2023 JAG in the amount of $58,201.

2. Authorize the City Manager to sign the Interlocal Agreement on behalf of the City of Fontana for the 2023 JAG and any other documents and/or amendments required to comply with this grant award.

L. Police Department Monthly Information Update 21-2736 Accept the Police Department monthly information update for November 14

2023.

M. Adopt a Resolution to Authorize the City Manager to Award 21-2744 Contract to Custom Craft Flooring of La Verne, California for the Emergency Flooring Repair Work at the Fontana Senior Center

1. Adopt Resolution No 2024-002, a resolution of the City Council of the City of Fontana, recognizing that certain conditions exist with the flooring of the Senior Center requiring emergency repair work. This resolution is made in accordance with Fontana City Code Sec.10- 147(a)(6).

2. Authorize the City Manager, or his designee, to execute a contract with Custom Craft Flooring in the amount of $214,700 with a 10% contingency in the amount of $21,470 for the performance of emergency flooring repair work at the Fontana Senior Center.

N. Approve Purchase of Automated Camera Equipment from Flock 21-2746 Group, Inc.

1. Approve the purchase of Automated Camera Equipment from Flock Group, Inc. to be utilized at various locations throughout the City of Fontana.

2. Authorize the Chief of Police or his assigned designee to sign the Order Form and Master Service Agreement.

3. Authorize the Purchasing Department to issue purchase orders as funding become available to Flock Group, Inc., for the purchase and installation of the Automated Camera Equipment from Federal Asset Seizure Fund #223 or other Fund sources.

O. Option and Purchase and Sale Agreement for City owned 21-2749 property

1. Approve the Option and Purchase and Sale Agreement with SA Golden Investments, LLC for city owned land located at the northwest corner of Arrow Boulevard and Sierra Avenue consisting of approximately 21,500 square feet, more specifically described as APN’s 0191-163-26, 0191-163-17, and 0191-163-16.

2. Authorize the City Manager to execute any documents necessary or appropriate to effectuate said approvals and/or agreement.

P. Contract with Serviam by Wright LLP to serve as City 21-2753 Prosecutor
Approve a contract with Serviam by Wright LLP (formerly known as Silver & Wright) and authorize the City Manager to execute contract. 15

Q. Acceptance of Fontana’s Downtown Revitalization Grant 21-2754

1. Accept grant funding from the State of California in the amount of $3,000,000 for Fontana’s Downtown Revitalization.

2. Authorize the City Manager to approve budget adjustments to increase revenue and appropriations of $3,000,000 as detailed in the fiscal impact.

PUBLIC HEARINGS:

A. Quarterly Lien Action for Delinquent Sewer, Rubbish and Weed 21-2738 Abatement Accounts

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

2. Authorize staff to complete and record liens against real property for those rubbish accounts more than ninety days delinquent as described in the Certified Lien List and direct staff to forward recorded liens to the County for collection.

3. Adopt Resolution No. 2024-003, of the City Council of the City of Fontana adopting the statement of unpaid expenses for weed abatement and imposing a lien against real property for payment thereof.

Mayor Warren opened the Public Hearing.

City Clerk Key stated that there no written communications received or requests to speak.

Revenue Operations Manager Lisa Conlon provided the staff report.

Mayor Warren closed the Public Hearing.

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

B. Master Case No. 23-094 and Specific Plan Amendment No. 21-2690 23-003 - An Ordinance of the City Council of the City of Fontana, California, approving Specific Plan Amendment No. 23-003 to modify the West End Specific Plan to add “escape rooms” as a permitted use within the light industrial zoning district generally located west of cherry avenue ease of east avenue, north of foot hill boulevard, and south of base line avenue pursuant to a categorical exemption in accordance with 16

CEQA Guidelines Sections 15060(c), 15061(B)(3) (the
common-sense exemption), and Sections No. 3.01 and 10.59 of the 2019 Local Guidelines for Implementing CEQA and in the alternative Section 15301 (Existing Facilities) and 15303 (New Construction or Conversion of Small Structures) and direct staff to File a Notice of Exemption. Based on the information in the staff report staff recommends that the City Council adopt Ordinance No. 1940; and,

1. 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 Sections No.

3.01 and 10.59 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 found 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 direct staff to File a Notice of Exemption;

2. Read by title only and waive further reading of and introduce Ordinance No. 1940, an Ordinance of the City Council of the City of Fontana, approving Master Case No. 23-094 and Specific Plan Amendment (SPA) No. 23-003 to amend the West End Specific Plan to add “Escape Room” as a permitted use within the Light Industrial District (BP2) District in the West End Specific Plan; and that the reading of the title constitutes the first reading thereof.

Mayor Warren opened the public hearing.

City Clerk Key stated there no written communications received or requests to speak.

Senior Planner Salvador Quintanilla provided the staff report.

Mayor Warren closed the public hearing.

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

C. Ordinance No. 2024-1941: An Ordinance of the City Council of 21-2742 the City of Fontana, California, Pursuant to an Exemption from the California Environmental Quality Act, Approving a Developme nt Agreement with Fontana Responsible and Compliant Retail, LLC, concerning a retail cannabis business and Direct Staff to File a Notice of Exemption. Based on the information in the staff report and subject to the findings, conclusions, and information in the staff report, resolution and presented in the public hearing, staff recommends that the City 17

Council adopt Ordinance No. 2024 -1941; and recommend the City Council:

1. Find, after review of the whole of the Project, including this Development Agreement, that the project is EXEMPT from the California Environmental Quality Act (“CEQA”), pursuant to State CEQA Guidelines Section 15301 (Existing Facilities) and direct staff to file a Notice of Exemption; and

2. Approve a Development Agreement with Fontana Responsible and Compliant Retail, LLC, based upon the findings in the staff report and ordinance, pending adoption of an Operating Agreement with Fontana Responsible and Compliant Retail, LLC.

3. Approve an Operating Agreement with Fontana Responsible and Compliant Retail, LLC, as required by FMC 33-21.

Mayor Warren opened the public hearing.

City Clerk Key stated that there were no written communications received.

Deputy City Manager Phillip Burum provided the staff report.

Council Member Sandoval asked if the nearby church was still operating.

Deputy City Manager Phillip Burum stated the church provided a letter of support.

The following individuals spoke in opposition of the item:

1. Ana Gonzalez

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 “C.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None ABSENT: None NEW BUSINESS:

A. New Business
A. Appointment of Mayor Pro Tem 21-2670
Consider an appointment of a Council Member to the position of Mayor Pro Tem for a one-year term.

ACTION: Motion was made by Mayor Warren, seconded by Council Member Cothran, and passed by a vote of 4-1 to approve New Business Item “A” as follows:

18

Appoint Peter Garcia as Mayor Pro Tem for a term of one-year

The motion carried by the following vote: AYES: Warren, Garcia, Cothran and Roberts; NOES: Sandoval; ABSTAIN: None

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications

City Manager Matthew Ballantyne had no comments.

ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports

City Treasurer Koehler-Brooks wished all a happy new year and expressed condolences to City Clerk Key.

City Clerk Key thanked all for the condolences and support. Wished all a happy new year.

Council Member Roberts wished Council Members Cothran and Sandoval a happy birthday. He also r equested that the Council consider naming Fire Station 81 in honor of veteran Fontana Fire Department Engineer Robert E. Hartness who died in the line of duty.

City Manager Matthew Ballantyne stated that consideration of naming Fire Station 81 would be brought forward at the next Council meeting.

Council Member Sandoval asked if translation services would be provided for the January 24th Vendor Workshop and wished Council Member Cothran a happy birthday.

City Manager Matthew Ballantyne stated that translation services would be available.

Council Member Cothran wished Council Member Sandoval a happy birthday, offered condolences to City Clerk Key and encouraged all to attend the bike race at Southridge on January 27th.

Mayor Pro Tem Garcia wished all a happy new year.

Mayor Warren offered condolences to City Clerk Key and all who lost loved ones recently. She also recognized all organizations and support ers who provided assistance during the holiday season, discussed the recent Mayor's Conference in Washington, DC, thanked the community for their support and looked forward to more growth in 2024.

19

ADJOURNMENT:

A. Adjournment
Mayor Warren and the City Council led a moment of silence in memory of the following individuals:

1. Yvonne Williams, long time Fontana resident and Exchange Club member

2. JaCynthia Quinn, Fontana resident

3. Mark McKay, owner of McKay Funeral Home

4. Erin Elizabeth Key, daughter of City Clerk, Germaine Key

Mayor Warren adjourned the meeting at 4:01 p.m. to the next Regular City Council Meeting on Tuesday, February 1 3, 2024, 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 FEBRUARY 13, 2024.

_______________________
Germaine Key
City Clerk

20

City of Fontana

8353 Sierra Avenue
Fontana, CA 92335

Minutes

Thursday, February 1, 2024

9:00 AM

City of Fontana
Heritage Neighborhood Center
7350 Liberty Parkway
Fontana, CA 92336

Special 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

21

CALL TO ORDER/ROLL CALL:

A. 9:00 A.M. Call To Order/Roll Call:

The Special Meeting of the Fontana City Council was held in the Heritage Neighborhood Center, 7350 Liberty Parkway , Fontana, CA 92336 , on Thursday , February 1, 202 4. Mayor Warren called the meeting to order at 9:05 a.m.

ROLL CALL:

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

ABSENT: None

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

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 Sandoval.

PUBLIC COMMUNICATIONS:

A. Public Communications:

There were no public communications received.

WORKSHOP:

A. City Council Workshop: Goal Setting (Executive Management Team to present).

The City’s Vision, Mission Goals and Objectives were discussed.

City Manager Matthew Ballantyne provided an overview of special projects over the next five years. Stated that an additional workshop would be scheduled so the Council could provide feedback.

RECESS:

Mayor Warren called for a recess at 2:28 P.M.
22

The meeting reconvened at 2:38 P.M. with all members present.

ADJOURNMENT:

A. Adjournment
Mayor Warren adjourned the meeting at 2:50 p.m. to the Regular City Council Meeting on Tuesday, February 13, 2024, 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 FEBRUARY 13, 2024.

_______________________
Germaine Key
City Clerk

23

City of Fontana

8353 Sierra Avenue
Fontana, CA 92335

Minutes

Thursday, February 1, 2024

2:00 PM

City of Fontana
Heritage Neighborhood Center
7350 Liberty Parkway
Fontana, CA 92336

Special 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

24

CALL TO ORDER/ROLL CALL:

A. 2:00 P.M. Call To Order/Roll Call:

The Special Meeting of the Fontana City Council was held in the Heritage Neighborhood Center 7350 Liberty Parkway , Fontana, CA 9233 6, on Thursday, February 1, 202 4. Mayor Warren called the meeting to order at 2:29 P.M.

ROLL CALL:

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

ABSENT: None

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

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 Sandoval.

PUBLIC COMMUNICATIONS:

A. Public Communications:

There were no public communications received.

CONSENT CALENDAR:

A. Approve and Authorize the Revocable Grant Agreement, 21-2807 Regulatory Agreement, and Grant Deed of Trust between San Bernardino County and the City of Fontana for property located at 17133 Valley Boulevard, Fontana, California (“Property”) authorizing the City to accept a grant from San Bernardino County of up Five Million Dollars ($5,000,000) for the purpose of converting the Property to interim housing and provide one hundred twenty (120) beds of affordable housing (excluding one unrestricted manager’s unit) for individuals and families who are experiencing homelessness or who are at risk of homelessness, as defined in Part 578.3 of Title 24 of the Code of Federal Regulations
That City Council take the following action:
25

1. Adopt Resolution No. 2024-004 of the City Council of the City of Fontana to: (1) accept a grant from San Bernardino County of Five Million Dollars ($5,000,000) for the purpose of converting the Property to interim housing and provide one hundred twenty (120) beds of affordable housing (excluding one unrestricted manager’s unit) for individuals and families who are experiencing homelessness or who are at risk of homelessness.

2. Approve and authorize the City Manager to execute the Revocable Grant Agreement for the San Bernardino County funding for the Property, on the terms and conditions specified therein.

3. Approve and authorize the City Manager, or his designee, to negotiate, develop, execute, and otherwise manage any documents in furtherance of converting the Property to affordable housing for individuals and families who are experiencing homelessness or who are at risk of homelessness.

4. Record associated Regulatory Agreement and Grant Deed of Trust with San Bernardino County for the purchase and use of the associated property.

5. Approval and adopt a finding that the proposed land transaction is in compliance with National Environmental Policy Act (NEPA) and is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15301. EXISTING FACILITIES and Section 15326. ACQUISITION OF HOUSING FOR HOUSING ASSISTANCE
PROGRAMS.

Deputy City Manager Phillip Burum provided the staff report.

ACTION: Motion was made by Council Member Cothran, seconded by Mayor Pro Tem Garcia, and passed by a vote of 5- 0 to approve the Consent Calendar I tem “A.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, Roberts and Sandoval; NOES: None; ABSTAIN: None ABSENT: None

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications
There were no City Manager Communications.

ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports
There were no Elected Officials Communications.

26

ADJOURNMENT:

A. Adjournment
Mayor Warren adjourned the meeting at 2:38 p.m. to the next Regular City Council Meeting on February 13, 2024, 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 FEBRUARY 13, 2024.

_______________________
Germaine Key
City Clerk

27 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2796 Agenda Date: 2/13/2024
Agenda #: B. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1940, Pertaining to Amend the West End Specific Plan to add “Escape Rooms” (Second Reading)
RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1940, approving Master Case No. 23-094 and Specific Plan Amendment (SPA) No. 23-003 to amend the West End Specific Plan to add “EscapeRoom”as a permitted use within the Light Industrial District (BP2) District in the West End Specific Plan; and that the reading of the title constitutes the first reading thereof.

COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.

DISCUSSION:

Ordinance No. 1940 was introduced by a vote of 5-0 at the January 23, 2024, Regular City Council meeting.

FISCAL IMPACT:

No fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 2/6/2024Page 1 of 1
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28

ORDINANCE NO. 1940

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA, APPROVING SPECIFIC PLAN AMENDMENT NO. 23 -003 TO MODIFY THE WEST END SPECIFIC PLAN TO ADD “ESCAPE
ROOMS” AS A PERMITTED USE WITHIN THE LIGHT INDUSTRIAL
(BP2) ZONING DISTRICT, GENERALLY LOCATED WEST OF CHERRY

AVENUE, EAST OF EAST AVENUE, NORTH OF FOOTHILL

BOULEVARD, AND SOUTH OF BASELINE AVENUE, PURSUANT TO A

CATEGORICAL EXEMPTION IN ACCORDANCE WITH CEQA
GUIDELINES SECTIONS 15060 (C) AND 15061 (B)(3) , AND IN THE ALTERNATIVE 15301 (EXISTING FACILITIES) AND 15303 (NEW

CONSTRUCTION OR CONVERSION OF SMALL STRUCTURES) AND
DIRECTING STAFF TO FILE A NOTICE OF EXEMPTION).

WHEREAS, pursuant to article XI, section 5 of the California Constitution and Government Code section 37100, the legislative body of a city may pass ordinances not in conflict with the Constitution and laws of the State or the United States; and WHEREAS, Government Code sections 50022.1 to 50022.10 authorizes a city to codify and recodify its ordinances; and
WHEREAS, the West End Specific Plan, generally located west of Hemlock Avenue, east of East Avenue, south of Baseline Avenue and north of Foothill Boulevard area, was annexed from San Bernardino County and incorporated into the City of Fontana on July 30, 1958; and

WHEREAS, on September 28, 2023, the City of Fontana (“City”) received an application from BSS Entertainment (“Applicant”), for a Specific Plan Amendment (“SPA No. 23-003”) to add escape rooms as a new use within the Light Industrial (BP2) District of the West End Specific Plan; and

WHEREAS, the BP2 district within the West End Specific Plan allows for a variety of uses such as health and athletic facilities, childcare centers, and broadcast and recording studios which are uses that support the surrounding residential community; and

WHEREAS, the project qualifies for a Categorical Exemption pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and Sections No. 3.01 and 10.59 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 poss ibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA and, in the alternative Section 15301 (Existing Facilities) and 15303 (New 29 Ordinance No. 1940

Construction or Conversion of Small Structures), in that the modification of the West End Specific Plan to add “escape rooms” as a permitted use within the Light Industrial zoning district would be expected to indirectly result in either the minor alteration of existing facilities with negligible or no expansion of use, or in the construction of structures no more than approximately 10,000 square feet in size; and

WHEREAS, escape rooms are typically found within existing commercial and light industrial building and areas. Escape rooms typically op erate by appointment only and operate when the other uses within the vicinity have closed for the day. Therefore, based on the location of the escape room, it being in a minimally trafficked area, operating hours, and typical interior improvements to existing suites, the escape room use will not result in a direct or reasonably foreseeable indirect physical change in the environment and the activity is not subject to CEQA; and

WHEREAS, a notice of the Fontana Planning Commission (“Planning Commission”) public hearing was published in the local newspaper on December 9, 2023 and simultaneously displayed at City Hall; and
WHEREAS, on January 16, 2024, the Planning Commission held a public meeting on SPA No. 23 -003 where they received evidence and public testimony and recommended that the Fontana City Council (“City Council”) determine that the amendment qualifies for a categorical exemption pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and Sections No. 3.01 and 10.59 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,
WHEREAS, SPA No. 23-003 is consistent and compatible with the General Plan and are in line with the goals, policies and objectives of the City; the Housing Element policies and the Zoning and Development Code; and
WHEREAS, SPA No. 23 -003 attached hereto as Exhibit “A” and incorpor ated herein by reference, will not be detrimental to the public health, safety and general welfare, nor will it adversely affect the orderly development of property; and WHEREAS, SPA No. 23 -003 will better express the City’s policies and will generally promote good land use planning and regulation; and WHEREAS, On January 13, 2024, a notice of the City Council public hearing was published in the local newspaper and simultaneously displayed at City Hall; and 30 Ordinance No. 1940

WHEREAS, on January 23, 2024, the City Council held a public meeting on SPA No. 23-003 where City Council received evidence and public testimony pertaining to the West End Specific Plan amendment; and
WHEREAS, the City Council carefully considered all information pertaining to SPA No. 23-003 presented at its public hearing on January 23, 2024; and WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.

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 determines that this project qualifies for a categorical exemption pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and Sections No. 3.01 and 10.59 of the 2019 Local Guidelines for Implementing CEQA, and, in the alternative Sections 15301 (Existing Facilities) and 15303 (New Construction or Conversion or Small Structures) in that the modification of the West End Specific Plan to add “escape rooms” as a permitted use within the Light Industrial zoning district would be expected to indirectly result in either the minor alteration of existing facilities with negligible or no expansion of use, or in the construction of structures approximately 10,000 square feet in size.

Section 3. Specific Plan Amendment Findings. The City Council hereby makes the following findings for SPA No. 23-003 accordance with Section 30 -67 “Purpose” of the Fontana Zoning and Development Code:

Finding No. 1: 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 West End Specific Plan was adopted February 2, 1985, and included a Light Industrial (BP2) District. The intent of the district was to provide an attractive and convenient setting for business park and light industrial uses to support the surrounding residential community and adjacent business park and rail industrial areas. The existing language in the BP2 district section of the specific plan is outdated, 31 Ordinance No. 1940

making it difficult to implement various interactive recreational centers and facilities in the area. This Specific Plan Amendment will amend the language to provide for an escape room as a permitted use, which will support the residential community and City. This amendment will allow the specific plan to have unique interactive recreational facilities, which will help to promote the public's health and general welfare. This amendment will provide a use that is less intensive than other allowed uses in the same l and use district, particularly with respect to hours of operation, number of customers, and traffic generation.

Section 4. Specific Plan Amendment Approval. Based on the foregoing, the City Council hereby approves the amendment as set forth in SPA No. 23 -003, which is attached hereto as Exhibit “A” 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 and direct staff to File a Notice of Exemption.

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 13th day of February 2024.

READ AND APPROVED AS TO LEGAL FORM:

_________________________________________
City Attorney
32 Ordinance No. 1940

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 23rd day of January 2024, and was finally passed and adopted not less than five days thereafter on the 13th day of February 2024, 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

33 A-1
EXHIBIT “A”

Language from the BP2 Permitted Use Section B of the West End Specific Plan,

12. Light Industrial (BP2)

a. Description and Purpose. The Business Park District (BP2) is intended to provide an attractive and convenient setting for business park and light industrial uses to support the surrounding residential community and adjacent business park and rail industrial areas.

A Business Park environment integrated through landscaping and design will make the Business Park compatible with the residential areas and business park (BPI) adjacent uses. De velopment projects submitted within the BP2 district will be further evaluated on a project-by-project basis during the precise planning process.

b. Permitted uses. Uses permitted in the Business Park (BP2) District shall include those businesses listed below which operate in compliance with the intent and standards of this district. Each business shall be evaluated in terms of its operational characteristics and specific site plan location. Should the Director of Planning find that the business has the p otential to adversely impact adjacent uses, then a conditional use permit may be required.

1) Blueprinting, reproduction and copying services.
2) Car wash.
3) Child day care centers.
4) Computer service centers
5) Escape room as defined in Section 30-358 of the Zoning and Development Code.
6) 5) Financial institutions, including banks, savings and loan associations, finance companies and credit unions.
7) 6) Hotels & motels, including retail establishments as parts of a hotel or motel complex.
8) 7) Hardware and home improvement centers, occupying a minimum floor area of 20,000 sq. ft.
9) 8) Health and athletic facilities, occupying a minimum floor area of 20,000 sq. ft., but excluding amusement centers.
10) 9) Home furnishing and appliance outlets, occupying a minimum floor area of 20,000 sq/ft.
11) 10) light manufacturing uses as follows:
a. Assembly plants and facilities.
b. Assembly and manufacturing of electronic component
c. Wholesale distribution and soles of industrial and trade related products 12) 11) Medical and dental clinics, including laboratories. 13) 12) Mortuaries

34 A-2
14) 13) Offices as follows:

a. Accountants, advertising agencies, appraisers, attorneys, business and management consultants, economists, and public relations consultants. b. Administrative or executive offices of any type of business. c. Architects, landscape architects, planners, engineers, surveyors, geologists, industrial designers, graphic designers, and interior designers not including retail sales on the premises.
d. Broadcast and recording studios.
e. Employment agencies, travel agencies, and airline ticket agencies. f. General contractors
15) 14) Private post offices.
16) 15) Research, development, and testing laboratories. 17) 16) Restaurants.
18) 17) Sales and Services facilities for automobile, truck and recreation vehicle parts and accessories.
19) 18) Telephone exchanges.
20) 19) Temporary uses as permitted by Section IV.F.I.II. 21) 20) Veterinary clinics, provided no outdoor kennels or runs. 22) 21) Vocational schools.
23) 22) Other similar uses which the Planning Director finds compatible with the permitted uses described herein, consistent with the purpose and intent of the district and not of a type to affect adversely the use of adjoining properties.

c. Conditional Uses

1) Any use listed in subsection b. Permitted Uses, which because of operational characteristics specific to that particular business is found by the Director of Planning to have the potential to negatively impact adjourning properties, businesses, or residents and, therefore, requires additional approval and consideration. Said impacts may be related to, but not necessarily limited to impacts of traffic hours of operation, assemblages of people, noise, or site location.
2) Outdoor display areas, permitted only in conjunction with and secondary to permitted uses.

35 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2797 Agenda Date: 2/13/2024
Agenda #: C. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1941, Pertaining to a Development Agreement with Fontana Responsible and Compliance Retail, LLC (Second Reading)
RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1941, approving a Development Agreement with Fontana Responsible and Compliant Retail, LLC, concerning a retail cannabis business and Direct Staff to File a Notice of Exemption.

COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.

DISCUSSION:

Ordinance No. 1941 was introduced by a vote of 4-1 at the January 23, 2024, Regular City Council meeting.

FISCAL IMPACT:

New revenue, in the form of special fees paid to the city, resulting from execution of this Development Agreement is currently projected to exceed $700,000 annually.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 2/6/2024Page 1 of 1
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36

ORDINANCE NO. 1941

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

CALIFORNIA, PURSUANT TO AN EXEMPTION FROM THE

CALIFORNIA ENVIRONMENTAL QUALITY ACT, APPROVING A

DEVELOPMENT AGREEMENT WITH FONTANA RESPONSIBLE AND

COMPLIANT RETAIL, LLC , CONCERNING A RETAIL CANNABIS
BUSINESS, AND DIRECT STAFF TO FILE A NOTICE OF EXEMPTION.

WHEREAS, California Government Code S ections 65864 et seq. (“Development Agreement Statutes”) and Section 30-322 of the City’s Development Code authorizes the City Council of the City of Fontana to enter into a development agreement with those having a legal or equitable interest in real property in order to establish certain development rights in such property; and to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development in connection with the development of real property within its jurisdiction; and

WHEREAS, on July 26, 2022 , in accordance with state law, the City Council adopted Ordinance No. 1899 adding Chapter 33 to the Fontana Municipal Code (“FMC”) to regulate commercial cannabis businesses within the City by establishing a regulatory permit scheme for commercial cannabis activities, such that each proposed commercial activity must have a regulatory permit and enter into a development agreement and operating agreement with the City Council; and

WHEREAS, on October 25, 2022, the City Council adopted Ordinance No. 1906 amending FMC Chapter 30 and Chapter 33 to rename “commercial cannabis” to “cannabis retailer -storefront” and reference special regulations for same and to make minor modifications to FMC Chapter 33 related to phasing, authorization letters, and locations for permit applications along with limiting the number of permits to be issued to any applicant to one; and

WHEREAS, Section 33-7 of the FMC limits the maximum number of commercial cannabis businesses authorized and designated locations to three, one in the north area, one in the central area and one in the south area of the City; and

WHEREAS, the City of Fontana received an application from Fontana Responsible and Compliant Retail, LLC, (the “Applicant”) on May 4, 2023 for a Retail Commercial Cannabis Business Activity Permit for a location within the central area of the City , and on January 3, 2024 received a request for a development agreement with the Applicant (collectively the “Project”) to establish certain assurances including timing and the provision of public benefits for a commercial cannabis retail sales business at the Project site, an approximately 4,865 square feet of commercial building area on an approximately 37,026 square feet site,
37 Ordinance No.1941

Project Applicant: Fontana Responsible and Compliant Retail, LLC 1616 Webster St.

Alameda, CA 94501

Project Location: The project site is located at 9132 Sierra Ave, (the “Property”) on the west side of Sierra Ave, south of Athol Street, east of Olive Street, north of Randall Ave (APN 0193- 161-02); and

WHEREAS, the Project site is within the General Plan WMXU-3 Walkable Mixed Use-3 Downtown Core Project; and

WHEREAS, when the application for the retail commercial cannabis business activity permit was submitted by the Applicant, the zoning designation was verified as permissible by the City on May 3, 2023 for the Project site, located in the Form Based Code (FBC) district-Sierra Gateway zoning subdistrict, a permissible zoning district where a commercial cannabis business could operate in the City; and

WHEREAS, on September 19, 2023, the Applicant was notified of its top-ranking and of being selected/approved for a Commercial Cannabis Regulatory Permit, effectively establishing the use at the Project site; and

WHEREAS, the City wishes to protect and preserve the quality of life throughout the City, through careful consideration of the proposed development agreement and imposition of the requirements of FMC Chapter 33 upon the Applicant; and

WHEREAS, the City and the Ap plicant agree that, as a condition of allowing the Project, as further defined in the proposed Development Agreement, and due to the unique circumstances of the proposed Project, the Applicant shall be entitled to the assurances timeframes identified in the Development Agreement and shall in turn provide public benefit s, including by paying to the City a percentage of gross receipts of the Applicant’s commercial cannabis retail sales by providing benefits to nonprofit organizations within the City and priority to and opportunities for local jobs, and work for the residents and contractors of the City; and

WHEREAS, because of the logistics, magnitude of the expenditure, and considerable lead time required to plan and develop the Property, Fontana Responsible and Com pliant Retail, LLC has proposed to enter into a development agreement concerning the Property (“Develo pment 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 38 Ordinance No.1941

with development of the Property; and

WHEREAS, Applicant's interest in the Property, including that interest reflected in the D evelopment Agreement, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and

WHEREAS, the Applicant proposes to develop and operate a commercial cannabis retail business in an approximately 4,865 square feet commercial building area on an approximately 37,026 squar e feet lot which includes minor interior and exterior tenant improvements to the existing building, an updated exterior façade, new landscaping on the lot and restriping the parking lot; and

WHEREAS, the terms and conditions of the Development Agreement h ave undergone review by the Planning Commission at a publicly noticed hearing held on January 16, 2024 and recommended that the City Council enter into the Development Agreement;

WHEREAS, the terms and conditions of the Development Agreement have undergone review by the City at a publicly noticed hearings and have been found to be fair, just and reasonable, and 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 consistent with the General Plan; (iii) the Development Agreement is in conformity with the public convenience, general welfare and good land use practice; (iv) the Development Agreement will not be detrimental to the public health, safety and general welfare; and (v) 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, pursuant to the California Environmental Quality Act (“CEQA”) (Public Resources Code §21000 et seq.) and the State CEQA G uidelines (Cal. Code Regs.,tit. 14, §15000 et seq.), the whole of the Project, including the Development Agreement, has been reviewed and found to be exempt from CEQA pursuant to State CEQA Guidelines Section 15301, Existing Facilities and a Notice of Exemption will be filed upon adoption of this Resolution; and

WHEREAS, notice of the public hearing was duly publ ished and posted in accordance with all legal requirements; and

WHEREAS, all other legal prerequisites to the adoption of this resolution have occurred.

THE CITY COUNCIL OF THE CITY OF FONTANA DOES ORDAIN AS
FOLLOWS:

Section 1. Recitals. The above recitals are true, correct and incorporated herein by reference.
39 Ordinance No.1941

Section 2. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves the development agreement on file with the City Clerk and incorporated by reference herein, entitled "Development Agreement No. 24- 001_among the City of Fontana and Fontana Responsible and Compliant Retail, LLC.".

Section 3. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety an d welfare of the community because the Development Agreement will enable needed improvements at the Property and the economic development within the Property, its surrounding communities and the citizens of the City.

SECTION 4. Pursuant to Government Code section 65868.5, within 10 days following the entering into of the Development Agreement, as evidenced by the full execution thereof, the City Clerk shall cause to be recorded with the San Bernardino County Recorder a copy of the executed Development Agreement.

SECTION 5. CEQA. The whole of the Project, including the Development Agreement, has been reviewed and found to be exempt from California Environmental Quality Act (“CEQA”) pursuant to State CEQA Guideline s S ection 15301, Existing Facilities, as the cannabis retail use will be located in an existing commercial facility with no proposed expansion to the building and only making minor interior improvement and minor exterior façade improvements and new landscaping and restriping of the parking lot.

SECTION 6. This Ordinance shall take effect thirty (30) days after the date of its adoption, and prior to the expiration of the fifteen (15) days from the passage thereof, the Ordinance or a summary of the Ordinance shall be published at least once in the Herald News, a newspaper of general circulation in the City of Fontana. Thereafter this Ordinance shall be in full force and effect.

APPROVED and ADOPTED this 13th day of February, 2024.

READ AND APPROVED AS TO LEGAL FORM:

________________________________
City Attorney

40 Ordinance No.1941

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 introduced at a regular meeting of said City Council on the 23rd day of January, 2024, and was finally passed and adopted not less than five days thereafter on the 13th day of February, 2024 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

41 A-1

EXHIBIT A

DEVELOPMENT AGREEMENT

WITH FONTANA RESPONSIBLE AND COMPLIANT RETAIL, LLC

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

City of Fontana
8353 Sierra Ave.

Fontana, CA 92335
Attention: City Clerk

SPACE ABOVE THIS LINE FOR RECORDER’S USE
Recording Fee Exempt per Government Code § 6103

DEVELOPMENT AGREEMENT
THIS DEVELOPMENT AGREEMENT (this “Agreement”) is made and entered into this __th day of _____________, 2024 (the “Execution Date”), by a nd between the CITY OF FONTANA, a California municipal corporation (“City”) and Fontana Responsible and Compliant Retail LLC., a California Limited Liability Company, with its principal address located at 1616 ½ Webster Street, Alameda, CA 94501, (“Permittee”). City and Permittee are sometimes referenced together herein as the “Parties.” In instances when a provision hereof applies to each of the Parties individually, either may be referenced as a “Party.” The Parties hereby jointly render the following statement as to the background facts and circumstances underlying this Agreement.

RECITALS
A. The State of California enacted California Government Code sections 65864 et seq. (“Development Agreement Statutes”) to authorize municipalities to enter into development agreements with those having a legal or equitable interest in real property to strengthen the public planning process, encourage private participation in comprehensive planning, and reduce the economic risk of development in connection with the development of real property within their jurisdiction.

B. The purpose of the Development Agreement Statutes is to authorize municipalities, in their discretion, to establish certain development rights in real property for a period of years regardless of intervening changes in land use regulations, to vest certain rights, and to meet certain public purposes of the local government.

C. As authorized by the Development Agreement Statutes, the City has adopted Municipal Code Section 30-322 establishing the procedures and requirements for the consideration of development agreements with the City.
42 A-2
D. Permittee currently owns legal or equitable interest in real property considered in this Agreement, located at 9132 Sierra Ave., Fontana, CA 92335 , County of San Bernardino, State of California (the “Site”).The Site includes Assessor’s Parcel Numbers: 019316102 as is more fully described in Exhibit A and shown on the map in Exhibit B, both exhibits being attached hereto and incorporated herein by this reference.

E. On September 13, 2016, the City Council adopted Ordinance No. 1747 prohibiting all marijuana uses in the City to the extent allowed under California, and included a provision requiring a Residential Indoor Marijuana Cultivation (“RIMC”) permit for any individual who desires to grow up to six (6) marijuana plants in their private residence.

F. On November 8, 2016, California voters approved Proposition 64, titled the “Adult Use of Marijuana Act” (the “AUMA”) and enacted a state statutory scheme legalizing, controlling, and regulating the cultivation, processing, manufacturing, distribution, testing, and sale of nonmedical (“adult-use” or “recreational”) cannabis, including cannabis products, for use by adults twenty-one (21) years of age and older.

G. On June 27, 2017, Governor Brown signed Senate Bill 94, the “Medicinal and Adult- Use Cannabis Regulation and Safety Act” (“SB 94” or the “MAUCRSA”). SB 94 creates one state regulatory structure for medical and adult-use cannabis use and commercial cannabis activities, reconciling AUMA, with Proposition 215 and MAUCRSA. SB 94 continues to provide that a state license will not be approved for a business to engage in Commercial Cannabis Activity if the business activity violates any local ordinance or regulation.

H. The City Council adopted Ordinance No. 1899, on July 12, 2022, as amended on October 25, 2022, establishing a regulatory permit scheme for commercial cannabis activities, such that each proposed commercial activity must have an agreement and a regulatory permit prior to operation.

I. Presently, Permittee intends to utilize the Site for the sale of cannabis. Permittee is an authorized corporation as allowed by law duly formed under California law for the purpose of commercial cannabis sales (“Commercial Cannabis Activity”). Such Commercial Cannabis Activity facilities shall operate in accordance with the California State Compassionate Use Act (Health & Saf.Code, § 11362.5) (“CUA”), the Medical Marijuana Program Act (Health & Saf. Code, §§ 11362.7 et seq.) (“MMP”), the Control, Regulate and Tax Ad ult Use of Marijuana Act of 2016 (“AUMA”), and the Medicinal and Adult Use Regulation and Safety Act (“MAUCRSA”), Fontana Municipal Code Ordinance Chapter 33 and regulations promulgated thereunder, and any additional California state law related to Commerc ial Cannabis Activity (collectively “State Cannabis Law”). Prior to operating a Commercial Cannabis Activity facility, Permittee shall be required to obtain a Commercial Cannabis Activity regulatory permit from City pursuant to City ordinance.

J. Permittee shall obtain all required state licenses issued under State Cannabis Law.

K. Pursuant to the California Environmental Quality Act (“CEQA”) (Public Resources Code §21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs.,tit. 14, §15000 et seq.), the whole of the Project, including the Development Agreement, has been reviewed and 43 A-3
found to be exempt from CEQA pursuant to State CEQA Guidelines Section 15301, Existing Facilities and a Notice of Exemption will be filed upon adoption of this Resolution.

L. Permittee presently intends to develop and open Commercial Cannabis Activity facilities (“Commercial Cannabis Activity Facility”) on the Site consistent with State Cannabis Law, all other applicable California law, and Project Approvals (known as the “Project”).

M. The Project will include commercial retail cannabis sales to individuals under State Cannabis Law at the Project Site (“Commercial Cannabis Activity Facility”).

N. The Project will consist of a total planning area of approximately 4,865 square feet of commercial building area on a lot of approximately 37,026 square feet. The Project is designed to integrate seamlessly into the City of Fontana’s General Plan Goals and Policies for Commercial Districts, including the latest provisions for Commercial Cannabis Activity. The Project includes interior and exterior improvements to the existing building, an updated exterior facade, new landscaping on the lot, and restriping the parking lot.

O. City and Permittee have agreed that, as a condition of allowing the Project, as d efined herein, and due to the unique circumstances of the proposed Project, shall pay to the City a retail fee based on the gross receipts of Developer’s commercial cannabis retail sales, as hereinafter defined.

P. City has given public notice of its intentio n to adopt this Agreement and has conducted public hearings thereon pursuant to California Government Code section 65867 and Municipal Code Section 30-322. City has found that the provisions of this Agreement and its purposes are consistent with the object ives, policies, general land uses and programs specified in City’s General Plan, zoning code and municipal ordinances.

Q. City, in entering into this Agreement, acknowledges that certain City obligations hereby assumed shall survive beyond the terms of the present City Council members, that this Agreement will serve to bind City and future City Councils to the obligations hereby undertaken, and that this Agreement shall limit the future exercise of certain governmental and proprietary powers of City. By approving this Agreement, the City Council has elected to exercise certain governmental powers at the time of entering into this Agreement rather than defer its actions to some undetermined future date. The terms and conditions of this Agreement have undergone extensive review by City staff, the Planning Commission, and the City Council and have been found to be fair, just and reasonable. City has concluded that the pursuit of the Project will serve the best interests of its citizens and that the public health, safety, and welfare are best served by entering into this Agreement. Permittee has represented to City that it would not consider or engage in the Project absent City approving this Agreement; i.e., assuring Permittee that it will enjoy the development rig hts given in this Agreement. The City Council specifically finds that this Agreement satisfies each and every one of the required findings in Municipal Code Section 30-322. .

R. The City agrees that Permittee’s land use entitlements for the Project shall vest for the term of this Agreement as described below, including, but not limited to, the right to commercial 44 A-4
cannabis retail sales and related development in compliance with State Cannabis Law and local ordinances.

S. After conducting a duly noticed hearing on January 16, 2024, in conjunction with Section 30-322 of the City’s Municipal Code, the Planning Commission of the City reviewed, considered and approved Resolution No. PC 2024 -_______. The Planning Commission found the Project consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses a uthorized in the FBC – Gateway Core; is in conformity with the public necessity, public convenience, general welfare and good land use practices; will not be detrimental to the health, safety and general welfare of the city; will not adversely affect the orderly development of property or the preservation of property values; and will have a positive fiscal impact on the City.

T. After conducting a duly noticed hearing on January 23, 2024, in conjunction with Section 30-322 of the City’s Municipal Code, and after independent review and consideration, the City Council approved the execution of this Agreement. The City Council found the Project consistent with the objectives, policies, general land uses and programs specified in the general plan; compatible with the uses authorized in the Commercial zone; is in conformity with good land use practices; will not be detrimental to the health, safety and general welfare of the City; and is in the best interest of the City of Fontana and its residents.

NOW, THEREFORE , in consideration of the mutual covenants and agreements contained herein, and other good and valuable consideration, the receipt and lega l sufficiency of which are hereby acknowledged, the Parties do hereby agree as follows:

1. Binding Effect of Agreement. The Parties agree that the Recitals above are true and correct and intend to be bound by same; the Parties further agree to the incorporation by reference herein of said Recitals, together with all definitions provided and exhibits referenced therein. This Agreement pertains to the Site as described in Exhibit A and shown in Exhibit B . Except as otherwise provided in Section 15 of this Agreem ent, the burdens of this Agreement are binding upon the Permittee. In order to provide continued notice thereof, the Parties will record this Agreement with the San Bernardino County Recorder. Should the size or orientation of any Site component specified above be changed in minor respects, e.g., changed by a lot line adjustment, this Agreement shall not thereby be deemed to have been affected or invalidated, but the rights and obligations of the Parties shall remain as provided herein.

2. Relationship of the Parties. It is hereby specifically understood and acknowledged that the Project is a private project and that neither City nor Permittee will be deemed to be the agent of the other for any purpose whatsoever. City and Permittee hereby renounce the existenc e of any form of joint venture or partnership between or among them and agree that nothing contained herein or in any document executed in connection herewith shall be construed as making City and Permittee joint venturers or partners.

3. Term. Except as othe rwise specified herein, the term of this Agreement (the “Term”) shall be for three (3) years from the Execution Date. The Term shall generally be subject to earlier termination or extension as hereinafter provided. 45 A-5

3.1 Term Extension. This Agreement shall be subject to two (2) year extensions at the sole discretion of the City. The City Manager is authorized to enter into the term extensions after conducting a periodic review in accordance with Government Code section 65865.1. If at the sole discretion of the C ity, the City finds that Permittee demonstrates to have complied in good faith with the terms and conditions of this Agreement, the Parties may enter into a written extension signed by both Parties.

3.2 Request by Permittee of Term Extension. The Term of this Agreement may be extended at the request by Permittee by written notice no later than one hundred twenty (120) calendar days before the expiration of the term and Permittee shall not be in default with respect to any provision of this Agreement or any subs equent agreement or understanding between the Parties arising from or related to this Agreement, having received notice from City of said default per this Agreement, or if Permittee did in fact default as to this Agreement, upon notice from City, that Permittee did cure said default during the period to cure provided herein to City’s satisfaction.

3.3 Termination of Agreement. Upon the termination of this Agreement, either by expiration or otherwise, Permittee shall have no right to engage in Commercial Cannabis Activity at the Project Site, except as may otherwise be allowed by City ordinance or law.

4. Defined Terms . As used in this Agreement, the following terms shall have the meanings hereinafter set forth:

4.1 Certified Report . “Certified Report” shall mean a detailed document prepared by Permittee on a form acceptable to the City’s Director of Finance to report to City of the sales by Permittee, as defined herein, in the Project during each Operational Quarter, as defined herein. Each Certified Report shall be certified as true and correct by a duly-authorized officer of Permittee. City may also require certification by Permittee.

4.2 Certification of Non -Income Tax Exemption . Permittee certifies that Permittee is not income tax exempt under State or Federal Law and that Permittee will not file for such an exemption from the Internal Revenue Service or the Franchise Tax Board. Permittee will also require all Tenant(s) to certify that Tenant(s) are not income tax exempt under State or Federal Law and will not file for such an exemption.

4.3 Gross Receipts. Except as otherwise specifically provided, means the total amount actually received or receivable from all sales and transfers; the total amount of compensation actually received or receivable for the performance of any act or service, of whatever nature it may be, for which a charge is made or credit allowed, whether or not such act or service is done as a part of or in connection with the sale of materials, goods, wares or merchandise; and discounts, gifts, rents, royalties, fees, commissions, dividends, a nd gains realized from trading in stocks or bonds, however designated. Included in “gross receipts” shall be all receipts, cash, credits and property of any kind or nature, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service costs, interest paid or payable, or losses or other expenses whatsoever, except that the following shall be excluded therefrom:

4.3.1 Cash discounts where allowed and taken on sales;
46 A-6

4.3.2 Credit allowed on proper ty accepted as part of the purchase price and which property may later be sold, at which time the sales price shall be included as gross receipts;

4.3.3 Any tax required by law to be included in or added to the purchase price and collected from the consumer or purchaser;

4.3.4 Such part of the sale price of any property returned by purchasers to the seller as refunded by the seller by way of cash or credit allowances or return of refundable deposits previously included in gross receipts;

4.3.5 Receipts derived from the occas ional sale of used, obsolete or surplus trade fixtures, machinery or other equipment used by the taxpayer in the regular course of the taxpayer’s business; and

4.3.6 Receipts of refundable deposits, except that such deposits when forfeited and taken into income of the business shall not be excluded when in excess of one dollar.

4.3.7 Retail sales of non -cannabis products, such as t -shirts, sweaters, hats, stickers, key chains, bags, books, posters, rolling papers, cannabis accessories such as pipes, pipe screens, vape pen batteries (without cannabis) or other personal tangible property.

4.4 Operational Quarter . “Operational Quarter ” shall mean any calendar quarter, or portion of a calendar quarter, during which any Gross Receipts of the Project is produced, as defined herein. The calendar quarters shall begin and end as follows: January 1 through March 31; April 1 through June 30; July 1 through September 30; and October 1 through December 31.

4.5 Land Use Regulations. “Land Use Regulations” shall mean all ordinances, resolutions, codes, rules, regulations and official policies of the 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 buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction and initial occupancy standards and specifications applicable to the Project. “Land Use Regulations” do not include any City ordinance, resolution, code, rule, regulation or official policy governing:

4.5.1 The conduct or taxation of businesses, professions, and occupations applicable to all businesses, professions, and occupations in the City;

4.5.2 Other than as provided in this Agreement, taxes and assessments of general application upon all residents of the City, provided that the taxes and assessments are not imposed for the purpose of taxing the right, power or privilege of developing or improving land (e.g., excise tax) or to directly finance the acquisition or dedication of open space or any other public improvement in respect of which the Developer is paying any fee or providing any improvement pursuant to this Agreement;

4.5.3 The control and abatement of nuisances;
47 A-7

4.5.4 The granting of encroachment permits and the conveyance of rights and interests which provides for the use of, access to or the entry upon public property, as may be approved by mutual agreement between Developer and City; and

4.5.5 The exercise of the power of eminent domain.

4.6 Existing Land Use Regulations. “Existing Land Use Regulations” means all Land Use Regulations in effect as of the approval date of this Agreement, including the Project Approvals.

4.7 Retail Fee. Shall mean five percent (5%) of Gross Receipts due to the City at the end of each Operational Quarter

5. Fee Payments.

5.1 Fee Payments. In consideration of City’s entering into this Agreement and authorizing the development and operation of the Project, the requirements for City services created by the Project, the City ensuring compliance with this Agreement, State Cannabis Laws, and the City ’s municipal ordinances, throughout the Term of this Agreement, the following payments shall be made to City:

5.1.1 Five percent (5%) of Gross Receipts for operations from the Commercial Cannabis storefront retail operations to be paid quarterly. Retail Fees shall be due to the City by the 15th of each month succeeding Operational Quarter. Failure to pay the Retail Fee within thirty 30 days after the due dat e shall result in an additional penalty for nonpayment in a sum equal to twenty -five (25%) of the total amount due. The provisions of this subsection shall survive any termination or expiration of this Agreement for any reason.

5.2 Community Benefits. Permitt ee shall contribute one percent (1%) of its Gross Receipts into a Community Investment Fund (CIF) for the term of this agreement, as extended. CIF contribution shall be calculated on an annual calendar year basis with payments due and payable on or before March 1 of the year following calendar year. By way of example, contributions based on Gross Receipts for calendar year 2024 shall be made on or before March 1, 2025. All funds are to be directed by the Community Advisory Board (CAB), a group of local community members. The CAB must at all times maintain a seat available for a representative of the City to ensure transparency. Board Member participation shall be voluntary and without compensation. The Board shall have the sole discretion of distribution an d shall facilitate annual distribution of the CIF in furtherance of community improvement in the City of Fontana. Permittee must provide a written record of all funds and their recipients, provided to the City each year during the renewal process.

5.2.1 Permittee shall encourage employees of Permittee to provide individual volunteer services within the Fontana Community. Employees that provide verifiable volunteer service to the Fontana community shall be entitled to compensation by Permittee at their regular pay rate for up to 40 hours annually. Verification of service performed shall be in the sole discretion of Permittee. Permittee shall provide documentation to City of any such employee volunteer services.
48 A-8

5.2.2 The provisions of this subsection s hall survive any termination or expiration of this Agreement for any reason.

6. Payment Procedures. The following procedures shall apply during the operation of the Project:

6.1 Remittance of Retail Fees/Certified Reports . Within thirty (30) calendar days followi ng the end of each Operational Quarter during the Term of this Agreement commencing with the first Operational Quarter in which the Project has commenced, Permittee shall submit the Certified Report to the City’s Finance Director and a payment for the Retail Fees for that Operational Quarter as identified in the Certified Report. Permittee shall pay Retail Fees to City on a quarterly basis without exception. Any material misstatement or misrepresentation in the Certified Report and any failure to pay Retail Fees when due shall constitute events of default by Permittee subject to the default provisions of this Agreement.

6.2 Maintenance of Records . Permittee shall maintain complete records of its operations to substantiate and document the content of each Certifi ed Report. Such records shall include, without limitation, invoices and payments taken by Permittee and/or any operator of the Commercial Cannabis Facility. Permittee shall maintain such records in a form and location reasonably accessible to City, following reasonable notice to Permittee, for a period of at least five (5) calendar years following Permittee ’s submission of the Certified Report to which the records apply.

6.3 Audit. The City may conduct an audit or arrange for a third -party independent audit, at Permittee’s expense, of Permittee records regarding Certified Reports and the Gross Receipts, at the sole discretion of the City. Such audit would not occur more than twice in one calendar year. The City ’s Finance Director shall provide at least seven (7) business days written notice of the commencement of such audit to Permittee, and shall reasonably attempt to schedule the audit so as to reduce the impact on Permittee operations as much as is feasible.

Permittee shall cooperate with the City in completing the audit. If the audit reveals that Permittee has underpaid the payment due at the end of any Operational Quarter, Permittee shall pay such underpaid amounts to the City within thirty (30) calendar days of receipt of written notice from the City’s Director of Finance. If the underpaid amount is more than five percent (5%) of the amount due, Permittee shall pay a penalty of an additional ten percent (10%) of Gross Receipts for first time underpayment and an additional twenty -five percent (25%) of Gross Re ceipts for any subsequent violations of the payment due at the end of the Operational Quarter. If the audit reveals that the Permittee has overpaid any amount of the Gross Receipts, City shall provide written notification to Permittee and shall credit such amount against Permittee ’s subsequent quarterly payments of Gross Receipts until the overpaid amount has been resolved.

6.4 Site Inspection . From time to time, the City has the right to inspect the Facility for the purpose of monitoring operations, checking q uantities and verifying volumes of product during operating hours or any time deemed appropriate to insure accurate reporting. The City must give notice at least forty-eight (48) hours in advance of any inspection.

7. Covenants of Permittee. During the Term o f this Agreement, Permittee hereby covenants and agrees with the City as follows:
49 A-9

7.1 Implementation. Permittee shall use commercial reasonable efforts to pursue the implementation of the Project as expeditiously as feasible, in the form approved by the City, subject to all applicable laws, this Agreement, the Operating Agreement, the Commercial Cannabis Permit and the Municipal Code.

7.2 Maintain & Operate Project . Permittee shall maintain and operate the Project on the Site, throughout the Term of this Agreement, in accordance with the Project Approvals and all City, State and Federal laws.

8. Indemnification. Permittee shall defend (with Counsel reasonably approved by the City), indemnify, and hold harmless the City and its Council, boards and commissions, officers, officials, employees, and agents from and against any and all actual and alleged liabilities, demands, claims, losses, damages, injuries, actions or proceedings and costs and expenses incidental thereto (including costs of defense, settlement and attorney’s fees), which arise out of, or which are in any way related to i) the cannabis business permit and any land use entitlement related thereto, ii) the proceedings undertaken in connection with the approval, denial, or appeal of the cannabis business permit and any land use entitlement related thereto, iii) any subsequent approvals or licensing/permits relating to the cannabis business permit and any land use entitlement related thereto, iv) the processing of the cannabis business permit and any land use entitlement related thereto, v) any amendments to the approvals for the cannabis business permit and any land use entitlement related thereto, vi) the City ’s approval, consideration, analysis, review, issuance, denial or appeal of the cannabis business permit ; vii) the City’s approval, consideration, analysis, review, issuance, denial or appeal of any land use entitlement related thereto, viii) the City’s drafting, adoption and passage of an ordinance, and related resolutions, policies, rules and regulations, allowing for cannabis businesses, ix) the City’s drafting, adoption and passage of an ordinance, and related resolutions if necessary in the future regarding any zoning law amendment(s) related to Permittee, x) the operation of Project or activity, xi) the process used by the City in making its decision to approve, consider, analyze, review, issue, or deny, my cannabis business permit or any related land use entitlement, or the appeal of either, xii) City’s compliance or failure to comply with applicable la ws and regulations or xiii) the alleged violation of any federal, state or local laws by Permittee or any of its officers, employees or agents, except where such liability is caused by the sole negligence or willful misconduct of the City.

8.1 City may (but is not obligated to) defend such challenge as City, in its sole discretion, determines appropriate, all at applicant ’s sole cost and expense. Permittee shall bear any and all losses, damages, injuries, liabilities, costs, and expenses (including, without limitation, staff time and in -house attorney’s fees on a fully -loaded basis, attorney ’s fees for outside legal counsel, expert witness fees, court costs, and other litigation expenses) arising out of or related to any challenge (“Costs”), whether incurred by Permittee, City, or awarded to any third party, and shall pay to the City upon demand any Costs incurred by the City.

8.2 Permittee shall fund a deposit account (“Fund”) to reimburse the City’s cost, including attorney’s fees, to defend any cl aim, action, or proceeding that is or may be subject to the agreement on limitations of City ’s Liability, and Certifications, Assurances Warranties, and Indemnification to City. In the event that any such claim, action, or proceeding is filed against the City, Permittee shall within 30 days of the filing deposit an initial sum of $25,000 to the Fund to 50 A-10
reimburse my portion of the City defense costs, as determined by the City in its sole discretion.

The Fund shall, once established, shall at all times contain an amount necessary to cover not less than three months’ worth of budgeted expenditures by the City relating to the City’s defense of the claim, action, or proceeding, including all time to appeal, or as long as expenditures made by the City relating to its defense remain unreimbursed, whichever is later. The City may, from time to time, in the City’s sole and absolute discretion, request additional deposits from the Permittee to ensure the fund balance is adequate to defend any claim, action or pro ceeding, including appeals related thereto. Once all remaining and outstanding reimbursements have been paid to the City by Permitee, City shall return to me any remaining unused portion of my deposit.

8.3 The provisions of this subsection shall survive any termination or expiration of this Agreement for any reason.

9. Hold Harmless.

9.1.1 Permittee hereby waives, releases, and holds harmless the City of Fontana ( “City”) and its Council, boards and commissions, officers, officials, employees, and agents from any and all actual and alleged claims, losses, damages, injuries, liabilities, costs (including attorney’s fees), suits or other expenses which arise out of, or which are in any way relate to my application for a cannabis business permit, the issuance of the cannabis business permit, the process used by the City in making its decision, the enforcement of the conditions of the cannabis business permit, or the cannabis business’ operations.

9.1.2 Permittee hereby waives, releases and holds harmless the City and its Council, boards and commissions, officers, officials, employees, and agents from any and all actual and alleged claims, losses, damages, injuries, liabilities, costs (including attorney ’s fees), suits or other expenses which arise out of, or which are in any way rel ate to: (1) any repeal or amendment of any provision of the Fontana Municipal Code or Zoning Ordinance relating to commercial cannabis activity; or (2) any investigation, arrest or prosecution of Permittee, operators, employees, clients or customers, for a violation of state or federal laws, rules or regulations relating to cannabis activities.

9.1.3 The provisions of this subsection shall survive any termination or expiration of this Agreement for any reason.

10. Covenants of City. During the Term of this Agreement, City hereby covenants and agrees with Permittee as follows:

10.1 Expeditious Services. City shall process applications and address questions and concerns raised by Permittee representatives at the “counter” at City Hall as expeditiously as reasonably possible. Upon Permittee’s request, or if, in an exercise of City’s own discretion, City staff determines that it cannot comply with this Section, City shall expeditiously engage the services of private contract planners, plan checkers or inspectors ( “Private Contr actors”) to perform such services as may be necessary to assist in processing the project plans as described herein. Compensation of such Private Contractors shall be at Permittee ’s sole cost and expense, inclusive of any administrative cost to City of integrating services by Private Contractors into the project’s development processing. Permittee shall pay such costs and expenses of Private 51 A-11
Contractors via reimbursement to City, per City ’s applicable policies and procedures. City shall have absolute discretion in the selection of such Private Contractors.

10.2 Vested Rights. During the term of this Agreement, Permittee shall have the vested right and entitlement to develop and operate the Project in accordance with the Existing Land Use Ordinances, in addition to any Commercial Cannabis Activity operating standards found in the Municipal Code, which may be amended at the City ’s discretion to minimize or eliminate safety hazards.

10.3 Building Permits and Other Approvals and Permits . Subject to (a) Permittee’s compl iance with this Agreement, the Project Approvals the Existing Land Use Ordinances, the Building Ordinances, and Operating Standards; and (b) payment of the usual and customary fees and charges of general application charged for the processing of such applications, permits and certificates and for any utility connection, or similar fees and charges of general application, the City shall process and issue to Permittee promptly upon application therefore all necessary use permits, building permits, occupancy c ertificates, permits, licenses and other required permits for the construction, use and occupancy of the Project, or any portion thereof, as applied for, including connection to all utility systems under the City’s jurisdiction and control (to the extent that such connections are physically feasible and that such utility systems are capable of adequately servicing the Project).

10.4 Procedures and Standards . The standards for granting or withholding permits or approvals required hereunder in connection with the development of the Project shall be governed as provided herein by the standards, terms and conditions of this Agreement and the Project Approvals, and to the extent not inconsistent therewith, the Existing Land Use Ordinances, but the procedures for proce ssing applications for such permits or approvals (including the usual and customary fees of general application charged for such processing) shall be governed by such ordinances and regulations as may then be applicable.

11. Effect of Agreement.

11.1 Grant of Right . This Agreement shall constitute a part of the Enacting Ordinance, as if incorporated by reference therein in full. The Parties acknowledge that this Agreement grants Permittee the right and entitlement to develop the Project and use the land pursuant to specified and known criteria and rules as set forth in the Project Approvals and Existing Land Use Ordinances, and to grant the City and the residents of the City certain benefits which they otherwise would not receive.

11.2 Binding on City . This Agreement shal l be binding upon the City and its successors in accordance with and subject to its terms and conditions, unless subsequent action is taken by the City, whether by ordinance or resolution of the City Council, by referenda, initiative, or otherwise. As long as the City permits the retail cannabis in the City, and the Operating Agreement and Development Agreement are in good standing, the Permittee shall have a right to a Commercial Cannabis Permit.

11.3 Future Conflicting Local Laws . If any Cit y law, including ordinances, resolutions, rules, regulations, standards, policies, conditions and specifications (collectively “City 52 A-12
Laws”) are enacted or imposed by a citizen -sponsored initiative or referendum, or by the City Council directly or indirectly in connection with any proposed initiative or referendum, which City Law would conflict with this Agreement, such City Law shall apply to the Project. The Parties, acknowledge that the City ’s approval of this Agreement and the City Approvals are legisla tive actions subject to referendum.

12. Specific Criteria Applicable to Development of the Project.

12.1 Applicable Ordinances. Except as set forth in the Project Approvals and subject to the provisions of Section 10.2 below, the Existing Land Use Ordinances shall govern the development of the Site hereunder and the granting or withholding of all permits or approvals required to develop the Site; provided, however, that (a) Permittee shall be subject to all changes in processing, inspection and plan-check fees and charges imposed by City in connection with the processing of applications for development and construction upon the Site so long as such fees and charges are of general application and are not imposed solely with respect to the Project Site, (b) Permittee shall abide by the Building Ordinances in effect at the time of such applications, (c) Development Impact Fees to be paid by Permittee shall be those in effect at the time permits are issued subject to those fees, and (d) development shall be consistent wit h current Operating Standards.

12.2 Amendment to Applicable Ordinances . Any change to the Existing Land Use Ordinances that conflicts with the Project Approvals shall nonetheless apply to the Project if, (i) it is determined by City and evidenced through findin gs adopted by the City Council that the change or provision is reasonably required in order to prevent a condition dangerous to the public health or safety; (ii) it is required by changes in State or Federal law; or (iii) it is otherwise expressly permitted by this Agreement. The City has adopted Operating Standards that govern this type of use, which Regulations, and any amendments thereto, shall apply to the Project.

13. Supersedure of Subsequent Laws or Judicial Action.

13.1 The provisions of this Agreement shall , to the extent feasible, be modified or suspended as may be necessary to comply with any new Law or decision issued by a court of competent jurisdiction (a “Decision”), enacted or made after the Execution Date which prevents or precludes compliance with one or more provisions of this Agreement. Promptly after enactment of any such new Law, or issuance of such Decision, the Parties shall meet and confer in good faith to determine the feasibility of any such modification or suspension based on the effect such modification or suspension would have on the purposes and intent of this Agreement. In addition, Permittee and City shall have the right to challenge the new Law or the Decision preventing compliance with the terms of this Agreement. In the event that such challenge is successful, this Agreement shall remain unmodified and in full force and effect, except that the Term shall be extended, in accordance with Section 3.1 above, for a period of time equal to the length of time the challenge was pursued, to extent such challenge delayed the implementation of the project.

13.2 The Parties recognize that California adopted, through ballot initiative, the AUMA and may adopt through initiative or legislative action other laws and regulations pertaining to either medical or adult use of cannabis. The Parties intend through this Agreement that Permittee shall have the right for retail sales of cannabis as allowed by current State Cannabis Law, 53 A-13
pertaining to Commercial Cannabis Activity. To the extent the changes in Cali fornia law change the legal process or structure by which cannabis retailers can or may operate (i.e. for -profit vs. non-profit entities, size of licensees, etc.), the Parties intend this Agreement to be flexible to allow such changes and may alter the pro cedures specified herein, by Operating Agreement as defined below, or otherwise, as may be necessary.

14. Operating Agreement . The Parties have entered into an Operating Agreement, incorporated as Exhibit C. The Operating Agreement and this Agreement are not independent of each other but are dependent on each other. Any breach of any terms of one Agreement shall constitute a breach of the other Agreement.

15. CEQA. Pursuant to the California Environmental Quality Act ( “CEQA”) (Public Resources Code §21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs.,tit. 14, §15000 et seq.), the whole of the Project, including the Development Agreement, has been reviewed and found to be exempt from CEQA pursuant to State CEQA Guidelines Section 15301, Existing Facilities and a Notice of Exemption will be filed upon adoption of this Resolution.

16. Building Permits. Nothing set forth herein shall impair or interfere with the right of City to require the processing of building permits as required by law relating to any specific improvements proposed for the Project pursuant to the applicable provisions of the City ’s municipal code, inclusive of such California and International Codes as have been adopted in accord therewith, that are in effect at the time such permits are applie d for; provided, however, no such permit processing shall authorize or permit City to impose any condition on and/or withhold approval of any proposed improvement the result of which would be inconsistent with this Agreement.

17. Review for Compliance.

17.1 Periodic Review. Pursuant to California Government Code section 65865.1, City shall engage in an annual review of this Agreement, on or before the anniversary of the Execution Date, in order to ascertain Permittee ’s good faith compliance with its terms (th e “Periodic Review”). In the event City fails to formally conduct such annual review, Permittee shall be deemed to be in full compliance with the Agreement.

18. Amendment or Cancellation . This Agreement may be amended or canceled in whole or in part only by mu tual consent of the Parties or in the manner provided in California Government Code section 65865.1 or California Government Code section 65868.

19. Provide Notice. Provide the other Party with written notice of such State or Federal law or regulation, a copy of such law or regulation and a statement identifying how such law regulation conflicts with the provisions of this Agreement.

20. Meet and Confer . Upon notice by one Party to another as to preemption or frustration of this Agreement by law o r regulation, the Parties shall promptly meet and confer in good faith and make a reasonable attempt to modify or suspend this Agreement to comply with such applicable Federal or State law or regulation. If the Parties cannot agree on a manner or 54 A-14
method to comply with such Federal or State law or regulation, the Parties may, but shall not be required to, engage in alternative dispute resolution.

21. Notices. All notices or other communications required or permitted hereunder shall be in writing and shall be ei ther personally delivered (which shall include delivery by means of professional overnight courier service which confirms receipt in writing [such as Federal Express or UPS] ), sent by telecopier or facsimile (“Fax”) machine capable of confirming transmission and receipt, or sent by certified or registered mail, return receipt requested, postage prepaid to the following parties at the following addresses or numbers:

If to City: City of Fontana
8353 Sierra Ave.

Fontana, CA 92335
Attention: City Manager

With copy to: Best, Best & Krieger, LLP, City Attorney

2855 E. Guasti Rd.

Suite 400 Ontario, CA 91761
Attention: Ruben Duran, Esq.

If to Permittee: Fontana Responsible and Compliant Retail LLC 1616 Webster St.

Alameda, CA 94501 Attention: Lauren Carpenter
With copy to: Embarc Legal
1201 K. St., Ste 922
Sacramento, CA 95814
Attention : Legal
Notices sent in accordance with this Section shall be deemed delivered upon the: (a) date of delivery as indicated on the written confirmation of delivery (if sent by overnight courier service); (b) date of actual receipt (if personally delivered by other means); (c) date of transmission (if sent by email or telecopier, so long is sender receives actual confirmation that the transmission was received); or (d) date of delivery as indicated on the return receipt (if sent by certified or registered mail, return receipt requested). Notice of change of address shall be given by written notice in the manner detailed in this Section.

22. Breach and Remedies . Notwithstanding any provision of this Agreement to the contrary, Permittee shall not be deemed to be in default under this Agreement with respect to any obligation owed solely to City, and City may not terminate or modify Permittee’ rights under this Agreement, unless City shall have first delivered a written notice of any alleged default to Permittee that specifies the nature of such default. If such default is not cured by Permittee within fourteen (14) calendar days after receipt of such notice of default, City may terminate Permittee’s rights under this Agreement. In the event that a breach of this Agreement occurs, irreparable harm is likely to occur to the non - breaching Party and damages will be an inadequate remedy. To the extent permitted by law, therefore, it is expressly recognized that injunctive relief and specific 55 A-15
enforcement of this Agreement are proper and desirable remedies, and it is agreed that any claim by Permittee against City for an alleged breach of this Agreement shall be remedied by injunctive relief or an appropriate action for specific enforcement of this Agreement and not by a claim or action for monetary damages.

23. Entire Agreement . This Agreement and the Exhibits herein contain the entire integrated agreement among the Parties. The Parties intend that this Agreement state their agreement in full to each and every one of its provisions. Any prior agreements, understandings, promises, negotiations or representations respecting the matters dealt with herein or the duties of any Party in relation thereto, not expressly set forth in this Agreement, are agreed by all Parties to be null and void.

24. Severability. If any term, provision, condition, or covenant of this Agreement, or the application thereof to any Party or circumstance, shall to any extent be held invalid or unenforceable, the remainder of the instrument, or the application of such term, provision, condition or covenant to persons or circumstances other than those as to whom or which it is held invalid or unenforceable, shall n ot be affected thereby and each term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.

25. Attorneys’ Fees. In the event any Party hereto brings an action or proceeding for a declaration of the rights of the Parties, for injunctive relief, for an alleged breach or default, or any other action arising out of this Agreement, or the transactions contemplated hereby or institutes a reference or arbitration proceeding as may expressly be permitted by the terms of this Agreement, the prevailing Party in any such action shall be entitled to an award of actual attorneys ’ fees and costs incurred in such action or proceeding, without regard to any rule of court or schedule of such fees maintained by the court, in additi on to any other damages or relief awarded, regardless of whether such action proceeds to final judgment.

26. Counterparts. This Agreement may be executed in one or more counterparts, each of which will be deemed an original, but all of which constitute one and the same instrument.

27. Execution of Agreement. The Parties shall sign this Agreement on or within five (5) business days of approval.

28. Estoppel Certificate. City shall, at any time and from time to time within ten (10) calendar days after receipt of written notice from Permittee so requesting, execute, acknowledge and deliver to Permittee a statement in writing: (a) certifying that this Agreement is unmodified and in full force and effect (or, if modified, stating the nature of such modification and certifying that this Agreement, as so modified, is in full force and effect); and (b) acknowledging that there are no uncured defaults on the part of Permittee hereunder or specifying such defaults if any are claimed. Any such statement may be relied upon by any pr ospective purchaser or encumbrancer of all or any portion of the Site. Upon Permittee’s written request, City shall issue a certificate of performance evidencing completion of any of Permittee’s obligation(s) under this Agreement.

29. Discretion to Encumber . The Parties hereto agree that this Agreement shall not prevent or limit Permittee, in any manner, at Permittee ’s sole discretion, from encumbering the Site or any portion thereof or any improvements thereon then owned by such person with any 56 A-16
mortgage, deed of trust or other security device ( “Mortgage”) securing financing with respect to the Site or such portion. City acknowledges that the lenders providing such financing may require certain modifications, and City agrees, upon request, from time to time, to meet with Permittee and/or representatives of such lenders to negotiate in good faith any such request for modification.

City further agrees that it will not unreasonably withhold its consent to any such requested modification. Any mortgagee or trust de ed beneficiary of the Site or any portion thereof or any improvements thereon and its successors and assigns ( “Mortgagee”) shall be entitled to the following rights and privileges.

30. Lender Requested Modification/Interpretation. City acknowledges that the lenders providing financing to Permittee may request certain interpretations and modifications of this Agreement. City therefore agrees upon request, from time to time, to meet with the Permittee and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. The 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, provided, further, that any modifications of this Agreement are subject to the provisions of this Agreement relative to modifications or amendments.

31. Governing Law and Venue . This Agreement and the legal relations between the Parties shall be governed by and construed in accordance with the laws of the State of California.

Furthermore, the Parties agree to venue in San Bernardino County, California.

32. Mutual Covenants. The covenants contained herein, including those contained in the Recitals 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.

33. No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the Parties . No other person or entity shall have any right of action based upon any provision of this Agreement.

34. Waiver. Failure by a Party to insist upon the strict performance of any of this Agreement’s provisions 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.

35. Time of Essence . Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.

36. Recordation of Agreement . This Agreement and any amendment or cancellation thereof shall be recorded with the Coun ty Recorder by the City Clerk within the period required by Government Code Section 65868.5.

37. Headings. The headings in this Agreement are inserted for convenience only. They do not constitute part of this Agreement and shall not be used in its construction. 57 A-17

38. Waiver. The waiver by any party to this Agreement of a breach of any provision of this Agreement shall not be deemed a continuing waiver or a waiver of any subsequent breach of that or any other provision of this Agreement.

39. Jointly Draf ted. It is agreed among the Parties that this Agreement was jointly negotiated and jointly drafted by the Parties and their respective counsel, and that it shall not be interpreted or construed in favor of or against any party solely on the ground that it drafted the Agreement. It is also agreed and represented by all Parties that said Parties were of equal or relatively equal bargaining power and that in no way whatsoever shall this Agreement be deemed to be a contract of adhesion, or unreasonable or unconscionable.

40. Independent Legal Counsel. Each Party acknowledges that it has been represented by independent legal counsel of its own choice throughout all of the negotiations that preceded the execution of this Agreement or has knowingly and voluntarily decl ined to consult legal counsel, and that each Party has executed this Agreement with the consent and on the advice of such independent legal counsel.

41. Further Cooperation. The Parties herein agree to execute any and all agreements, documents or instruments a s may be reasonably necessary in order to fully effectuate the agreements and covenants of the Parties contained in this Agreement, or to evidence this Agreement as a matter of public record, if required to fulfill the purposes of this Agreement. The Parties further agree to mutually cooperate with one another in carrying out the purposes of this Agreement.

42. Enforceability. This Agreement shall not become binding and shall have no force and effect whatsoever until such time as it has been fully executed by and delivered to all of the parties hereto.
[Signatures on following pages]
58 A-18

IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the Execution Date.
“CITY”
Date: ______________________, 2024

CITY OF FONTANA, CA
a California Municipal Corporation
By: ______________________________
Acquanetta Warren
Mayor
Attest
By: ______________________________
Germaine McClellan Key
City Clerk
Approved as to form:

Best, Best & Krieger, LLP
By: ________________________
Ruben Duran, Esq.

City Attorney

59 A-19

ACKNOWLEDGEMENT
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 of Notary

“PERMITTEE”
Date: ________________________, 2023
Fontana Responsible and Compliant Retail LLC,
a California limited liability company

By: ________________________
Its: Managing Member
Approved as to form:

By: _________________________
Eric Lightman
____________________, Esq.

Attorney for Permittee

60 A-20

ACKNOWLEDGEMENT
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 of Notary
61 A-21

Development Agreement Acknowledgement and Authorization to Record

Re: Acknowledgement of Recording of Development Agreement Upon Property I acknowledge I am the owner of the property located at 9132 Sierra Avenue, Fontana, California, 92335 (“Property”). It is my understanding that as part of the City of Fontana Commercial Cannabis Permit process, Embarc (“Tenant”) must enter into a Development Agreement with the City.

Pursuant to Government Code section 65868.5 a development agreement shall be recorded against real property with the county recorder. By means of this acknowledgement, I am consenting for the foregoing Development Agreement to be recorded against the Property. I also acknowledge that all the conditions and requirements of the Development Agreement are the sole responsibility of the Tenant, and not of the undersigned owner of the Property.
“Owner”
Date: ________________________, 2023

By: ________________________

62 A-22

ACKNOWLEDGEMENT
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 sam e 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 of Notary
63 A-23

EXHIBIT A
PARCEL NO. 019316102 DESCRIPTION

LOT 2, BLOCK 3, FONTANA ACRES NO. 5, IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 24, OF MAPS, PAGE 10, RECORDS OF SAID COUNTY.

EXCEPTING THEREFROM THE EASTERLY 5 FEET AS CONVEYED TO THE COUNTY OF SAN BERNARDINO BY DEED DATED DECEMBER 15, 1950, AND RECORDED FEBRUARY 9, 1951 IN BOOK 2716, PAGE 111, OF OFFICIAL RECORDS.

APN: 0193-161-02-0-00
64 B-1

EXHIBIT B

MAP OF THE SITE

65 C-1

EXHIBIT C

OPERATING AGREEMENT
66 C-2

OPERATING AGREEMENT FOR COMMERCIAL CANNABIS BUSINESS LOCATED IN THE CITY OF

FONTANA, CALIFORNIA
THIS OPERATING AGREEMENT (this “Operating Agreement”) for a Commercial Cannabis Business is made and entered into this __th day of _________ ,2024 (“Effective Date”), by and between the CITY OF FONTANA, a California municipal corporation (“City”) and Fontana Responsible and Compliant Retail LLC., a California Limited Liability Company, with its principal address located at 1616 ½ Webster Street, Alame da, CA 94501, (“Commercial Cannabis Business”). The City and Commercial Cannabis Business may be referred to herein individually as a “Party” and collectively as the “Parties.”

RECITALS
A. The City of Fontana, California (the “City”) is a municipal corporatio n, duly organized under the constitution and laws of the State of California.

B. The City Council adopted Ordinance No. 1899, on July 12, 2022, as amended on October 25, 2022, establishing a regulatory permit scheme for commercial cannabis activities, such th at each proposed commercial activity must have an Agreement and a regulatory permit prior to operation.

C. The Commercial Cannabis Business submitted an application to the City for a use permit to conduct certain commercial cannabis business in the City, loca ted at 9132 Sierra Ave., Fontana, California 92335 (“Subject Property”).

D. The City issued a Commercial Cannabis Permit to the Cannabis Business on September 19 2023, a true and correct copy of which is attached hereto as Exhibit A, to permit cannabis retail sales at the Subject Property, consistent with the provisions and requirements of Chapter 33 of the Fontana Municipal Code, permitting cannabis sales in the City.

E. As required by Chapter 33 of the Fontana Municipal Code, the Parties now wish to enter into this Agreement.

NOW, THEREFORE, in consideration of the mutual promises, conditions, and covenants set forth herein, the Parties agree as follows:

AGREEMENT

1. Incorporation of Recitals . The Recitals, and all defined terms set forth in this Agreement, are hereby incorporated into this Agreement as if set forth herein in full.

2. Public Benefit and Social Equity.
67 C-3

2.1 Intent. The purpose of this Agreement is to ensure positive community impacts from commercial cannabis business operations through local sourcing, community benefit and sustainable business practices, and the collection of required fees as applicable for the operation of a commercial cannabis business and to provide mitigation options to be used by City to compensate for impacts to City services, residents, and/or businesses as set forth in Fontana Municipal Code Chapter 33. The Parties agree that this Agreement confers substantial private benefits on Commercial Cannabis Business which should be balanced by commensurate public benefits. As part of the cannabis Regulatory Safety Permit process, Commercial Cannabis Business agrees to enter into this Agreement. Commercial Cannabis Business acknowledges that City and Commercial Cannabis Business have had extensive negotiations and proceedings prior to entering into this Agreement. Commercial Cannabis Business has elected to execute this Agreement as it provides Commercial Cannabis Business with important economic benefits.

Accordingly, the Parties intend to provide consideration to t he public to balance the private benefits conferred on Commercial Cannabis Business by providing mitigation measures to the public and to pay for City services.

2.2 Local Hiring and Sourcing . Commercial Cannabis Business agrees to use its reasonable efforts to hire qualified City of Fontana residents, currently living in Fontana, to work at its commercial cannabis businesses. Commercial Cannabis Business shall also use reasonable efforts to retain the services of qualified contractors and suppliers who are loca ted in the City of Fontana or who employ a significant number of City of Fontana residents. Commercial Cannabis Business shall make a good faith effort to advertise on various social media sites, at local job fairs, and through public agencies and organizations.

3. Definitions. The following terms shall have the following meanings for purposes of this Agreement, but other terms may be defined elsewhere in this Agreement.

3.1 “Commercial Cannabis Permit” means the regulatory permit issued by the City to the Commercial Cannabis Business pursuant to the provisions of Chapter 33 of the Fontana Municipal Code.

3.2 “City Permits” means and includes all building permits, use permits, zoning amendments, operating agreements, development agreements, and other permits, including the cannabis business permit, licenses, entitlements, and agreements that the City, acting in its governmental capacity, must issue or approve for the Cannabis Business to operate in accordance with the City’s regulations and this Agreement.

3.3 “Commencement Date” means the date that all of the following have occurred: (1) the City has issued all necessary City Permits; (2) the Cannabis Business has obtained all necessary State Licenses to operate; and (3) the Cannabis Business has obtained a certificate of occupancy.

3.4 “City Manager” means the City Manager and his or her designee.

3.5 “Effective Date” means the date first entered above as the Effective Date and is the date that both Parties have signed this Agreement.
68 C-4

3.6 “Manager” means a person with responsibility and authority over the establishment, management, supervision, or oversight of the operation of the Commercial Cannabis Business.

3.7 “State License(s)” means all licenses required to be issued by the State of California for operation of the Commercial Cannabis Business pursuant to Division 10 of the Business and Professions Code and applicable state regulations, including but not limited to Division 42 of Title 16, Division 8 of Title 3, and Division 1 of Title 17 of the California Code of Regulations (“CCR”), as those provisions may be amended.

3.8 “Term” means the period of time this Agreement is in effect as specified in Section 5.

3.9 “Use Permit” means the use permit, including any and all conditions of approval, issued by the City to the Commercial Cannabis Business pursuant to the City’s Zoning Code, as approved by the City Council on or about ___________, 2024 as may be amended, related to the operation of a commercial cannabis business at the Subject Property.

4. Consideration. As consideration for the rights and benefits it enjoys under this Agreement, including its operation of approved cannabis uses in the City during the Term, the Commercial Cannabis Business shall pay the City fees as set forth by Resolution by the City Council.

5. Term of Agr eement. Except as otherwise specified herein, the term of this Agreement (the “Term”) shall be for three (3) years from the Execution Date. The Term shall generally be subject to earlier termination or extension as hereinafter provided.

5.1 Term Extension. Thi s Agreement shall be subject to two (2) year extensions at the sole discretion of the City. If at the sole discretion of the City, the City finds that Permittee demonstrates to have complied in good faith with the terms and conditions of this Agreement, the Parties may enter into a written extension signed by both Parties.

5.2 Request by Permittee of Term Extension. The Term of this Agreement may be extended at the request by Permittee by written notice no later than one hundred twenty (120) calendar days before the expiration of the term and Permittee shall not be in default with respect to any provision of this Agreement or any subsequent agreement or understanding between the Parties arising from or related to this Agreement, having received notice from City of said default per this Agreement, or if Permittee did in fact default as to this Agreement, upon notice from City, that Permittee did cure said default during the period to cure provided herein to City’s satisfaction.

5.3 Termination of Agreement. Upon the termination of this Agreement, either by expiration or otherwise, Permittee shall have no right to engage in Commercial Cannabis Activity at the Project Site, except as may otherwise be allowed by City ordinance or law.

6. Business License Required. A valid City of Fontana Business License is required for all persons engaged in transacting and carrying on any commercial cannabis business activity in the City of Fontana. 69 C-5
It is unlawful for any person or legal entity to commence, transact or carry-on cannabis business activity in the City of Fontana without first having procured a City of Fontana cannabis business license.

7. Bond Requirement. Commercial Cannabis Business shall provide proof of a bond in the amount of Twenty-Five Thousand Dollars ($25,000.00) to cover the cost of enforcing the terms of Chapter 33 and this Agreement if necessitated by a violation of the licensing requirements.

8. Records and Recordkeeping.

8.1 Commercial Cannabis Business shall maintain accurate books and records in an electronic format, detailing all of the revenues and expenses of the business, and all of its assets and liabilities. On no less than an annual basis, or at any time upon reasonable request of the City, Commercial Cannabis Business shall file a sworn statement detailing the Commercial Cannabis Business’s revenue and number of sales during the previous 12-month period (or shorter period based upon the timing of the request), provided on a per-month basis. The statement shall also include gross revenues for each month, and all applicable taxes paid or due to be paid. On an annual basis, Commercial Cannabis Business shall submit to the City a financial audit of the Commercial Cannabis Business operations conducted by an independent certified public accountant. Each permittee shall be subject to a regulatory compliance review and financial audit as determined by the City.

8.2 Commercial Cannabis Business shall maintain a current register of the names and the contact information (including the name, address, and telephone number) of anyone owning or holding an interest in the Commercial Cannabis Business, and separately of all the officers, managers, employees, agents and volunteers currently employed or otherwise engaged by the Commercial Cannabis Business. The register required by this paragraph shall be provided to the City upon request.

8.3 All records collected by Commercial Cannabis Business shall be maintained for a minimum of seven years and shall be made available by the Commercial Cannabis Business to the agents o r employees of the City upon request, except that private medical records shall be made available only pursuant to a properly executed search warrant, subpoena, or court order.

8.4 Subject to any restrictions under the Health Insurance Portability and Accounta bility Act (HIPAA) regulations, Commercial Cannabis Business shall allow City officials to have access to the business’s books, records, accounts, together with any other data or documents relevant to its permitted commercial cannabis activities, for the p urpose of conducting an audit or examination. Books, records, accounts, and any and all relevant data or documents will be produced no later than 24 hours after receipt of the City’s request, unless otherwise stipulated by the City. The City may require the materials to be submitted in an electronic format that is compatible with the city’s software and hardware.

9. Records Inspection, Examination and Audit . Commercial Cannabis Business acknowledges and agrees that City is empowered under this Agreement to inspect, examine and audit Commercial Cannabis Business’s books and records (including tax filings and returns). City or its authorized agents shall have the power and authority to conduct a full inspection, examination and audit of such books and records (including tax filings and returns) at any reasonable time, including but not limited to, during normal business hours. In the event any such books, records, tax filings and returns cannot be made fully 70 C-6
available within the City of Fontana, Commercial Cannabis Business acknowledges and agrees that it shall reimburse City for the cost of all transportation, lodging, meals, portal -to-portal travel time, and other incidental costs reasonably incurred by Cit y or its authorized agents in obtaining said full inspection, examination and audit. In the event that said records inspection, examination and audit determines that a net operating agreement or development agreement fee payment deficiency of greater than five percent (5%) exists; Commercial Cannabis Business acknowledges and agrees that it shall reimburse City for the full cost of said records inspection, examination and audit reasonably incurred by City or its authorized agents.

10. General Terms and Conditio ns. The Commercial Cannabis Business shall comply with all of the following terms and conditions for the Term of this Agreement:

10.1 This Agreement is only valid for the Commercial Cannabis Business to operate at the Subject Property identified in this Agreement. The rights and obligations set forth in this Agreement shall not be transferred, assigned, or assumed unless agreed to in advance in writing by the City. The Commercial Cannabis Business expressly acknowledges, understands and agrees that nothing in th is Agreement confers any ongoing vested property right or entitlement to conduct the Commercial Cannabis Business, or any other commercial cannabis activity, at the Subject Property; this Agreement sets forth only the operational requirements of the Commer cial Cannabis Business as otherwise approved by the City and the Commercial Cannabis Business will be required to obtain a permit in accordance with Chapter 33 of the Fontana Municipal Code which the City shall issue in accordance with this Agreement.

10.2 Conditions placed on any City Permits, expressly including the Commercial Cannabis Business Permit shall be conditions and requirements of this Agreement. Violations of the City Permits shall be deemed violations of this Agreement and shall constitute a materi al breach of this Agreement.

Violations of any applicable State Licenses shall be deemed violations of this Agreement and shall constitute a material breach of this Agreement.

10.3 The Commercial Cannabis Business shall obtain and maintain at all times a valid Commercial Cannabis Permit, Use Permit, and applicable State License(s) prior to and during operation of the Cannabis Business. The City shall issue a Commercial Cannabis Permit and any other City Permits to the Commercial Cannabis Business provided that t he Cannabis Business is in compliance with the provision of Chapter 33 of the Fontana Municipal Code and State Law.

10.3.1 As soon as practicable, the Commercial Cannabis Business shall inform the City when it obtains its necessary State License(s), and shall provide a copy of the State License(s) to the City Manager. The City shall cooperate with the Commercial Cannabis Business as appropriate and as needed to facilitate the State’s issuance of a State License(s) to the Commercial Cannabis Business. Failure of the Commercial Cannabis Business to procure and produce evidence of receipt of any required state licenses within eighteen months of the effective date of this Agreement shall be deemed a material and incurable breach of the Agreement an d, this Agreement, along with any permits issued by the City for a Commercial Cannabis Business shall immediately be deemed null and void and the Commercial Cannabis Business shall be prohibited from application for a future Commercial Cannabis Business pe rmit in the City for a period of ten years.
71 C-7

10.3.2 The Commercial Cannabis Business agrees to provide City with copies of any reports provided to a State Cannabis Licensing Agency, including any required financial or compliance reports, within thirty (30) days of that submission and further agrees to keep such records in accordance with State law and Chapter 33 of the Fontana Municipal Code.

10.3.3 The City shall diligently process the Commercial Cannabis Business’s applications for all City Permits. This Agreement comm its the City in advance to approve the City Permits provided that the Commercial Cannabis Business complies with all the provisions of Chapter 33 of the Fontana Municipal Code and the requirements to obtain City Permits. Nothing in this Agreement relieves the Commercial Cannabis Business of the obligation to comply with all requirements of the Fontana Municipal Code.

10.4 The Commercial Cannabis Business agrees to comply with all applicable State Law and local laws and regulations applicable to operation of the Commercial Cannabis Business, including Chapter 33 of the Fontana Municipal Code.

10.5 The Commercial Cannabis Business agrees to conduct an annual financial audit and/or compliance review, at Commercial Cannabis Business’s cost, as requested by the City.

11. Operational Requirements. In addition to all operating requirements set forth in Chapter 33 of the Fontana Municipal Code, the Commercial Cannabis Business shall comply with the following specific operational requirements:

11.1 The Commercial Cannabis Business shall immediately notify the Fontana Police Department of any criminal activity, or suspected criminal activity, occurring at the Subject Property. In the event of any internal security system breach, including a faulty alarm system, broken or damaged surveillance cameras or other video recording equipment, or broken or damaged locks, doors, or lighting which may increase risk of criminal activity at the Subject Property, the Manager of the Commercial Cannabis Business shall notify the City Police Departmen t as soon as practicable after becoming aware of the security system breach. The Commercial Cannabis Business shall diligently attempt to fix or resolve any such security breach immediately; if circumstances require additional time and delay to remedy, the Commercial Cannabis Business shall so notify the City Police Department and provide an estimated timeline the security breach will be cured.

11.2 If the Commercial Cannabis Business receives any criminal threats, or otherwise suspects any criminal targeting re lated to movement of product or cash from or to the Subject Property, the Commercial Cannabis Business shall immediately notify the City Police Department.

11.3 Commercial Cannabis Business shall abide by the operating procedures submitted to the City, as set forth in Section 33-8(a)(8) and that are hereby attached and incorporated into this Agreement as Exhibit B. The Commercial Cannabis Business shall immediately notify City of any modifications to the operating procedures.
72 C-8

11.4 Commercial Can nabis Business shall abide by the operating requirements set forth in Sections 33-29, 33-30 and 33-31, including but not limited to, hours of operation not to exceed 9:00 am to 9:00 pm, no consumption of cannabis on premises, no cannabis or cannabis produc ts shall be visible from exterior of property, and no persons under 21 years shall be allowed on the premises. The provisions of Sections 33 -29, 33 -30 and 33 -31 shall be strictly enforced by Commercial Cannabis Business.

11.5 Commercial Cannabis Business shall abide by the requirements of Development Agreement.

12. Inspections.

12.1 The city manager, police chief, fire marshal, code compliance representative and their designees charged with enforcing the provisions of the Fontana Municipal Code may enter the Commercial Cannabis Business at any time during regular business hours, without notice, and inspect the location of the Commercial Cannabis Business as well as any recordings and records required to be maintained pursuant to this chapter or under applicable provisions of state law.

12.2 It is unlawful for any person having responsibility over the operation of the Commercial Cannabis Business, to impede, obstruct, interfere with, or otherwise not to allow, the City to conduct an inspection, review or copy records, recordings or other documents required to be maintained by the Commercial Cannabis Business under Chapter 33 or under state or local law. It is also unlawful for a person to conceal, destroy, deface, damage, or falsify any records, recordings or other documents required to be maintained by the Commercial Cannabis Business under Chapter 33 or under state or local law.

13. Default and Termination for Cause . Without prejudice to its other remedies at law or in equity, the City may terminate this Agreement for cause with thi rty (30) days’ written notice to Commercial Cannabis Business provided that Commercial Cannabis Business does not cure as set forth in section 13.7 below. Caused as used in this section is defined as:

13.1 Failure to comply with the terms of the City of Fontana Commercial Cannabis Permit issued to Commercial Cannabis Business by City;

13.2 Failure of Commercial Cannabis Business to maintain a valid active City of Fontana Business License as the commercial cannabis business approved by the Commercial Cannabis Permit and as operating;

13.3 Failure by Commercial Cannabis Business to accurately report gross receipts information or other data necessary for City to calculate/confirm operating or development agreement fees;

13.4 Failure by Commercial Cannabis Business to pay operating agreement fees and related reimbursement costs within thirty (30) days of the date those fees are due; 73 C-9

13.5 Failure by Commercial Cannabis Business to cooperate with City or City’s authorized agents in any inspection, examination and audit of Commercial Cannabis Business’s commercial cannabis business books and records (including tax filings and returns).

13.6 This Agreement will automatically terminate if:

13.6.1 Commercial Cannabis Business’s Commercial Cannabis Permit is revoked by City or is not renewed by City, or

13.6.2 Commercial Cannabis Business transfers its Commercial Cannabis Permit in violation of Fontana Municipal Code section 33-15.

13.7 Cure Period. Commercial Cannabis Business shall cure the default resulting from the cause for termination within thirty (30) days of the date of the notice of termination. If Commercial Cannabis Business fails to cure the default within thirty (30) days of the date of the notice of termination for cause, this Agreement will be terminated.

14. Termination.

14.1 The Commercial Cannabis Business may terminate this Agreement prior to expiration of the Term for the reasons and subject to the requirements set forth below. The Commercial Cannabis Business understands and acknowledges that the right to operate the Commercial Canna bis Business is expressly contingent on full compliance with Chapter 33 of the Fontana Municipal Code. As such, termination of this Agreement shall result in the immediate termination of the Commercial Cannabis Business’s operations, unless and until a new Operating Agreement is executed by the Parties.

14.2 Commercial Cannabis Business’s Termination Rights . The Commercial Cannabis Business may, at any time and in its sole discretion, effective thirty (30) days after the Commercial Cannabis Business provides wri tten notice of termination to the City. Such termination shall not relieve Commercial Cannabis Business of any outstanding or previously incurred liability, payment, or obligation to City. All fees due pursuant to the Commercial Cannabis Permit, this Opera ting Agreement or any Development Agreement between the Parties shall immediately be due and payable.

15. Indemnification.

15.1 Commercial Cannabis Business shall defend (with Counsel reasonably approved by the City), indemnify, and hold harmless the City and its Council, boards and commissions, officers, officials, employees, and agents from and against any and all actual and alleged liabilities, demands, claims, losses, damages, injuries, actions or proceedings and costs and expenses incidenta l thereto (including costs of defense, settlement and attorney’s fees), which arise out of, or which are in any way related to i) the cannabis business permit and any land use entitlement related thereto, ii) the proceedings undertaken in connection with the approval, denial, or appeal of the cannabis business permit and any land use entitlement related thereto, iii) any subsequent approvals or licensing/permits relating to the cannabis business permit and any land use entitlement related thereto, iv) the processing of the cannabis 74 C-10
business permit and any land use entitlement related thereto, v) any amendments to the approvals for the cannabis business permit and any land use entitlement related thereto, vi) the City’s approval, consideration, analysis, rev iew, issuance, denial or appeal of the cannabis business permit; vii) the City’s approval, consideration, analysis, review, issuance, denial or appeal of any land use entitlement related thereto, viii) the City’s drafting, adoption and passage of an ordina nce, and related resolutions, policies, rules and regulations, allowing for cannabis businesses, ix) the City’s drafting, adoption and passage of an ordinance, and related resolutions if necessary in the future regarding any zoning law amendment(s) related to Commercial Cannabis Business, x) the operation of Commercial Cannabis Business or activity, xi) the process used by the City in making its decision to approve, consider, analyze, review, issue, or deny, my cannabis business permit or any related land u se entitlement, or the appeal of either, xii) City’s compliance or failure to comply with applicable laws and regulations or xiii) the alleged violation of any federal, state or local laws by Commercial Cannabis Business or any of its officers, employees o r agents, except where such liability is caused by the sole negligence or willful misconduct of the City.

15.2 City may (but is not obligated to) defend such challenge as City, in its sole discretion, determines appropriate, all at applicant’s sole cost and exp ense. Commercial Cannabis Business shall bear any and all losses, damages, injuries, liabilities, costs, and expenses (including, without limitation, staff time and in-house attorney’s fees on a fully-loaded basis, attorney’s fees for outside legal counsel, expert witness fees, court costs, and other litigation expenses) arising out of or related to any challenge (“Costs”), whether incurred by Commercial Cannabis Business, City, or awarded to any third party, and shall pay to the City upon demand any Costs incurred by the City.

15.3 Commercial Cannabis Business shall fund a deposit account (“Fund”) to reimburse the City’s cost, including attorney’s fees, to defend any claim, action, or proceeding that is or may be subject to the agreement on limitations of City’s Liability, and Certifications, Assurances Warranties, and Indemnification to City. In the event that any such claim, action, or proceeding is filed against the City, Commercial Cannabis Business shall within thirty (30) days of the filing deposit an initial sum of $25,000 to the Fund to reimburse Commercial Cannabis Business’ portion of the City defense costs, as determined by the City in its sole discretion. The Fund, once established, shall at all times, until conclusion of the claim, proceedings, or action, contain an amount necessary to cover not less than three months’ worth of budgeted expenditures by the City relating to the City’s defense of the claim, action, or proceeding, including all time to appeal, or as long as expenditures made by the City r elating to its defense remain unreimbursed, whichever is later. The City may, from time to time, in the City’s sole and absolute discretion, request additional deposits from the Commercial Cannabis Business to ensure the fund balance is adequate to defend any claim, action or proceeding, including appeals related thereto.

Once all remaining and outstanding reimbursements have been paid to the City by Commercial Cannabis Business, and upon resolution of the claim, proceeding or action, City shall return any remaining unused portion of deposit.

15.4 The provisions of this subsection shall survive any termination or expiration of this Agreement for any reason.
75 C-11

16. Waiver, Release and Hold Harmless

16.1 Commercial Cannabis Business hereby waives, releases, and holds harmless the City of Fontana (“City”) and its Council, boards and commissions, officers, officials, employees, and agents from any and all actual and alleged claims, losses, damages, injuries, liabilities, costs (including attorney’s fees), suits or other expenses which arise out of, or which are in any way relate to my application for a cannabis business permit, the issuance of the cannabis business permit, the process used by the City in making its decision, the enforcement of the conditions of the cannabis business permit, or the cannabis business’ operations.

16.2 Commercial Cannabis Business hereby waives, releases and holds harmless the City and its Council, boards and commissions, officers, officials, employees, and agents from any and all actual and alleged claims, losses, damages, injuries, liabilities, costs (including attorney’s fees), suits or other expenses which arise out of, or which are in any way relate to: (1) any repeal or amendment of any provision of the Fontana Municipal Code or Zoning Ordinance relating to commercial cannabis activity; or (2) any investigation, arrest or prosecution of Commercial Cannabis Business, or the cannabis business’ owners, operators, employees, clients or customers, for a violation of state or federal laws, rules or regulations relating to cannabis activities.

16.3 The provisions of this subsection shall survive any termination or expiration of this Agreement for any reason.

17. Notice. Any notice or other communication provided pursuant to this Agreement m ust be in writing and shall be considered properly given and effective only when mailed or delivered in the manner provided by this Section to the persons identified below. A mailed notice or other communication shall be considered given and effective on the third day after it is deposited in the United States Mail (certified mail and return receipt requested). A notice or other communication sent in any other manner will be effective or will be considered properly given when actually delivered. A Party may change its address for these purposes by giving written notice of the change to the other Party in the manner provided in this Section.

If to City: City of Fontana
8353 Sierra Ave.

Fontana, CA 92335
Attention: City Manager

With copy to: Best, Best & Krieger, LLP, City Attorney

2855 E. Guasti Rd.

Suite 400 Ontario, CA 91761
Attention: Ruben Duran, Esq.
76 C-12

If to Permittee: Fontana Responsible and Compliant Retail LLC 1616 Webster St.

Alameda, CA 94501 Attention: Lauren Carpenter
With copy to: Embarc Legal
1201 K. St., Ste 922
Sacramento, CA 95814
Attention : Legal

17.1 “Force Majeure Event” means a cause of delay that is not the fault of the Party who is required to perform under this Agreement and is beyond that Party’s reasonable control, including the elements (such as floods, earthquakes, windstorms, and unusually severe weather), fire, energy shortages or rationing, riots, acts of terrorism, war or war-defense conditions, acts of any public enemy, epidemics, pandemics, the actions or inactions of any governmental entity (excluding the City) or that entity’s agents, including any “stay at home” or “safer at home” and/or any other governmental order requiring the Commercial Cannabis Business to temporarily cease operations, litigation, labor shortages (including shortages caused by strikes or walkouts), and materials shortages.

17.2 Except as otherwise expressly provided in this Agreement, if the performance of any act required by this Agreement to be performed by either the City or Commercial Cannabis Business is prevented or delayed because of a Force Majeure Event, then the time for performance shall be extended for a period equivalent to the period of delay, and performance of the act during the period of delay will be excused.

18. Waiver. A Party’s failure to insist on strict performance of this Agreement or to exercise any right or remedy upon the other Party’s breach of this Agreement shall not constitute a waiver of any performance, right, or remedy. A Party’s waiver of the other Party’s breach of any provision in this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of the same or any other provision. A waiver is binding only if set forth in writing and signed by the waiving Party.

19. Relationship of Parties. This Agreement does not create any employment relationship, ownership interest, or other association between the City and Commercial Cannabis Business. Nothing herein shall be construed to create the relationship of principal and agen t, partnership or other joint venture between the City and Commercial Cannabis Business.

20. Attorneys’ Fees . The Party prevailing in any litigation concerning this Agreement, the Subject Property, or the Commercial Cannabis Business operations, shall be entitled to an award by the court of reasonable attorneys’ fees and litigation costs. If the City is the prevailing party, then this Section shall apply whether the City is represented in the litigation by the designated City Attorney or by outside counsel.

21. Jurisdiction and Venue . This Agreement has been executed and delivered in the State of California and the validity, interpretation, performance, and enforcement of any of the clauses of this 77 C-13
Agreement shall be determined and governed by the laws of the State of California. Both parties further agree that San Bernardino County, California, shall be the venue for any action or proceeding that may be brought or arise out of, in connection with or by reason of this Agreement.

22. Severability. If a court with competent jurisdiction finds any provision of this Agreement to be invalid, void, or unenforceable, then the remaining provisions shall remain in full force and effect, and to this end this Agreement shall be severable.

23. Counterparts. The Par ties may execute this Agreement in counterparts, each of which shall constitute an original, but all of which shall collectively constitute this same Agreement.

24. Disclaimer. Despite California’s commercial cannabis laws and the terms and conditions of this Agreement or any Commercial Cannabis Permit issued pertaining to Commercial Cannabis Business or the hereinabove specified property location, California commercial cannabis cultivators, transporters, distributors, cannabis testing facility/laboratory busin esses or possessors may still be subject to arrest by federal officers and prosecuted under federal law. The Federal Controlled Substances Act, 21 USC § 801 et seq., prohibits the manufacture, manufacturing, and possession of cannabis without any exemptions for medical or non-medicinal use.

25. Integration and Modification . This Agreement sets forth the Parties’ entire understanding and agreement regarding the matters addressed herein. This Agreement supersedes all prior or contemporaneous agreements, representations, and negotiations (written, oral, express, or implied) and may be modified only by written agreement signed by both Parties.

IN WITNESS WHEREOF, the parties enter into this Agreement as of the Effective Date.

City of Fontana Fontana Responsible and Compliant
Retail LLC

By: By:

City Manager Lauren Carpenter
Dated: , 2024 Dated: , 2024

Approved as to Form Fontana
City Attorney

By:

City Attorney

78 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2669 Agenda Date: 2/13/2024
Agenda #: D. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Accept Additional Recreational Trails Program Grant Funds for the Construction of the San Sevaine Trail, Phase 1, Segment 2 Project
RECOMMENDATION:

1. Accept additional grant funds from the State of California Department of Parks and Recreation in the amount of $1,000,000.00 to construct the San Sevaine Trail, Phase 1, Segment 2 Project.

2. Authorize the City Manager, or designee, to execute the Amendment to the Agreement with the State of California Department of Parks and Recreation for the San Sevaine Trail, Phase 1, Segment 2 Project.

COUNCIL GOALS:
· To concentrate on Inter-governmental relations by working cooperatively with neighboring jurisdictions.
· To concentrate on inter-governmental relations by pursuing financial participation from county, state and federal governments.
· To invest in the City’s infrastructure (streets, sewers, parks, etc.) by providing for the development of new infrastructure.

DISCUSSION:

In January 2016, the City Council accepted two grants for the design and construction of the San Sevaine Trail, Phase 1, Segment 2 project, a multi-user trail that is 1.25 miles long beginning at the Pacific Electric Trail (PE Trail) in the City of Fontana and terminating at Banyan Street in the City of Rancho Cucamonga. The trail will be constructed along the west side of the East Etiwanda Creek/San Sevaine Flood Control Channel.

The two grants awarded in 2016 were from the Air Quality Management District (AQMD) Mobile Source Air Pollution Reduction Committee (MSRC) in the amount of $500,000.00 and the State of California Department of Parks and Recreation Recreational Trails Program (RTP) in the amount of $2,467,897.00.

In January 2020, the City Council accepted additional grant funds from the State of California Department of Parks and Recreation RTP in the amount of $2,992,519.00 and in September 2023, a grant from the Carbon Reduction Program (RCP) in the amount of $2,721,400 was accepted for the San Sevaine Trail, Phase 1, Segment 2 Project. These are in addition to funds in the amount of $576,000.00 contributed by the City of Rancho Cucamonga. The additional $1,000,000.00 in RTP City of Fontana Printed on 2/6/2024Page 1 of 2
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79 File #: 21-2669 Agenda Date: 2/13/2024
Agenda #: D. Category: Consent Calendar
Grant funds will increase the total project grant and outside agency funding contribution to $10,257,816.00.

In December 2023, a construction contract was awarded by the City Council for the project in the amount of $13,314,324.00 with a contingency amount of $1,331,432.00. The increase in RTP Funds contributes to fully funding the project for construction, relieving the allocation of Park Development Funds that were made to fund the construction contract.

An amendment to the Agreement with the State Department of Parks and Recreation is required for the additional grant funds that have been awarded to the City. The amendment identifies a grant amount of $6,460,416 with a contract amount of $5,714,096, which deducts reimbursements received to date.

FISCAL IMPACT:

The fiscal impact associated with the approval of this item is an increase revenues and expenditures in Grant Fund #301 of $1,000,000 for to the San Sevaine Trail, Phase 1, Segment 2 Project No. 3345. The required budget adjustments will be reflected in the mid-year budget adjustments.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 2/6/2024Page 2 of 2
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80 City of Rancho Cucamonga
City of Fontana
City Limit
Vicinity Map
81 State of California – Natural Resources Agency

DEPARTMENT OF PARKS AND RECREATION

AMENDMENT TO CONTRACT

Contract No. C8546003-01 Amendment No. 1

THIS AMENDMENT is hereby made and agreed upon by the State of California, acting through the Director of the Department of Parks and Recreation and by the City of Fontana

The State and, City of Fontana in mutual consideration of the promises made herein and in the contract in which this is an amendment, do promise as follows:

Increase contract grant amount to: $5,714,096.

Increase federal grant award to: $6,460,416

Rate of Reimbursement remains: 83.15%

In all other respects, the contract of which this is an amendment, and the terms and conditions if relevant thereto, shall remain in full force and effect. In witness whereof the parties hereto have executed this amendment as of the date entered below.

STATE DEPARTMENT OF PARKS AND RECREATION
Applicant: City of Fontana

By

Title City Manager/Engineer Director
Applicant’s Authorized Representative as shown in Resolution

Date

By

Date

CERTIFICATION OF FUNDING
(FOR STATE USE ONLY)

CONTRACT NO
C8546003-01

AMENDMENT NO
1 FISCAL SUPPLIER I.D.
0000011705

PROJECT NO
RT-36-012C

AMOUNT ENCUMBERED BY THIS

DOCUMENT
$5,714,096
FUND
Recreational Trails Fund

PRIOR AMOUNT ENCUMBERED BY THIS

CONTRACT
$4,714,096
ITEM
3790-101-0858

CHAPTER
43 STATUTE
22 FISCAL YEAR
2023/24

TOTAL AMOUNT ENCUMBERED TO DATE
$5,714,096
Reporting Structured
37900091
Account/Alt Account
5432000-
5432000000

ACTIVITY CODE
68652

PROJECT/WORK
PHASE
091022-00

82 1
Grant Contract for Grants Funded by Recreational Trails Program

GENERAL PROVISIONS

A. Definitions

The term "Act" as used herein means the Recreational Trails Program pursuant to state and federal statutes.

1. The term “Application” as used herein means the individual Project Application and its required attachments for Grants pursuant to the enabling legislation and/or Grant program.

2. The term “Acquisition” means to obtain fee title or easement of real property. Leases or rentals do not constitute Acquisition.

3. The term “Department” means the California Department of Parks and Recreation.

4. The term “Development” means Capital Improvements to real property by construction.

5. The term "Grantee" as used herein means the party described as the Grantee on page 1 of this Contract.

6. The term "State" as used herein means the State of California Department of Parks and Recreation.

B. Project Execution

1. Subject to the availability of Grant monies in the Act, the State hereby Grants to the Grantee a sum of money (Grant monies) not to exceed the amount stated on page 1, or 88% of costs, whichever is less, in consideration of, and on condition that, the sum be expended in carrying out the purposes as set forth in the Scope described in the enabling legislation, and on page 1, and under the terms and conditions set forth in this Contract.

The Grantee shall assume any obligation to furnish any additional funds that may be necessary to complete the Grant Scope. Any modification or alteration in the Project as set forth in the Application on file with the State must be submitted to the State for approval.

2. The Grantee shall complete the Grant Scope in accordance with the time of Grant Performance Period set forth on page 1, and under the terms and conditions of this Contract.

3. The Grantee shall comply with the California Environmental Quality Act (Public Resources Code, Section 21000, et. seq., Title 14, California Code of Regulations, Section 15000 et. seq.) and the National Environmental Policy Act.

4. The Grantee shall comply with all applicable current laws and regulations affecting Development Projects, including, but not limited to, legal requirements for construction contracts, building codes, health and safety codes, and laws and codes pertaining to individuals with disabilities. 83 2

5. Prior to the commencement of any work, the Grantee agrees to submit any significant deviation from the original Grant Scope in writing to the State for prior approval. Changes in the Grant Scope must be approved in writing by the State.

6. If the Grant Scope includes Acquisition of real property, the Grantee agrees that lands acquired with Grant monies shall not be acquired through the use of eminent domain.

7. If the Grant Scope includes Acquisition of real property, the Grantee will comply with the terms of Title II and Title III, the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970 (P.L. 91-646), 94 Stat. 1894 (1970), and the applicable regulations and procedures implementing such Act for all real property Acquisitions and where applicable shall assure that the Act has been complied with for property to be developed with assistance under the Contract and the Grantee agrees to comply with the California Government Code Chapter 16 commencing with Section 7260 et seq. and all applicable federal, state and local laws or ordinances affecting relocation and real property Acquisition. Documentation of such compliance will be made available for review upon request by the State.

8. The Grantee shall provide for public access to Project facilities in accordance with the intent and provisions of the Recreational Trails legislation and/or Grant program.

C. Project Costs

The Grant moneys to be provided Grantee under this contract may be disbursed as follows:

1. If the Project includes Acquisition of real property, the State may disburse the amount of the State approved purchase price together with State approved costs of Acquisition (or 88% of the Project costs, whichever is less), but not to exceed in any event the Grant amount set forth on page 1 of this Contract, upon completion of the Acquisition.
a. After the property is in escrow, the Grantee may request an Advance up to 80% of the Grant or 100% of the actual Acquisition cost, whichever is less. The Department shall immediately distribute these funds to the title company charged with the transfer of property ownership. b. The remaining Grant amount shall be paid up to the total Grant amount or the actual Project cost, whichever is less, on completion of the Grant Scope and receipt of the Grant Completion Packet from the Grantee.

2. If the Project includes Development, completion of the Project or any phase or unit thereof, State may disburse to Grant recipient upon receipt and approval by State of a statement of incurred costs from Grant Recipient, the amount of such approved incurred costs shown on such statement, not to exceed the State Grant amount set forth on page 1 of this contract, (or 88% of the Project costs, whichever is less) or any remaining portion of such Grant amount to the extent of such statement.
a. On proof of award of a construction contract or commencement of construction by Force Account payment schedule, up to 50% Advance of the Grant amount, or a 80% reimbursement of the Grant amount (30% reimbursement with a 50% Advance), not to exceed 80% of the total dollar amount of any or all awarded construction contracts. b. The remaining Grant amount shall be paid up to the total Grant amount or the actual Project cost, whichever is less, on completion of the Grant Scope and receipt of the Grant Completion Packet from the Grantee.

3. If the Project includes Operations or Program costs, the State may disburse Grant monies to the Grantee as follows, but not to exceed in any event the total Grant amount set forth of page 1 of this Contract:
a. On proof of a signed contract or agreement, or commencement of operation or program by Force Account payment schedule, up to 50% Advance of the Grant amount, or a 80% 84 3
reimbursement of the Grant amount (30% reimbursement with a 50% Advance), not to exceed 80% of the total dollar amount of any or all awarded contracts or agreements. b. The remaining Grant amount shall be paid up to the total Grant amount or the actual Program cost, whichever is less, on completion of the Program and receipt of a detailed summary of Program costs from the Grantee.

4. The statements to be submitted by the Grantee shall set forth in detail the incurred cost of work performed or to be performed on development of the Project and whether performance will be by construction contract or by Force Account.

5. Statements/payment requests shall be submitted to the State not less than twice a calendar year, beginning from the date of federal approval/contract performance start date.

D. Budget Contingency Clause

1. If funding for any fiscal year is reduced or deleted by the Budget Act for purposes of this program, the State shall have the option to either cancel this contract with no liability occurring to the State, or offer a Contract amendment to Grantee to reflect the reduced amount.

E. Project Administration

1. If grant monies are advanced, and not placed into escrow, the Grantee shall place these monies in a separate interest bearing account, setting up and identifying such account, prior to the Advance.

Interest earned on grant monies shall be used on the Project as approved by the State. If grant monies are advanced and not expended, the unused portion of the grant and any interest earned shall be returned to the State within 60 days of completion of the Grant Scope or end of the Grant Performance Period, whichever is earlier.

2. Grantee agrees that income earned by the Grantee from a State approved non-recreational use on the Project shall be used for recreational purposes at the Project, or, if approved by the State, for recreational purposes within the Grantee’s jurisdiction.

3. The Grantee shall promptly submit written Project Reports as the State may request. In any event, the Grantee shall provide the State a report showing total final Project expenditures.

4. The Grantee shall make property or facilities acquired and/or developed pursuant to this Contract available for inspection upon request by the State.

5. The Grantee shall make any program developed or administered pursuant to this Contract available for observation upon request by the State.

F. Project Termination

1. Any Grant funds that have not been expended by the Grantee shall revert to the fund.

2. The Grantee may unilaterally rescind this Contract at any time prior to the commencement of the Project. After Project commencement this Contract may be rescinded, modified or amended only by mutual agreement in writing between the Grantee and the State.

3. Failure by the Grantee to comply with the terms of this Contract or any other Contract under the enabling legislation may be cause for suspension of all obligations of the State hereunder. However, such failure shall not be cause for the suspension of all obligations of the State hereunder if in the judgment of the State such failure was due to no fault of the Grantee. In such case, any amount 85 4
required to settle at minimum cost any irrevocable obligations properly incurred shall be eligible for reimbursement under this Contract.

4. Because the benefit to be derived by the State, from the full compliance by the Grantee with the terms of this Contract, is the preservation, protection and net increase in the quantity and quality of parks, public recreation facilities and/or Historical Resources available to the people of the State of California and because such benefit exceeds to an immeasurable and unascertainable extent, the amount of money furnished by the State by way of Grant monies under the provisions of this Contract, the Grantee agrees that payment by the Grantee to the State of an amount equal to the amount of the Grant monies disbursed under this Contract by the State would be inadequate compensation to the State for any breach by the Grantee of this Contract. The Grantee further agrees therefore, that the appropriate remedy in the event of a breach by the Grantee of this Contract shall be the specific performance of this Contract, unless otherwise agreed to by the State.

5. The Grantee and the State agree that if the Grant Scope includes Development or a Program, final payment may not be made until the Project conforms substantially to this Contract.

G. Hold Harmless

1. The Grantee shall waive all claims and recourse against the State including the right to contribution for loss or damage to persons or property arising from, growing out of or in any way connected with or incident to this Contract except claims arising from the concurrent or sole negligence of the State, its officers, agents, and employees.

2. The Grantee shall indemnify, hold harmless and defend the State, its officers, agents and employees against any and all claims, demands, damages, costs, expenses or liability costs arising out of the Acquisition, Development, construction, operation or Maintenance of the property described as the Project which claims, demands or causes of action arise under California Government Code Section 895.2 or otherwise except for liability arising out of the concurrent or sole negligence of the State, its officers, agents, or employees.

3. The Grantee agrees that in the event the State is named as codefendant under the provisions of California Government Code Section 895 et. seq., the Grantee shall notify the State of such fact and shall represent the State in the legal action unless the State undertakes to represent itself as codefendant in such legal action in which event the State shall bear its own litigation costs, expenses, and attorney’s fees.

4. The Grantee and the State agree that in the event of judgment entered against the State and the Grantee because of the concurrent negligence of the State and the Grantee, their officers, agents, or employees, an apportionment of liability to pay such judgment shall be made by a court of competent jurisdiction. Neither party shall request a jury apportionment.

5. The Grantee shall indemnify, hold harmless and defend the State, its officers, agents and employees against any and all claims, demands, costs, expenses or liability costs arising out of legal actions pursuant to items to which the Grantee has certified. The Grantee acknowledges that it is solely responsible for compliance with items to which it has certified.

H. Financial Records

1. The Grantee shall maintain satisfactory financial accounts, documents and records for the Project and to make them available to the State for auditing at reasonable times. The Grantee also agrees to retain such financial accounts, documents and records for three years following Project termination or final payment.

2. Grantee shall keep such records as the State shall prescribe, including records which fully disclose (a) the disposition of the proceeds of state funding assistance, (b) the total cost of the Project in 86 5
connection with such assistance that is given or used, (c) the amount and nature of that portion of the Project cost supplied by other sources, and (d) any other such records as will facilitate an effective audit.

3. The Grantee and the State agree that during regular office hours each of the parties hereto and their duly authorized representatives shall have the right to inspect and make copies of any books, records or reports of the other party pertaining to this Contract or matters related thereto. The Grantee shall maintain and make available for inspection by the State accurate records of all of its costs, disbursements and receipts with respect to its activities under this Contract. Such accounts, documents, and records shall be retained by the Grantee for at least three years following Project termination.

4. The Grantee shall use a generally accepted accounting system.

I. Use of Facilities

1. The Grantee agrees that the Grantee shall operate the property acquired, developed, rehabilitated, or restored with the funds in perpetuity. In the case of lands not held in fee by the Grantee, perpetuity shall be in accordance with the tenure or the length of time sufficient to provide public benefits commensurate with the type and duration of interest in the land held by the Grantee.

2. The Grantee agrees to use the property only for the purposes of the Grant and to make no other use, sale, or other disposition or conversion of the property except as authorized by a specific act of the Legislature and the property shall be replaced with property of equivalent value and usefulness as determined by the Department.

3. The property acquired or developed may be transferred to another eligible Applicant if the successor Grantee assumes the obligations imposed under this Contract and with the concurrence of the Department.

J. Nondiscrimination

1. The Grantee shall not discriminate against any person on the basis of sex, race, color, national origin, age, religion, ancestry, sexual orientation, or disability in the use of any property or facility developed pursuant to this Contract.

2. The Grantee shall not discriminate against any person on the basis of residence except to the extent that reasonable differences in admission or other fees may be maintained on the basis of residence and pursuant to law.

3. All facilities shall be open to members of the public generally, except as noted under the special provisions of this Project Contract or under provisions of the enabling legislation and/or Grant program.

K. Application Incorporation

1. The Application and any subsequent change or addition approved by the State is hereby incorporated in this Contract as though set forth in full in this Contract.

L. Severability

1. If any provision of this Contract or the Application thereof is held invalid, that invalidity shall not affect other provisions or Applications of the Contract which can be given effect without the invalid provision or Application, and to this end the provisions of this Contract are severable.

87 6

SPECIAL PROVISIONS
A. Build America, Buy America
As required by Section 70914 of the Bipartisan Infrastructure Law (also known as the Infrastructure Investment and Jobs Act), P.L. 117-58, on or after May 14, 2022, none of the funds under a federal award that are part of Federal financial assistance program for infrastructure may be obligated for a project unless all of the iron, steel, manufactured products, and construction materials used in the project are produced in the United States, unless subject to an approved waiver. The requirements of this section must be included in all subawards, including all contracts and purchase orders for work or products under this program. Recipients of an award of Federal financial assistance are hereby notified that none of the funds provided under this award may be used for a project for infrastructure unless:

1. all iron and steel used in the project are produced in the United States--this means all manufacturing processes, from the initial melting stage through the application of coatings, occurred in the United States;

2. all manufactured products used in the project are produced in the United States —this means the manufactured product was manufactured in the United States; and the cost of the components of the manufactured product that are mined, produced, or manufactured in the United States is greater than 55 percent of the total cost of all components of the manufactured product, unless another standard for determining the minimum amount of domestic content of the manufactured product has been established under applicable law or regulation; and

3. all construction materials are manufactured in the United States—this means that all manufacturing processes for the construction material occurred in the United States.

The Buy America preference only applies to articles, materials, and supplies that are consumed in, incorporated into, or affixed to an infrastructure project. As such, it does not apply to tools, equipment, and supplies, such as temporary scaffolding, brought to the construction site and removed at or before the completion of the infrastructure project. Nor does a Buy America preference apply to equipment and furnishings, such as movable chairs, desks, and portable computer equipment, that are used at or within the finished infrastructure project but are not an integral part of the structure or permanently affixed to the infrastructure project.

For further information on the Buy America preference go to: https://www.fhwa.dot.gov/bipartisan- infrastructure-law/technical_support.cfm. Additional information also available at the White House Made in America Office website: https://www.whitehouse.gov/omb/management/made-in-america/.

Questions pertaining to waivers should be directed to the financial assistance awarding officer.

Definitions
“Construction materials” includes an article, material, or supply that is or consists primarily of:
 non-ferrous metals;
 plastic and polymer-based products (including polyvinylchloride, composite building materials, and polymer s used in fiber optic cables);
 glass (including optic glass);
 lumber;
 or drywall.

“Construction Materials” does not include cement and cementitious materials, aggregates such as stone, sand, or gravel, or aggregate binding agents or additives.

“Domestic content procurement preference’’ means all iron and steel used in the project are pro duced in the United States; the manufactured products used in the project are produced in the United States; or the construction materials used in the project are produced in the United States.

“Infrastructure” includes, at a minimum, the structures, facilities, and equipment for, in the United States, roads, highways, and bridges; public transportation; dams, ports, harbors, and other maritime facilities; intercity passenger and freight railroads; freight and intermodal facilities; airports; water systems , including drinking water and wastewater systems; electrical transmission facilities and systems; utilities; broadband 88 7
infrastructure; and buildings and real property. Infrastructure includes facilities that generate, transport, and distribute energy.

‘‘Project’’ means the construction, alteration, maintenance, or repair of infrastructure in the United States.

The Grantee must comply with Buy America requirements for all steel and iron permanently incorporated in a project funded under title 23. (23 USC §135 and 23 CFR §635.410)

Projects funded after December 26, 2014, are required to follow the Office of Management and Budget’s Uniform Administrative Requirements, Cost Principals and Audit Requirements for Federal Awards.” (CFR Title 2, Chapter II, Part 200 et. seq.)

_City of Fontana___________________

GRANTEE

By:__________________________________
Signature of Authorized Representative

Title: _City Manager/Engineer Director__________________

Date: _________________________________

STATE OF CALIFORNIA

DEPARTMENT OF PARKS AND RECREATION

By: _________________________________

Date: _________________________________

89 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2755 Agenda Date: 2/13/2024
Agenda #: E. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Final Acceptance of the Blanchard Avenue Sidewalk Gap Project RECOMMENDATION:

Accept as complete the work performed by SNZ Contractors, Inc for the construction of the Blanchard Avenue Sidewalk Gap Project (#37603115) and approve the final construction amount of $109,273.75 (Bid No. SB-126-DE-23).

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

DISCUSSION:

On September 12, 2023, the City Council authorized the award of a construction contract to the lowest responsible/responsive bidder (SNZ Contractors, Inc) in the amount of $115,095.00 with a 10% contingency in the amount of $11,509.50 for the Blanchard Avenue Sidewalk Gap Project (#37603115). The proposed improvements for the Blanchard Avenue Sidewalk Gap Project consisted of constructing missing sidewalk in front of four residential properties to create a continuous path of travel. The project also reconstructed existing driveways and an existing curb ramp to be compliant with the latest Americans with Disabilities Act (ADA) requirements along the east side of Blanchard Avenue, just south of Miller Avenue. The improvements ultimately enhanced pedestrian path of travel for residents in the vicinity.

SNZ Contractors, Inc completed the construction of the project on December 13, 2023. The project was successfully completed for the final contract amount of $109,273.75, a decrease of 5.06% from the original contract amount of $115,095.00 and $17,330.75 under the total authorized budget. All work has been completed to the satisfaction of the City.

FISCAL IMPACT:

There is no fiscal impact with the approval of this item.

MOTION:

Approve staff recommendation.

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90 N01 inch = 600 feet1200600
PROJECT LOCATIONBLANCHARD AVENUE SIDEWALK GAPPROJECT (PN3115) 91 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2765 Agenda Date: 2/13/2024
Agenda #: F. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Final Acceptance of the Foothill Boulevard Pavement Rehabilitation Project, from East Avenue to Hemlock Avenue and All Streets South of Foothill Boulevard to County Line RECOMMENDATION:

Accept as complete the work performed by Matich Corporation for the Foothill Boulevard Pavement Rehabilitation Project (#37604130) and approve the final construction amount of $3,097,309.28 (Bid No. SB-117-DE-23).

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

DISCUSSION:

On June 13, 2023, the City Council authorized the award of a construction contract to the lowest responsible/responsive bidder (Matich Corporation) in the amount of $3,086,152.00 with a 10% contingency in the amount of $308,615.20 for the Foothill Boulevard Pavement Rehabilitation Project (#37604130). The proposed improvements for the Foothill Boulevard Pavement Rehabilitation Project consisted of 2” grind and overlay, full depth removal, slurry seal pavement improvements, as well as ADA curb ramp upgrades. The project will ultimately prolong the life of the streets within the project limits and brought our ADA curb ramps up to code.

Matich Corporation completed the project on December 11, 2023. The project was successfully completed for the final amount of $3,097,309.28, an increase of .36% from the original contract amount of $3,086,152.00 and $297,457.92 under the total authorized budget. All work has been completed to the satisfaction of the City of Fontana.

FISCAL IMPACT:

There is no fiscal impact with the approval of this item.

MOTION:

Approve staff recommendation.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2769 Agenda Date: 2/13/2024
Agenda #: G. Category: Consent Calendar
FROM:

Housing
SUBJECT:

Family Homelessness Challenge Grant Round 2 Application RECOMMENDATION:

Authorize the City Manager, or his designee, to execute and transmit any documents necessary to ensure the City's timely submittal of the Family Homelessness Challenge Grant Round 2 Application COUNCIL GOALS:
· Practice sound fiscal management by pursing grant opportunities. · 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.
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by address Homelessness through proactive programs, including the efforts of the COAST and MET teams.
· Concentrate on Inter-governmental relations by pursuing financial participation from county, state and federal governments.

DISCUSSION:

The California Interagency Council on Homelessness (Cal ICH) was created in 2017 to oversee the implementation of Housing First policies, guidelines, and regulations to reduce the prevalence and duration of homelessness in California.

On March 1, 2022, Cal ICH released a Request for Applications (RFA) in conjunction with the Family Homelessness Challenge Grant, Round 1 (FHC-1). The Housing Department submitted an application on April 30, 2022, and was subsequently awarded the full amount of $2,726,608 in June 2022. These funds have been utilized to construct an efficiency unit and a detached ADU at the Bridge of Hope Emergency Shelter. This shelter now houses three families with children.

Funds are also being used to provide Street Outreach, Interim Shelter, Rapid Rehousing, Delivery of Permanent Housing units, Services coordination, systems support, operating subsidies as well as administration funds to cover the cost of program delivery.

On December 29, 2023, Cal ICH released RFA for the Family Homelessness Challenge Grant, Round 2 (FHC-2). Grantees that were awarded Round 1 funds, remain in compliance with FHC-1 requirements and demonstrate reasonable, sufficient progress toward their self-identified goals may apply now for the second round of grant funding.

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94 File #: 21-2769 Agenda Date: 2/13/2024
Agenda #: G. Category: Consent Calendar
Cal ICH has requested innovative applications that accelerate efforts by local jurisdictions and continuums of care to address and end family homelessness by making families’ experience of homelessness rare, brief, and one-time.

Staff has structured the enhanced program to include the following key components:
· Additional case management through street outreach, interim housing, and permanent housing
· Additional hotel/motel vouchers for unsheltered families · Financial Assistance/Support for those families transitioning or “graduating” from interim housing to permanent housing
· Administration and staff costs
FISCAL IMPACT:

There is no fiscal impact associated with the approval of this item. There is $15.0 million of grant funding available in the FHC-2 program and if awarded, staff will return to Council for final acceptance of the grant.

MOTION:

Approve Staff Recommendation.
.

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95 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2784 Agenda Date: 2/13/2024
Agenda #: H. Category: Consent Calendar
FROM:

Police Department
SUBJECT:

Police Department Monthly Information Update
RECOMMENDATION:

Accept the Police Department monthly information update for December 2023.

COUNCIL GOALS:
· Operate in a businesslike manner by creating a memorable customer experience with every interaction.
· Increase citizen involvement by informing the public about issues, program, and accomplishments.
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses.

DISCUSSION:

The December 2023 monthly information report has been completed. Once the report is accepted by the City Council it will be featured on the Department website.

FISCAL IMPACT:

There is no fiscal impact.

MOTION:

Approve staff recommendation.

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96 POLICE DEPARTMENT

MONTHLY REPORT
December 2023
97 NOTEWORTHY EVENTS
• Fontana Police Department ICAC Unit arrested a prolific child predator. • Lieutenant Dills conducted an Area Commander Meeting in Area 4 at Mary Vagle Nature Center.
• Lieutenant Adam Clabaugh graduated the LAPD Advanced Leadership Academy. • Animal Services held an affordable pet vaccine clinic at Jessie Turner Center. • Fontana Police Traffic Unit partnered with San Bernardino County Probation to identify DUI probationers illegally operating motor vehicles.
• Fontana Police served over 120 meals to local seniors at the Senior Center. • Fontana Police partnered with Target and shopped for local children. • Three new Fontana Police Officers graduated the police academy. • RRT and Narcotic Units seized multiple illegal firearms and illegal narcotics throughout the month.

KA1
98 Slide 2
KA1 Kevin Anderson, 2/9/2021
99 100

CITYWIDE
• Priority 1 response time- 4:24 (Emergency calls like subject not breathing, shots fired, and other immediate risk to life/safety)
• Calls for service- 9,004
• Total Traffic Accidents- 224
• Non-Injury- 179, Injury - 45
• Total arrests- 422
• Hispanic- 285, White- 56 , Black- 59, All others races- 23 • Total Group A Offenses- 666
• Crimes Against Persons- 161
• Crimes Against Property- 362
• Crimes Against Society- 143
101
CITYWIDE• Crimes Against Person- 161
• Homicide- 1
• Sex Offenses- 4
• Assault- 153
• Kidnapping- 3
• Other- 0
• Crimes Against Property- 362
• Robbery- 22
• Burglary- 25
• Larceny- 131
• Destruction of Property- 37
• Fraud- 27
• Possession of Stolen Property- 39
• Motor Vehicle Theft- 68
• Other Miscellaneous Property Crimes- 13
• Crimes Against Society- 143
• Drug and Paraphernalia Possession- 105
• Possession of Child Pornography- 5
• Possession of Weapons- 32
• Other Miscellaneous Crimes- 1
102

CRIMES BY BEAT
• Police Department Beat system is NOT
geographically the same as City Council
representation Districts
• Beat 1- All area north of 210 Freeway
• Beat 2- All area south of 210 Freeway and
north of Foothill
• Beat 3- All area south of Foothill and north
of 10 Freeway
• Beat 4- All area south of the 10 Freeway
Area 1
Area 2
Area 3
Area 4
103
BEAT 1

AREA COMMANDER IS LIEUTENANT KYLE SLUSSER
EMAIL- [email protected]
DESK- (909) 350-7716
• Total Group A Offenses- 60
• Crimes Against Persons- 13
• Crimes Against Property- 40
• Crimes Against Society- 7
104
BEAT 2

AREA COMMANDER IS LIEUTENANT MATT KRAUT
EMAIL- [email protected]
DESK- (909) 356-7142
• Total Group A Offenses- 144
• Crimes Against Persons- 42
• Crimes Against Property- 81
• Crimes Against Society- 21
105
BEAT 3

AREA COMMANDER IS LIEUTENANT CHRIS TUSANT
EMAIL – [email protected]
DESK – (909) 350-7706
• Total Group A Offenses- 302
• Crimes Against Persons- 82
• Crimes Against Property- 157
• Crimes Against Society- 63
106
Beat 4

AREA COMMANDER IS LIEUTENANT TRACY DILLS
EMAIL – [email protected]
DESK – (909) 350-7707
•Total Group A Offenses- 117
•Crimes Against Persons- 21
•Crimes Against Property- 81
•Crimes Against Society- 15
107

ADDITIONAL USEFUL INFORMATION
• For more information regarding specific geographical crime data, visit www.crimemapping.com and enter your zip code
• Police Department information line- (909) 350-7740
• Police Department Dispatch non-emergency line- (909) 350-7700 • Anonymous crime reporting (909) 356-TIPS to leave a recorded message
• Report Graffiti on City Property- (909) 350-GONE
• Office of the Chief- (909) 350-7702 or [email protected] 108
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2790 Agenda Date: 2/13/2024
Agenda #: I. Category: Consent Calendar
FROM:

Housing
SUBJECT:

Prohousing Incentive Pilot Program Resolution Authorizing Submittal of Application and Other Grant Related Documents..End
RECOMMENDATION:

1. Adopt Resolution No. 2024-005 a resolution of the City Council of the City of Fontana authorizing application for, and receipt of, up to $1,090,000 of Prohousing Incentive Program Funds.

2. Authorize the City Manager to execute and transmit any documents necessary or appropriate to ensure the City's timely submission of the Prohousing Incentive Pilot Program application.

COUNCIL GOALS:
· Concentrate on Inter-governmental relations by establishing partnerships and positive working relationships with other public agencies providing services to residents and local businesses. · Concentrate on Inter-governmental relations by pursuing financial participation from county, state, and federal governments.

DISCUSSION:

On December 15, 2022, the State Department of Housing and Community Development (HCD) announced that the City of Fontana was one of the seven cities statewide awarded the Prohousing Designation. This designation recognizes Fontana for its commitment to policies and practices in removing barriers to housing production. Concurrent with the designation announcement, HCD launched the new Prohousing Incentive (PIP) grant program. The grant program is open only to jurisdictions which hold the Prohousing Designation. According to the program guidelines, Fontana is eligible for up to $1,090,000 in funding and the application is due by March 15, 2024.

The PIP program requires City Council authorization to submit the application and funds are awarded on a first-come first-serve basis. If Fontana is awarded, the funds will used for the development of housing and associated programs. As a result, Staff recommends the City Council Adopt Resolution No. 2024-005, a resolution of the City Council of the City of Fontana Authorizing staff to submit an application for Prohousing Incentive (PIP) Award.

The Prohousing Incentive Program (PIP), is funded through Chapter 364, Statutes of 2017 (SB2, Atkins), which established the Building Homes and Jobs Trust Fund. Five percent of annual collections are deposited in a fund to be used for an incentive program. The PIP program awards funds based on jurisdiction size and Prohousing Designation Program score. The program awards City of Fontana Printed on 2/8/2024Page 1 of 2
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File #: 21-2790 Agenda Date: 2/13/2024
Agenda #: I. Category: Consent Calendar
funds based on the eligible applicant’s Prohousing Designation Program Score. This round of program funding provides awards for eligible applicants to use towards planning and implementation activities related to housing and community development.

FISCAL IMPACT:

If awarded by the state, and approved by the City Council, the City will receive up to $1,090,000 in grant funds and the applicable revenue and expenditure budgets will be included in the next quarterly budget report.

MOTION:

Approve staff recommendation.

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110

RESOLUTION NO. 2024-xxxx

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA AUTHORIZING APPLICATION FOR, AND RECEIPT OF, Prohousing Incentive Program funds.

WHEREAS, pursuant to Health and Safety Code 50470 et. Seq, the California Department of Housing and Community Development (Department) is authorized to issue Guidelines as part of an incentive program (hereinafter referred to by the Department as the Prohousing Incentive Program or “PIP”); and
WHEREAS, the City Council of The City of Fontana desires to submit a PIP grant application package (“Application”), on the forms provided by the Department, for approval of grant funding for eligible activities toward planning and implementation activities related to housing and community development as a result of meeting eligibility criteria including but not limited to Prohousing Designation; and WHEREAS, the Department has issued Guidelines and Application on January 23, 2024 in the amount of $9,483,402.17 for PIP;
Now, therefore, the City Council of The City of Fontana (“Applicant”) resolves as follows:

Section 1. The City Manager is hereby authorized and directed to submit an Application to the Department in response to the NOFA, and to apply for the PIP grant funds in a total amount not to exceed $1,090,000;
Section 2. In connection with the PIP grant, if the Application is approve d by the Department, the City Manager of the City of Fontana is authorized and directed to enter into, execute, and deliver on behalf of the Applicant, a State of California Agreement (Standard Agreement) for the amount of $1,090,000.00 and any and all other documents required or deemed necessary or appropriate to evidence and secure the PIP grant, the Applicant’s obligations related thereto, and all amendments thereto; and Section 3. The Applicant shall be subject to the terms and conditions as specified in the Guidelines, and the Standard Agreement provided by the Department after approval. The Application and any and all accompanying documents are incorporated in full as part of the Standard Agreement. Any and all activities funded, information provided, and timelines represented in the Application will be enforceable through the fully executed Standard Agreement. Pursuant to the Guidelines and in conjunction with the terms of the Standard Agreement, the Applicant hereby agrees to use the funds for 111
Resolution No. 2024-xxxx

eligible uses and allowable expenditures in the manner presented and specifically identified in the approved Application.

APPROVED and ADOPTED 13rd day of February, 202 4 by the City Council of The City of Fontana by the following vote count:

READ AND APPROVED AS TO LEGAL FORM:

__________________________________
City Attorney
I, Germaine McClellan Key, City Clerk of the City of Fontana, and ex-Officio Clerk of the city Council, do hereby certify that the foregoing resolution is the actual resolution duly and regularly adopted by the City Council at a regular meeting on the 13th day of February, 2024 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

112
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2801 Agenda Date: 2/13/2024
Agenda #: J. Category: Consent Calendar
FROM:

Housing
SUBJECT:

Homeless Housing, Assistance and Prevention Program (HHAP-4) Round 4 Grant Application RECOMMENDATION:

Authorize the City Manager, or his designee, to execute and transmit any documents necessary to ensure the City's San Bernardino County Office of Homeless Services Homeless Housing, Assistance and Prevention Program Round 4 Grant Application COUNCIL GOALS:
· Practice sound fiscal management by pursing grant opportunities. · 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.
· Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by address Homelessness through proactive programs, including the efforts of the COAST and MET teams..
· Concentrate on Inter-governmental relations by pursuing financial participation from county, state and federal governments.

DISCUSSION:

On January 18, 2024 The Office of Homeless Services, designated by the San Bernardino City and County Continuum of Care (SBC CoC) as the Administrative Entity, released an Request for Applications (RFA) seeking qualified Applicants to provide services under the Homeless Housing, Assistance and Prevention Program, Round 4 (HHAP-4). HHAP-4 funds are intended to support regional coordination and expand or develop local capacity to address homelessness challenges.

Efforts are focused on moving homeless individuals and families, or individuals and families at-risk of homelessness, into permanent housing and supporting those individuals and families to maintain permanent housing.

There are five regions to be served within SBC CoC: 1) Central Valley Region; 2) Desert Region; 3) East Valley Region; 4) Mountain Region; and 5) West Valley Region. The City of Fontana falls into the Central Valley Region. HHAP-4 funding available to applicants within the Central Valley Region is $2,094,209.32. Applicants within the Central Valley Region are also restricted to a maximum budget request of $350,000.

Applications for HHAP-4 funds are strongly encouraged to prioritize the use of funds to assist people City of Fontana Printed on 2/6/2024Page 1 of 2
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File #: 21-2801 Agenda Date: 2/13/2024
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experiencing literal homelessness move into safe, stable housing. HHAP funding should be housing- focused - either funding permanent housing interventions directly or, if used for shelter or street outreach, have clear pathways to connect people to permanent housing options.

Eligible activities under the HHAP-4 funds are Street Outreach, Rapid Rehousing, Interim Shelter, Rapid Rehousing, Delivery of Permanent Housing units, Services coordination, systems support, operating subsidies, Prevention and Shelter Diversion and improvements to existing emergency shelters.

FISCAL IMPACT:

There is no fiscal impact associated with the approval of this item. The maximum grant award amount is $350,000 for the HHAP-4 program and if awarded, staff will return to Council for final acceptance of the grant.

MOTION:

Approve Staff Recommendation.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2803 Agenda Date: 2/13/2024
Agenda #: K. Category: Consent Calendar
FROM:

Development Services
SUBJECT:

Award and approve agreement for management and operation of Stage RED.

RECOMMENDATION:

1. Award bid (DS-24-16-SP) and authorize the City Manager to execute the agreement with ASM Global and Madison Entertainment for operational and management services for Stage RED.

2. Approve and Authorize the City Manager and/or his designee(s) to make non-material changes to the agreement and execute any future amendments required for the operation of Stage RED.

COUNCIL GOALS:
· Promote economic development by pursuing business attraction, retention, and expansion. · Practice sound fiscal management by living within our means while investing in the future. · Invest in the City’s infrastructure (streets, sewers, parks, etc.) by maintaining and improving the city's existing infrastructure.

DISCUSSION:

The City of Fontana has undertaken an expansive and comprehensive revitalization of Downtown Fontana. The specific geographic area to be targeted includes Upland Avenue to the North, Orange Avenue to the South, Mango Ave to the East and Juniper Ave to the West.

A primary component of this revitalization effort will be creating an entertainment district as a draw for consumers to enjoy as they discover the new downtown area. Stage Red is the keystone to the creation of this new entertainment district for the city.

Specifications for the rebranding, renovation and reconstruction of the venue have been developed in direct consultation with Mr. Hagar and his design development team. The plans are now complete, and renovations are underway.

Operation and management of this one-of-a-kind venue falls outside of the scope or ability of city staff. Upon execution of the contract, ASM Global will assume responsibility for all aspects of daily operations and management of the venue, including food and beverage service, technical support for sound, lighting, and recording, as well as ticket sales. The City, as well as artist’spromoters, will participate with ASM Global and Madison Entertainment on the booking and marketing of specific City of Fontana Printed on 2/7/2024Page 1 of 2
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File #: 21-2803 Agenda Date: 2/13/2024
Agenda #: K. Category: Consent Calendar
entertainment events. The City will retain the right to approve all artist bookings.

ASM Global was established in 2019 through a merger of SMG and AEG Facilities, providing more than 50 years of combined venue management and live event experience expertise, with SMG’s operations dating from 1977 and AEG Facilities forming in 2007.

In January 2023, ASM Global acquired Madison Entertainment-music industry professionals with expertise in talent acquisition, event production and planning, and promotion. Over the past 30 years, they have booked acts for clubs, theaters, concert halls, festivals, and private events. Madison Entertainment has a proven track record of booking musical acts, artists, and comedians for clubs and theaters throughout the Americas.

ASM will perform all operational management for Stage RED, including food and beverage purchase, preparation, service, sales, and management, audio visual management, talent bookings, ticket sales and promotional tasks for the venue. In addition, ASM will be responsible for daily required maintenance and cleaning for the facility. The City will remain responsible for structural repairs and major maintenance items.

Contract Terms:

1. Three-year term, with the option to extend for up to two additional three-year terms.

2. Compensation to ASM includes:
a. monthly management fee of $5,000 for pre-opening services, increasing to $10,000 upon opening.
b. 7% of the gross revenue from all food and beverage sales. c. 10% of the gross revenue for parking services provided, if any. d. 50% of venue rental fees related to private events.
e. 25% of sponsorship revenue
f. 20% of net operating profit
FISCAL IMPACT:

The fiscal impact associated with the approval of this agreement is $345,000 (Management Fee only) and is not included in the 2023-24 current budget. Necessary documentation has been provided to the Budget Office to facilitate adjustments in the Mid-Year Budget Status Report including the establishment of Fund 720 - Stage Red Operations.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 2/7/2024Page 2 of 2
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STAGE RED VENUE

OPERATING AGREEMENT

BY AND BETWEEN

THE CITY OF FONTANA
AND

ASM GLOBAL, LLC

Dated as of ___________________
Tracking Number: __-__-__-24
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TABLE OF CONTENTS

1. Term. .................................................................................................................................. 2

2. Operating and Management of Venue. ........................................................................... 2

3. Financial Provisions; Fees and Revenue. ........................................................................ 6

4. Operations, Utilities, Permits and Taxes. ..................................................................... 10

5. Reporting, Records and Budget. ................................................................................... 11

6. Maintenance; Repairs and Appearance........................................................................ 12

7. Additions and Alterations. ........................................................................................... 13

8. Assignment. .................................................................................................................... 14

9. Advertising. .................................................................................................................... 14

10. Default; Termination of Agreement .............................................................................. 14

11. Indemnification. .............................................................................................................. 16

12. Insurance. ........................................................................................................................ 17

13. Representations and Warranties. .................................................................................. 19

14. Surrender of Possession.. ................................................................................................ 20

15. Notice. .............................................................................................................................. 20

16. Force Majeure. ................................................................................................................ 21

17. Severability.. .................................................................................................................... 21

18. Compliance with Laws. ................................................................................................ 21

19. Discrimination Prohibited. ............................................................................................. 21

20. Litigation.. ........................................................................................................................ 21

21. Remedies to be Non-Exclusive. ...................................................................................... 21

22. Time is of the Essence. .................................................................................................... 22

23. Integrated Agreement. .................................................................................................... 22

24. Written Waiver. .............................................................................................................. 22

25. Successors and Assigns. .................................................................................................. 22

26. Future Acts and Cooperation. ....................................................................................... 22

27. Frustration of Purpose. .................................................................................................. 22

28. Destruction of Property. ................................................................................................. 22

LIST OF EXHIBITS

EXHIBIT A Naming Rights Agreement
EXHIBIT B Floor Plan of Venue
EXHIBIT C Depiction of Parking Facilities
EXHIBIT D ASM Proposal

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1 STAGE RED VENUE OPERATING AGREEMENT
(FONTANA, CALIFORNIA)

THIS STAGE RED VENUE OPERATING AGREEMENT (“Agreement”), is entered on this 1st day of March, 2024 (the “Effective Date”) between the City of Fontana, a California municipal corporation (“ City”) and ASM Global , LLC , a Delaware limited liability company (“ASM”). City and ASM are sometimes referred to in this Agreement, individually as “ Party” and collectively as “Parties.”

RECITALS
WHEREAS, the City is the owner of that certain real property with a multi-use indoor event center, located at 8463 Sierra Avenue, Fontana, CA 92335 and referred to as Stage Red, a Sammy Hagar Venue , Fontana, California, sometimes referred to as “Stage Red” or “Venue,” and
WHEREAS, the use of the name of the Venue is via a Grant of License c onveyed by Red Head Inc., and is subject to the terms and conditions of that certain Naming Rights Agreement dated September 22, 2022 by and between the City and Red Head Inc. , attached hereto as Exhibit “A” and by this reference incorporated herein; and WHEREAS, the City has completed the redesign and will soon complete the renovation of Stage Red; and
WHEREAS, upon completion of the renovation project, Stage Red will be the premier intimate location for live entertainment in the region featuring three distinctive experiences for fans and, with a general admission , there will be standing room capacity of approximately on hundred ninety ( 190), a premium seating area hosting approximately ninety ( 90), and a VIP seating area limited to forty (40); and
WHEREAS, the floor plan of Stage Red is depicted on the attached Exhibit “B” and by this reference incorporated herein; and
WHEREAS, in addition to the renovations to the Venue, the City is in the process of constructing a four -level parking structure (“Parking Structure ”) adjacent to the Venue to ensure adequate parking as shown in the attached Exhibit “C” and by this reference incorporated herein; and
WHEREAS, from the Opening Date of the Venue until such time the Parking Structure is completed, the City intends to make parking available in the adjace nt underground parking garage located at 8437 Sierra Ave, Fontana, CA. The Parking Structure and the parking set forth in this paragraph shall be hereinafter referred to collectively as “Parking”; and WHEREAS, City issued a Request for Proposals (RFP DS -24-16-SP) for a qualified organization to operate, manage and maintain Stage Red to which ASM submitted its proposal to operate, manage and maintain Stage Red as further described in the attached Exhibit “D” and by this reference is incorporated herein; and
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2 WHEREAS, ASM has extensive experience in venue management and in the production, planning and promotion of live entertainment events; and WHEREAS, the City desires to engage ASM, on the terms and conditions set forth below, to operate , manage and maintain Stage Red in a high quality manner including, but not limited to, deliver live music or comedic performers to the Venue, through direct booking and promotion or by participation with other promoters and talent managers , provide marketing and promotion se rvices, guest services, premium food and beverages, parking and state of the art technology services all to be provided in a safe and secure facility for guests, exhibitors, entertainers and employees.

NOW, THEREFORE, in consideration of the mutual promise s, covenants and agreements contained in this Agreement, the Parties agree as follows:

1. Term.

1.1 Initial Term. The term of this Agreement shall commence on March 1, 2024 and shall continue for a term of thirty-six (36) months ending on February 28, 2027 unless terminated as provided herein (“Term”).

1.2 Option to Extend . The City may, in its sole discretion, renew the Term of this Agreement, by written agreement, for up to two (2) three-year periods (not to extend beyond March 1, 2033 ) upon providing written noti ce to ASM at least ninety (90) days prior to the expiration of the then -current Term. Should the City not p rovide written notice to ASM at least ninety (90) days prior to the expiration of the then -current Term , this Agreement shall automatically renew an d shall continue for the same length of term amount as the prior Term, subject to acceptance by ASM.

Upon termination or expiration of this Agreement, the obligations of the Parties shall cease except for the obligations under Section 12 and such liability or obligations of ASM and/or City that accrued or were to be performed prior to such termination of expiration.

2. Operating and Management of Venue.

2.1 Operating Agreement.

2.1.1 This Agreement is for the operation, management, general maintenance, and supervision of the Venue. ASM shall have exclusive authority over the day-to-day operation of the Venue and all activities therein; provided that ASM shall follow any existing policies and ordinances of the City and subject to restrictions noted in Exhibit A, attached hereto. ASM may not change the name of the Venue or market the Venue under any other name or with any unapproved marketing material which uses the name or official logo of the Venue. Use of the Venue name, Stage RED, a Sammy Hagar Venue, Fontana, Cali fornia, is under a license, that certain Naming Rights Agreement and ASM shall not violate the terms of said license. The responsibilities and obligations of ASM are to commence upon the Effective Date of this Agreement. ASM shall undertake the obligatio ns described herein (“Pre-Opening Services”) for 120
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3 all activities necessary and to be performed by or before the City’s anticipated opening date of June 1, 2024 (“Opening Date”) to ensure the successful opening of the Venue . A grand opening event featuring Sammy Hagar is tentativel y scheduled on Saturday, June 15 , 2024 or a date that is subsequently and mutually determined by the Parties.

2.1.2 Provide day to day administrative services pursuant to approved budgets and annual plans, including, but not limited to t he acquisition of services and supplies, internal budgeting and accounting, maintenance and property management, personnel functions, record - keeping, collections, and other services.

2.1.3 ASM is an independent contractor , and not an employee of City. No employee or agent of ASM shall be considered an employee of the City. ASM shall pay all wages, salaries, and other amounts due such personnel in connection with their performance of any services under this Agreement and as required by law. ASM shall be responsibl e for all reports and obligations respecting such personnel, including, but not limited to ; social security taxes, income tax withholding, unemployment insurance, and workers' compensation insurance.

2.1.4 No land, property, building, structure, improvement, equ ipment, space, or fixture is leased to ASM. ASM is not a lessee of the City.

2.1.5 ASM has the right and obligation to operate the Venue in accordance with the terms of this Agreement, including the right to execute contracts, which shall be binding commitments for the Venue. ASM shall procure, prepare, serve, and sell food and beverages at the Venue, market, sell, and distribute tickets for entry to the Venue , issue and execute contracts with performers for the Venue, and take other discretionary actions with in the scope and obligations of this Agreement.

2.1.6 License to Use Venue . The City hereby grants to ASM a non-exclusive license to use the Venue in order to conduct the activities reasonably necessary to perform ASM’s obligations hereunder, and that license shall continue in effect throughout the term of this Agreement.

2.1.7 Parking. The City shall include a sufficient number of parking spaces (in the Parking Structure anticipated to be completed in January, 2025) immediately adjacent to and east of the Venue that complies with all ADA, handicap and reserved parking restrictions . For the period of time from the Opening Date until completion of the Parking Structure, the City will make available parking spaces in an underground parking garage located adjace nt to the Venue located at 8437 Sierra Ave, Fontana, CA. for scheduled event s at the Venue. (collectively both locations are referred to as the “Parking”) In connection with providing the operation and management services for the Venue, ASM shall control t he use and operation of the Parking, including without limitation, ASM shall have the right to operate the Parking itself or to subcontract out such operation to a third -party parking operator, and shall include all revenue generated in connection with such parking operation in ASM's calculation of Gross Operating Revenue (as defined below in Section 3.11.1). ASM shall provide parking attendants for the Parking and may provide valet service for any scheduled events at the Venue.

2.1.8 Minimum Utilization Standard. Subject to Force Majeure and City's 121
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4 compliance with its obligations under this Agreement, ASM covenants and agrees to use its good faith effort to utilize the Venue for at least the Minimum Utilization Standard (as defined below) after the initia l partial Operating Year (the portion of the first year after the Opening Date) , subject to interruption of business actually caused by casualty or condemnation and a reasonable period for periodic remodeling, repairs or maintenance. For purposes of this A greement, the Minimum Utilization Standard shall mean that ASM agrees to use its best and good faith effort for securing one hundred (100 ) annual Events (as defined herein) in the initial Term of this Agreement, and provided the Term of this Agreement is e xtended, one hundred seven ty-five (175) annual Events in any subsequent Term of this Agreement. For the purposes of this Agreement, the term “Events” shall include any ticketed or non -ticketed performance or event and any such “Event” shall be counted towards the Minimum Utilization Standard.

2.1.9 City shall maintain responsibility for evaluating ASM’s performance of the obligations described herein, including any licensed service provider. City shall retain the right of approval for any booking of the V enue, which shall be at the City’s reasonable discretion.

2.2 Pre-Opening Services. From the Effective Date until the Opening Date, subject to the limitations set forth in this Agreement, ASM shall undertake the following activities ("Pre - Opening Services") in connection with the preparation of Stage Red to conduct business on and after the Opening Date:

2.2.1 Develop and implement, subject to review and approval by City, a pre - opening marketing plan and budget through the first year of operation of the Venue following the Opening Date for purposes of (a) selling all commercial rights with respect to the Venue, including pouring rights and sponsorship, subject to the Naming Rights Agreement, and (b) attracting patrons to the Venue on and after the Opening Date in accordance with the goals of the pre-opening marketing plan and budget; provided that ASM shall use its commercially reasonable efforts to accomplish the sale of commercial rights and the goals of the marketing plan.

2.2.2 Negotiate licenses and bookings for, and promote, post-opening events.

2.2.3 Negotiate agreements with food and beverage vendors, merchandise concessionaires subject to the separate agreement pertaining to the revenue for sale of Merchandise referenced in Section 3.3 of this Agreement , and any other vendors deemed necessary or appropriate by ASM.

2.2.4 Recruit and arrange for the employment of an initial staff for the Venue; train such staff in the operations of the Venue; and develop procedures as necessary to open and operate the Venue in accordance with this Agreement.

2.2.5 Establish and implement all additional policies and procedures necessary to open and operate the Venue in accordance with the terms of this Agreement, including policies regarding general operations, accounting systems and controls, food and beverage.

2.3 Operator General Obligations . Upon the Opening Date, in addition to any other obligations set forth in this Agreement, and subject to any exceptions identified in this 122
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5 Agreement, ASM shall be responsible for calendar and event management and the following:

2.3.1 ASM shall coordinate and contract for all live performances, concerts and entertainment activities at the Venue.

2.3.2 ASM shall obtain and maintain in good standing a California Alcoholic Beverage Control License.

2.3.3 ASM sha ll obtain and maintain in good standing a permit from the San Bernardino Health Department.

2.3.4 When the Venue is open to the public, including private party events, ASM shall ensure the safe operation and use of the Venue in accordance with all rules, regulations, and ordinances of the City.

2.3.5 ASM shall take reasonable measures , including but not limited to, providing appropriate staffing levels, including security personnel, to create and maintain an orderly and safe environment at the Venue.

2.3.6 ASM shall manage a ll procurement, preparation, service and sale of all food and beverage for the venue and shall recruit, select, hire, employ, and manage all qualified “front of house” staff for the Venue, including but not limited to; servers, bartenders, cooks, dishwashers, security personnel, parking attendants, hosts, and managers or supervisors. ASM shall operate or have a reputable and qualified third person or entity operate food, beverage concessions in connection with operating the Venue. Concession agreements shal l include any such contract provisions as may be reasonably required by City.

2.3.7 ASM shall recruit, select, hire, employ and manage all qualified “back of house” personnel including, but not limited to; accounting and finance management, support staff for loa ding and unloading of entertainment equipment for performers, assistance in acclimating entertainer and entertainer support crew to the venue including technology and facility a ccommodations, venue management including talent bookings, ticket sales and box office, advertising and marketing, sound engineer, lighting and video technician, general maintenance and cleaning of the venue and general venue operations.

2.3.8 ASM shall establish, for approval by City, operating and procedures plans for Venue, including an emergency response plan.

2.3.9 ASM shall develop, implement , and manage a marketing plan for maximizing of revenue related to sponsorships and corporate brand partnerships.

2.3.10 ASM shall regulate the entry of all persons to the Venue.

2.3.11 As further described in Secti ons 3.8 and 5 , ASM shall generate, deliver and administer event reconciliations and provide quarterly statements to the City detailing revenue from all events/services.
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6 2.3.12 ASM shall operate of the Venue in a manner consistent with industry standards for facilities of the same character.

2.3.13 ASM shall pay, when due, all expenses of ASM related to the operation of the Venue. The term “Operating Expense" means all expenses paid or incurred by Operator in connection with the operation of the Venue. Notwithstanding the foregoing, "Operating Expenses" shall not include (1) property taxes or similar charges levied on the Venue (2) the cost of any capital expenditures (determined in accordance with GAAP) in excess of Five Thousand Dollars ($5,000.00) per item unless Owner and Operator otherwise agree in writing (it being the intent of the parties that individual capital expenditures below that amount be accounted for and treated as an Operating Expense); (3) any reserve for (i) the replacement of Furnishings, Fixtures and Equipment (FF&E) or (ii) any future capital expenditures; (4) principal, interest or any other amounts payable by City in connection with any financing secured by or in connection with the Venue; and (5) all insurance premiums and other charges incurred by City in connection with the insurance required to be maintained by City hereunder.

2.3.14 ASM shall engage in such advertising, solicitation, and promotional activities as ASM deems necessary or appropriate to advertise ASM events at the Venue.

2.4 Community Use . ASM shall, upon reasonable notice from City, and subject to availability and after taking into account prior commitments, make Venue available for use by City to conduct public or civic events up to sixteen (16) times each year, not more than eight (8) of which events shall occur in the evening . Such use shall be rent -free; provided that the user of Venue shall be responsible fo r reimbursing ASM for all costs associated with ASM providing staffing or food and beverage services at the event. Any tickets sold f or such community events shall not be subject to ticket surcharges or revenue sharing with ASM. Any public or civic Event set forth above, shall be counted towards the Minimum Ut ilization Standard set forth in Section

2.1.8 above.

2.5 City Event Tickets. City shall be entitled to, free of all charges and fees, ten VIP seating tickets for all events at Venue.

2.6 No Partnership or Joint Venture. ASM and the City acknowledge that neither is the other’s agent, partner or fiduciary and that this Agreement was drafted at arm’s length and shall be performed as a matter of arm’s length contract and not as a joint venture, partnership or other arrangement that might give rise to fiduciary or other extra -contractual duties or obligations not stated herein.

3. Financial Provisions; Fees and Revenue.

3.1 Management Fee Schedule. The City shall pay ASM an annual management fee on a monthly basis as follows:

3.1.1 Pre-Opening Date Management Fee . From the Effective D ate of this Agreement until the opening of the Venue, the Management Fee shall be $5,000 per month.

3.1.2 Post-Opening Date Management Date Fee. From and after the O pening Date of the Venue, the Management Fee shall be $10,000 per month , for each full month of 124
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7 operation. Should the Opening Date occur on any date other than the 1 st of a month, then the Management Fee for that month shall be the Pre-Opening Date Management Fee amount.

3.1.3 Renewal / Contract Extensions . In the event this Agreement is renewed/extended after the Initial Term , as defined in Section 1. 1, the Parties shall meet and confer in good faith to consider the amount of the Management Fee(s) for the remaining term of the Agreement, including available extensions. Upon mutual agreement of the Parties, if applicable, the Agreement shall be amended to reflect any changes to the Management Fee.

3.2 Food and Beverage Revenue Sharing. ASM shall be entitled to receive an amount equal to seven percent (7%) of the gross revenue of food and beverage sales at Venue.

3.3 Merchandise Revenue Sharing. Revenue, Fees, or Commission fo r the sale of Merchandise, if any, shall be addressed in a separate agreement between the Parties. For purposes of this Agreement, Merchandise shall include without limitation the following: apparel, such as t-shirts, sweatshirts, hats, scarves or other goods featuring the Venue Name.

3.4 Parking Revenue Sharing. ASM shall be entitled to receive an amount equal to ten percent (10%) of the gross revenue generated by ASM managed P arking for the Venue, including any revenue associated with valet service provid ed by or managed by ASM. Parking rates, including the cost of valet service, shall be established by ASM, subject to approval by City, which approval shall not be unreasonably withheld.

3.5 Sponsorship Revenue Sharing. ASM shall have the right to develop, neg otiate and sell sponsorships at the Venue, subject to limitations described in Exhibit A attached hereto.

The sponsorship revenue, if any, shall be shared with City at a rate of twenty five percent (25%) to ASM and seventy-five percent (75%) to City for the term of this Agreement, as extended.

3.6 Facility Rental Fees for Private Parties . ASM shall be entitled to receive fifty percent (50%) of revenue received for facility rental of Venue for private events. Facility rental rates shall be established by ASM, subject to approval by City, which approval shall not be unreasonably withheld.

3.7 Pricing. ASM shall have the right to set all ticket pricing for all ASM coordinated events and shall not require City approval for said prices, subject to any limit ations identified in Section 2.4 above and Exhibit A attached hereto. Subject to the review and approval of City, ASM shall establish prices, fees and other charges applicable to the use and operation of the Venue, including service fees and other charges and costs of goods and services offered in the Venue.

3.8 Collections and Payments.

3.8.1 Collection of Revenue . ASM shall be responsible for the collection of all the revenue due from the operation of the Venue.

3.8.2 Payment of Operating Expenses . From the Effective Date, ASM sh all be responsible for processing payments of all Operating Expenses on a current basis, regardless of whether sufficient revenues from the operation of the Venue exist to pay such Operating 125
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8 Expenses. In the event there are insufficient revenues from the o peration of the Venue in a calendar month of an Operating Year to pay for any Operating Expense(s) , ASM shall process the payment of any such Operating Expense(s) when due using funds from the Venue Operations Account (as further described in Section 3.9 b elow). ASM shall maintain sufficient documentation detailing the amount of the deficiency needed to pay the Operating Expense(s) and accounting of the Operating Expenses.

3.8.3 Payment of Management Fees . Management Fees shall be due and payable on a monthly bas is to ASM. The City shall remit payment of the Management Fees to ASM by or on the last day of each month.

3.8.4 Rights Regarding Revenue Due to the Parties . Except as otherwise provided herein this Agreement, the City is entitled to all the revenues received for the operation of the Venue. ASM shall be e ntitled to keep and retain the r evenue sharing percentage amounts from food and beverage sales, parking fees, facility rental fees, and sponsorship revenue (“ASM Revenue Sharing Percentage”) as described in Sections 3.2, 3.4, 3.5 and 3.6. ASM shall remit to the City the Revenue Sharing percentage amounts due the City as described in this Agreement (“City Revenue Sharing Percentage”).

Subject to the audit terms described in Section 5.1 and on the basis of a prel iminary determination by ASM of Net Operating Income, not later than forth -five (45) days after the end of each Operating Year, the following shall occur in the order described: ( 1) If not already retained for and during the Operating Year that just ended, ASM is entitled to pay itself any amounts not yet retained up to the sum total of its ASM Revenue Sharing Percentage for each Operating Year; (2) ASM shall pay to the City the aggregate amount of any Operating Expenses shortfalls or deficiencies that were funded by the City in previous years; and ( 3) any remaining Net Operating Profit shall be paid eighty percent (80%) to City and twenty percent (20%) to ASM. If the preliminary determination of Net Operating Income on which the above described payments w ere made differs from the determination of Net Operating Income pursuant to the annual financial report described in Section 5.1.2, City pay to ASM or ASM shall pay to City such portion of the payments received by them so as to reflect the payments each sh ould have received on the basis of the determination of Net Operating Income shown in the annual financial report.

3.9 Establishment of Venue Operations Account . An account to be known as the “Venue Operations Account” shall be established by the City with an initial deposit amount of One Hundred Fifty Thousand Dollars ($150,000.00) for use in accordance with the terms of this Agreement, subject to such amount being appropriated by the City. The purpose of the amounts deposited by the City into the Venue Operations Account is to fund Operating Expenses only in the event that the Operating Expenses exceed the r evenue collected by ASM in any given Operating Year ; otherwise ASM shall use the r evenue collected to pay for the Operating Expenses. At the end of each O perating Year (on a prorated basis for any partial Operating Year), City shall deposit funds in an amount sufficient to maintain a balance of O ne Hundred Fifty Thousand Dollars ($15 0,000.00) in the Venue Operations Account, subject to the limitations in Section 10.4 of this Agreement. The funds held in the Venue Operations Account shall be made available to fund Operating Exp enses of the Venue when there are insufficient Revenues received from the operation of the Venue by ASM. 126
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9 3.10 Establishment of Capital Re serve Account . An account to be known as the “Capital Reserve Account ” shall be established by the City with an initial reserve amount of One Hundred Thousand Dollars ($100,000.00) for use in accordance with the terms of this Agreement, subject to such amount being appropriated by the City. At the end of each Operating Year (on a prorated basis for any partial Operating Year), City shall deposit funds in the amount of One Hundred Thousand Dollars ($100,000.00) in the Capital Reserve Account, subject to th e limitations in Section 10.4 of this Agreement. The funds held in the Capital Reserve Account shall be made available to fund such capital repairs to the Venue as may be deemed necessary by the City.

3.11 Definitions. Set for th below are definitions for Gros s Operating Revenue, Operating Expense, Net Operating Profit and Net Operating Loss. Except to the extent contrary to the express terms of such definitions, Gross Operating Revenue, Operating Expense, Net Operating Profit and Net Operating Loss shall be de termined in accordance with Generally Accepted Accounting Principles promulgated by the Financial Accounting Standards Board (“GAAP”).

3.11.1 The term "Gross Operating Revenue" means the total revenue earned and received from the operation of the Venue or any por tion thereof including, but not limited to revenue received in connection with Venue , sponsorships, sales of general admission tickets and premium seat tickets, facility rental of the Venue, the sale of food and beverages , and parking fees. Notwithstanding the foregoing, the term "Gross Operating Revenues" shall not include (1) where such revenue has been expressly excluded from Gross Operating Revenues; ( 2) any revenue or commissions associated with naming rights under the Naming Rights Agreement; ( 3) any amounts paid to or retained by any Licensees or promoters of any Events, regardless of whether any such entities may be affiliated with ASM , or (4) any commissions payable to either party hereto pursuant to Section 3.3 and 3.5 above.

3.11.2 The term "Operating Expenses" means all expenses paid or incurred by ASM on behalf of the City in direct connection with the operation of the Venue.

Notwithstanding the foregoing, " Operating Expenses " shall not include (1 ) property taxes or similar charges that may be levied on the Venue and/or the Land (except as set forth in paragraph below); (2) the cost of any capital expenditures (determined in accordance with GAAP) in excess of Five Thousand Dollars ($5 ,000.00) per item unless City and ASM otherwise agree in writing (it being the intent of the parties that individual capital expenditures below that amount be accounted for and trea ted as an Operating Expense); (3 ) any reserve for the replacement of FF&E; (4 ) any reserve for any future ca pital expenditures; (5 ) principal, interest or any other amounts payable by City in connection with any financing secured by or in connection with the Venue; and (6) all insurance premiums and other charges incurred by City in connection with the insurance required to be maintained by City hereunder.

The parties do not believe that this Agreement creates a possessory interest on the part of ASM; however, in the event that the applicable taxing authorities determine that ASM's rights hereunder give rise to a taxable possessory interest, such tax shall be treated as an Operating Expense.
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10 3.11.3 The term " Net Operating Profit " means, with respect to the applicable period, the amount by which Gross Operating Revenue exceeds Operating Expenses.

3.11.4 The term " Net Operating Loss " means, with respect to the ap plicable period, the amount by which Operating Expenses exceed Gross Operating Revenue, and such amount shall be expressed mathematically as a negative number.

4. Operations, Utilities, Permits and Taxes.

4.1 Utilities. ASM shall set up accounts for each of the utilities to operate the Venue and shall be liable for direct payment for all utility charges to the respective billing agency or entity.

4.2 Taxes.

4.2.1 The City is solely liable for the direct payment of property taxes and special assessment taxes for the Venue, only in the event that such taxes and special assessments are assessed against the City as a municipal law corporation.

4.2.2 ASM shall be solely responsible for the collection and pay ment of applicable sales taxes on sales of non-exempt items.

4.2.3 ASM shall be solely responsible for the payment of all employment taxes directly arising out of its operation of the Venue.

4.3 Employee Training . ASM shall retain only qualified individuals for the performance of the job for which they were hired. ASM shall provide its employees an orientation regarding operation of the Venue, including a review of all applicable regulations, policies, procedures and safety measures. The City may, in its discretion, provide an orientation on its policies and procedures for ASM’s employees, or may provide to ASM information reasonably sufficient to enable ASM to conduct an orientation on the City’s policies and procedures.

4.4 Photography. Venue includes a state-of-the-art video recording system designed to record all live performances at the Venue . Advertising for Venue , including prominent displays on site, shall include legal notice to all entrants that they may appear on recordings and any images from such recordings may be used in connection with marketing the Venue or by the performer for performer’s purposes, which may include sale or other income related distribution of video without additional or specific consent from or compensation due to the individual. With the City’s prior consent, which shall not be unreasonably withheld, ASM shall have the right to grant authorization to persons or corporations associated with ASM to engage in the production of additional still and motion pictures and related activities for, or during, the use of the Venue.

4.5 Security Camera Access . ASM shall be provided non -exclusive direct and live streaming access to Venue security cameras to provide ample monitoring of the Venue and surrounding area.

4.6 Inventory. ASM shall maintain an inventory of all perishable and non -perishable 128
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11 goods, service ware, alcohol and non-appurtenant fixtures related to ASM services for the Venue and shall be responsible for their safe keeping or replacement if lost , damaged, or stolen . ASM shall ensure appropriate levels of glassware, dinnerware, flatware, food, and beverage are on premise and available for preparation and sale prior to each event at Venue.

4.7 Required Permits and Inspection Ratings; Business License . ASM shall at all times maintain the proper City and County Health Department permits and inspection ratings required for its food and beverage sales, including alcoholic beverages sales. ASM shall procure a Business License from the City prior to beginning operations at the Venue and shall maintain a valid license at all times throughout the duration of this Agreement.

5. Reporting, Records and Budget.

5.1 Reporting. ASM shall provide to City the following reports:

5.1.1 Monthly Written Summaries . ASM shall provide City a monthly written summary of the ASM's activities, which shall include monthly financial reports, a calend ar of event bookings updated monthly, and such other information as may be reasonably requested by City from time to time ("Monthly Summary"). The Monthly Summary shall be in a form agreed upon by ASM and City and shall be received by City no later than th irty days following the end of each month.

5.1.2 Annual Financial Report: Statistics . Within ninety (90) days after the end of each Operating Year, ASM shall endeavor in good faith to furnish to City: (1) an annual report of income and cash flow from the Venue prepared in accordance with GAAP, and (2) reasonably detailed supporting schedules that provide information on actual results compared to budget projections.

5.1.3 Quarterly Financial Reports; Statistics . Within forty -five (45) days after each calenda r quarter ending March 31, June 30th, September 30th and December 31st, ( 1) income and cash flow reports, and (2 ) reasonably detailed supporting schedules that provide information on actual results compared to budget projections.

5.1.4 Reports Through End of Term . As promptly as possible after the expiration or termination of this Agreement, ASM shall prepare and deliver to City the annual reports described in Section 5.1.2 if the Term ends at the end of an Operating Year or the reports described in Section 5.1.3 if the Term ends other than at the end of an Operating. Year. In the latter case, such report shall relate to the period from the commencement of the calendar quarter for which no reporting has occurred up to the date of termination.

5.2 Records. Upon written request, with no fewer than twenty-eight (28) days’ notice and no more than once per year, unless otherwise required by law or mandate of a state or federal agency, ASM shall make available for inspection or provide copies of its books and records to the City for Venue Operations for and to have an independent certified public accountant acceptable to ASM audit such books, receipts and records . These reporting requirements shall include and be limited to the information called for in Subparagraphs 5.1.1 through 5.1.4., below.

5.2.1 ASM shall maintain complete and accurate records with respect to all 129
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12 costs and expenses incurred under this Agreement. Full, true and accurate records of Gross Operating Revenue, Operating Expenses and Net Operating Income in an Operating Year shall be kept by ASM at either the Venue or ASM’s business office in Southern California. All such records shall be clearly identifiable.

5.2.2 ASM shall keep detailed injury reports, maintenance reports, liability waivers and incident report s, both electronically and in hard copy. ASM shall complete and submit annual reporting and documentation to outside agencies, as required.

5.2.3 ASM shall provide quarterly and annual attendance and sales reports to the City as soon as is practicable after the closing of ASM’s books for such quarter or year.

5.2.4 ASM shall keep all records described in this Section 5 for a period of no less than three (3) years from the date such record(s) was/were created.

5.3 Annual Budget. By April 1st of each calendar year, ASM shall provide City with a copy a copy of ASM’s projection of revenue and estimated budget of expenses relating to the operation of the Venue prepared by ASM. The projected budget shall include a detailed scope of services to be provided by or on behalf of ASM and shall include ASM’s objectives for the Operating Year.

6. Maintenance; Repairs and Appearance.

6.1 Venue Maintenance

6.1.1 ASM shall be responsible for management of all interior janitorial services and minor maintenance of the Venue to keep the Venue in a neat, clean, first -class condition, including removal of debris and garbage from the Venue and loading docks; cleaning of the interior and exterior portions of the Venue, including, but not limited to, all seating areas, stairwells, roofs, storage areas, offices, equipment, windows, window frames and doors of the Venue; making necessary minor repairs to the Venue; and ensuring the exterior of the building and surrounding property are free of clutter, debris, and graffiti. ASM shall not be required to, and shall not, make any repair requiring a " Capital Repair" without the express advance written consent of the City, where a Capital Repair is defined as an item of repair having (1) a one-time cost of $5,000 or more or (2) a life expectancy of five (5) years or more, to keep the Venue in such condition as to comply with all applicable legal requirements. In event that ASM may make a Capital Repair, ASM may seek reimbursement from the City (to be paid from the Capital Reserve Account) by submission of a detailed invoice and sufficient documentation to the City; provided sufficient funds are in the Capital Reserve Account and City has provided its advance written consent to such Capital Repair.

6.1.2 ASM shall conduct daily inspections to ensure adequate upkeep of Venue.

ASM shall immediately report any material maintenance or aesthetic issues to the City for further action.

6.1.3 ASM shall immediately notify the City of any need for any Capital Repairs to the Venue. Upon notification from ASM of a required repair, City shall, as soon as is practicable, facilitate required repairs in order to avoid an interruption of programing at Venue.

In the absence of a qualified representative of City, ASM may directly facilitate emergency 130
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13 repairs in order to maintain programming.

6.2 Venue Appearance.

6.2.1 ASM shall be responsible for maintaining the image and aesthetic of the Venue in accordance with City goals and industry standards and practices.

6.2.2 ASM shall immediately notify the City of any need for any major maintenance required at the Ve nue, including but not limited to; graffiti abatement, lighting, significant trash and debris.

6.3 Quarterly Meetings . ASM’s Venue manager shall meet quarterly, and more frequently, if necessary, with the City’s personnel to review the condition of the Venue.

7. Additions and Alterations . ASM may not make any improvements, alterations, renovations, additions, modifications or changes to the Venue or any appurtenant features of Venue (collectively, the " Alterations") without first submitting the terms and conditi ons upon which ASM proposes to make such Alterations and obtaining the prior express written consent of City to such Alterations, which may be withheld in the sole discretion of City and subject to any terms and conditions that the City may impose . Arrangements for payment of any Alterations shall be made by separate agreement of the Parties prior to commencement of any such Alterations. All Alterations shall be and become the property of City and shall not be an Operating Expense. City may make Alterations to the Venue, provided the same do not adversely impact or unreasonably interfere with ASM's operation of the Venue, and are commenced only after providing ASM with prior notice and an opportunity to coordinate the scheduling of such Alterations with the use of the Venue.

7.1 In the event that ASM performs Alterations approved by the City, such Alternations shall conform with any and all applicable legal requirements and pursuant to, if required, a valid permit, issued by the applicable local authority, and in conformance with any reasonable construction rules and regulations City may impose. All work with respect to any Alterations must be done in a good and workmanlike manner and diligently prosecuted to completion to the end that the Venue shall at all times be a complete unit except during the period of work. Upon completion of any material Alterations, a Notice of Completion shall be recorded in the office of the Recorder of the County of San Bernardino and the party performing the Alterations shall deliver to ASM and City a reproducible copy of the "as built" drawings of the Alterations.

7.2 In addition to the insurance requirements of this Agreement, prior to the commencement of Alterations by ASM, ASM shall provide City with evidence that ASM or ASM's contractor carries "Builder's All Risk" insurance in an amount equal to the cost of construction of such Alterations, and such other insurance as City may reasonably require. The cost of such insurance carried by ASM pursuant to this Section 7.2 shall be paid by ASM.

7.3 ASM has no authority or power to cause or permit any lien or encumbrance of any kind whatsoever, whether created by act of ASM, operation of law or otherwise, to attach to or be placed upon the Venue. ASM covenants and agrees not to suffer or permit any lien of mechanics or materialmen or others to be placed against the Venue, or any portion thereof, with respect to work or services claimed to have been performed for or materials claimed to have been 131
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14 furnished to ASM or the Venue, and, in case of any such lien attaching or notice of any lien, ASM covenants and agrees to cause it to be released and removed of record within thirty (30) days.

8. Assignment. ASM acknowledges that the terms set forth in this Agreement were negotiated by City a nd ASM in consideration of, and would not have been granted by City, but for the high quality, first class reputation of ASM and the professional judgment, skill and taste of ASM as an operator of live performance events as demonstrated by its operation of other venues prior to the date of this Agreement. This Agreement is in the nature of a personal services contract and not subject to assumption or assignment pursuant to 11 U.S.C. Section 365 (Bankruptcy Code). Except for assignment(s) to wholly owned or controlled affiliates or subsidiaries of ASM (“Affiliates”), ASM shall not assign or delegate or any of its obligations or interest under this Agreement without the City’s prior written consent , in its sole and absolute discretion. In the event of any assignments made in whole or in part to one of ASM’s Affiliates, ASM shall provide notice to City prior to such assignment.

9. Advertising. ASM may install at the Venue, subject to any applicable sign ordinance and any restrictions included in Exhibit A, signs identifying its business and sponsors. Prior to installation, a ll outdoor signs, the number, general type, size and locations of signs must be approved in writing by the City , which approval may not be unreasonably withheld. ASM may advertise ASM event s at other ASM managed facilities at the Venue subject to mutually agreeable terms and conditions which shall be included within the Venue Operating Plan.

10. Default; Termination of Agreement.

10.1 Default by ASM, Termination by the City.

10.1.1 City’s Right to Terminate Agreement within Thirty (30) Days . The City may terminate this Agreement by giving ASM thirty (30) days written notice after the occurrence of any of the following events:

10.1.1.1 The failure of ASM to materially perform any of its obligations under thi s Agreement, if ASM fails to cure its default within said thirty (30) day notice period; or if a cure is not reasonably possibly within thirty (30) days and ASM fails to initiate remedial action in a diligent manner and to proceed with the same until said default is cured.

10.1.1.2 The filing of any lien against the Venue because of any act or omission of ASM which is not discharged within thirty (30) days of receipt of actual notice by ASM, unless ASM initiates necessary action to remove such lien within t hirty (30) days and diligently proceeds with such action until the lien is removed.

10.1.1.3 The City may terminate this Agreement by giving ASM ninety (90) days written notice from the date of any official act of the City Council of City which fails to allocate sufficient funds to pay ASM’s annual Management Fee.

10.1.2 City’s Right to Terminate Agreement Immediately . The City may terminate this Agreement immediately upon written notice to ASM upon the happening of any of the following events:
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15 10.1.2.1 ASM abandons its operation of the Venue. For purposes of this Agreement, ASM shall be conclusively deemed to have abandoned its operations at any time the ASM fails to offer or provide the services required by this Agreement for a period of ten (10) consecutive days without the written consent of the City, unless such failure is because of circumstances that fall under any of the events defined as Force Majeure.

10.1.2.2 ASM fails to maintain any insurance required by this Agreement. Should ASM fail to maintain adequate insurance; the City shall have the option of securing the required insurance at ASM’s expense in lieu of immediately terminating this Agreement.

10.1.2.3 ASM files in any court, pursuant to any statute either of the United States or of any State, a petition in bankruptcy or insolvency or for reorganization or appointment of a receiver or trustee of all or a part of the property of ASM, or if ASM makes an assignment for the benefit of creditors.

10.1.3 City’s Right to Pro-Rata Refund of Management Fee. If this Agreement is terminated by the City, the City shall have the right to demand and ASM shall be obligated to refund to the City a pro -rata share of the Management Fee, or portion thereof, paid by the City and unearned prior to the date of termination.

10.2 Default by City; Termination by ASM.

10.2.1 ASM’s Right to Terminate . ASM may terminate this Agreement at any time that it is not in default in its obligations by giving the City thirty (30) days written notice after the occurrence of any of the following events:

10.2.1.1 The failure of the City to materially perform any of its obligations under this Agreement, unless the City cures its default within thirty (30) day s of ASM’s notice; or, if a cure is not reasonably possible within thirty (30) days and such default has not been caused by the City’s gross negligence or intentional misconduct, the failure of the City to initiate necessary action to cure the default and to diligently proceed with such action until the default is cured.

10.2.1.2 Issuance by a court of competent jurisdiction of an injunction in any way preventing or restraining ASM’s use of any substantial portion of the Venue and the remaining in force of such injunction for a period of thirty (30) consecutive days.

10.2.1.3 The inability of ASM to use any substantial portion of the Venue for a period of thirty (30) consecutive days due to circumstances that fall under any of the events defined as Force Majeure

10.2.1.4 The material breach of any of the City’s representations and warranties set forth in this Agreement.

10.2.2 Right to Pro -Rata Refund of Management Fee . If this A greement is terminated by ASM, the City shall have the right to demand and ASM shall be obligated to refund to the City a pro -rata share of the Manageme nt Fee, or portion thereof, paid by the City 133
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16 and unearned prior to the date of termination. In the event ASM terminates the Agreement for cause, ASM shall keep one month’s proportionate share of the M anagement Fee as liquidated damages.

10.3 Termination by Mutual Agreement - Both Parties. The Parties may terminate this Agreement for any reason by written agreement.

10.4 Termination Due to Non-appropriations. Notwithstanding any other provision of this Agreement, if this Agreement extends into more than on e fiscal year of the City, and if appropriations are insufficient to support this Agreement, or if funds are not appropriated, then the City may terminate this Agreement at the end of the fiscal year or otherwise upon the expiration of existing appropriation authority. Expenditures not appropriated by the City Council in its current fiscal year budget are deemed to be contingent liabilities only and are subject to appropriation in subsequent fiscal year budgets.

11. Indemnification.

11.1 ASM Indemnification Obliga tion. ASM shall indemnify , defend and hold harmless the City and any of its officials (elected or appointed), officers, employees, agents or representatives (hereafter referred to collectively as the “City” in this Section) from and against all losses, da mages or claims of whatever nature, including attorney’s fees and court costs, arising from any act or omission on the part of ASM, its officers, directors, employees, Affiliates, contractors, subcontractors or agents in the use or operation of the Propert y, or from any failure to fully, faithfully and timely comply with all of ASM’s obligations under this Agreement. This Section applies, without limitation, to claims of personal injury, property damage including without limitation loss of use, or other c laims, liability, harm or damages, which may arise out of any use of the Property. This indemnity does not apply to claims arising from the sole gross negligence or willful misconduct of the City. The City shall give ASM prompt notice of any claim made or suit instituted which may subject ASM to liability under this Section 11.1, and ASM shall have the right to compromise and defend the same to the extent of its own interests; provided however that no such compromise in no manner whatsoever limits or changes ASM’s indemnification to City as set forth herein . ASM’s obligations hereunder shall survive any termination of the Agreement or ASM’s activities on the Property.

11.2 City Indemnification Obligation . City shall indemnify, defend and hold ASM, and its par ents, subsidiaries, members, managers, agents, employees and representatives harmless from and against any and all Claims incurred in connection with or arising from (1) any negligence or willful misconduct of City or its employees , (2 ) any default by City in the observance or performance of any of the terms, covenants or conditions of this Agreement on City's part to be observed or performed, (3 ) the presence or release of any Hazardous Materials in, under or around the Property or Venue or (4) any violation of the Americans With Disabilities Act, as relates to accessibility only, or any state or local law of similar import.

The provisions of this Section 11 shall survive the expiration or sooner termination of this Agreement with respect to any claims or liability occurring prior to such expiration or termination until such time the statute of limitations has run for any such claims. 134
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17 12. Insurance.

12.1 Time for Compliance . ASM shall not commence performance under this Agreement until it has provided evidence s atisfactory to the City that it has secured all insurance required under this Section 12. As respects to this insurance section, the City herein refers to its directors, officials, officers, employees, agents, representatives and volunteers as Additional Insureds.

12.2 Minimum Requirements. ASM shall, at its expense, procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the Agr eement by the ASM, its agents, representatives, employees or subcontractors:

12.3 Minimum Scope of Insurance . Coverage shall be at least as broad as the latest version of the following: (1) General Liability: Insurance Services Office Commercial General Liability coverage (occurrence form CG 0001); (2) Automobile Liability : Insurance Services Office Business Auto Coverage form number CA 0001, code 1 (any auto); and (3) Workers’ Compensation and Employer’s Liability : Workers’ Compensation insurance as required b y the State of California and Employer’s Liability Insurance.

12.4 Minimum Limits of Insurance . ASM shall maintain limits no less than: (1) General Liability: One Million Dollars ($1,000,000) per occurrence for bodily injury, personal injury and property damag e. If Commercial General Liability Insurance or other form with general aggregate limit is used, either the general aggregate limit shall apply separately to this Agreement/location or the general aggregate limit shall be twice the required occurrence lim it; (2) Automobile Liability: One Million Dollars ($1,000,000) per accident for bodily injury and property damage; and (3) Workers’ Compensation and Employer’s Liability: Workers’ Compensation limits as required by the Labor Code of the State of California . Employer’s Liability limits of One Million Dollars ($1,000,000) per accident for bodily injury or disease.

12.5 Insurance Endorsements . The insurance policies shall contain the following provisions, or ASM shall provide endorsements on forms supplied or app roved by the City to add the following provisions to the insurance policies:

12.6 General Liability. The general liability policy shall be endorsed to state that: (1) the City, its directors, officials, officers, employees, agents , representatives and volunteers shall be covered as additional insureds with respect to the services or operations performed by or on behalf of the ASM, including materials, parts or equipment furnished in connection with such work; and (2) the insurance coverage shall be primary ins urance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the ASM’s scheduled underlying coverage. Any insurance deductibles, self -insurance prog rams or self -insurance retentions maintained by the City, its directors, officials, officers, employees, agents and volunteers shall not be construed as contributory in any way.

12.7 Automobile Liability. The automobile liability policy shall be endorsed to st ate that: (1) the City, its directors, officials, officers, employees, agents , representatives and 135
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18 volunteers shall be covered as additional insureds with respect to the ownership, operation, maintenance, use, loading or unloading of any auto owned, leased, hired or borrowed by ASM or for which the ASM is responsible; and (2) the insurance coverage shall be primary insurance as respects the City, its directors, officials, officers, employees, agents and volunteers, or if excess, shall stand in an unbroken chain of coverage excess of the ASM’s scheduled underlying coverage. Any insurance deductibles, self-insurance programs or self -insurance retentions maintained by the City, its directors, officials, officers, employees, agents and volunteers shall not be construed as contributory in any way.

12.8 Workers’ Compensation and Employers Liability Coverage . The insurer shall agree to waive all rights of subrogation against the City, its directors, officials, officers, employees, agents and volunteers for losses paid under the terms of the insurance policy which arise from work performed by the ASM.

12.9 Property Insurance. The City shall acquire and maintain property insurance for fire, extended coverage and vandalism and malicious mischief for the Venue, including furniture, fixtures, improvements and contents in an amount not less than the full replacement value thereof.

12.10 All Coverages . Each insurance policy required by this Agreement shall be endorsed to state that: (A) coverage shall not be suspended, voided, reduced or canceled except after thirty (30) days prior written notice by certified mail, return receipt requested, has been given to the City; and (B) any failure to comply with reporting or other provisions of the policies, including breaches of warranties, sha ll not affect coverage provided to the City, its directors, officials, officers, employees, agents and volunteers.

12.11 Separation of Insureds; No Special Limitations . All insurance required by this section shall contain standard separation of insureds provisi ons. In addition, such insurance shall not contain any special limitations on the scope of protection afforded to the City, its directors, officials, officers, employees, agents, representatives and volunteers.

12.12 Deductibles and Self -Insurance Retentions . A ny deductibles or self -insured retentions must be declared to and approved by the City. ASM shall guarantee that, at the option of the City, either: (1) the insurer shall reduce or eliminate such deductibles or self -insured retentions as respects the City, its directors, officials, officers, employees, agents and volunteers; or (2) the ASM shall procure a bond guaranteeing payment of losses and related investigation costs, claims and administrative and defense expenses.

12.13 Acceptability of Insurers . Insuranc e is to be placed with insurers with a current A.M. Best’s rating no less than A:VIII, licensed to do business in California, and satisfactory to the City.

12.14 Verification of Coverage . ASM shall furnish City with original certificates of insurance and endorsements effecting coverage required by this Agreement on forms satisfactory to the City. The certificates and endorsements for each insurance policy shall be signed by a person authorized by that insurer to bind coverage on its behalf, and shall be on forms provided by the City if requested. All certificates and endorsements must be received and approved by the 136
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19 City before work commences. The City reserves the right to require complete, certified copies of all required insurance policies, at any time.

12.15 ASM shall pass down the insurance obligations contained herein to all tiers of contractors and subcontractors working under this Agreement.

12.16 The City as owner of the Venue property will maintain its own property and liability insurance; but such insu rance shall not be primary or contributory for any claims that may be asserted or based on the use of the Venue or related to the operation and management of the Venue by ASM under this Agreement. City has currently in force and shall maintain in force during the Term of this Agreement a policy or policies of risk of direct physical loss or damage insurance covering damage from fire an d other perils (and, at City 's sole and absolute discretion, earthquake and flood), for loss or damage to the Venue. Landlord has currently in force and shall maintain in force during the Term a Commercial General Liability policy insuring against liability (including bodily injury or property damage) arising on or about the Venue in commercially reasonable amounts as determined by City in its reasonable discretion.

13. Representations and Warranties.

13.1 City Representations and Warranties . The City hereby warrants and represents that (with the understanding that ASM is relying on said warranties and representations):

13.1.1 The transactions contemplated by this Agreement and the execution and delivery of all documents required herein and their performance hereunder have been duly authorized. The execution and delivery of this Agreement and any other document required herein and the consummation of the transactions contemplated hereby and thereby will not result in any violations of or default under any term or provision of any agreement, instrument, mortgage, loan or similar documents to which the City is a party or by which it is bound.

13.1.2 There is no existing, pending or anticipated condemnation or similar proceeding against or involving the Venue.

13.1.3 The City has not entered into any leases, options, contracts or rights of first refusal, recorded or unrecorded, affecting the Venue which have not been disclosed to ASM.

13.1.4 The individuals executing this Agreement on behalf of the City are authorized and empowered to enter into this Agreement.

13.1.5 The City is not prohibited from consummating the transaction contemplated in this Agreement by any law, regul ation, charter, code, ordinance, decree, agreement, instrument, restriction, order or judgment or similar legal or quasi-legal limitation.

13.2 ASM representations and warranties.

13.2.1 ASM hereby warrants and represents that the individuals executing this Agreement on behalf of ASM are authorized and empowered to enter into this Agreement.

13.2.2 ASM is skilled and experienced in providing entertainment venue 137
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20 operations and management and has or shall acquire, and shall maintain throughout the Term of this Agreement, all permits, licenses and approvals legally required for the operation of the Venue and the performance of this Agreement.

13.2.3 ASM hereby warrants and represents that all individuals operating or employed at the Venue by or on behalf of ASM shall have all requisit e skills and training necessary to safely and satisfactorily perform the services required hereunder. Further, ASM warrants that all such individuals shall have and maintain current all licenses, permits, qualifications and approvals legally required to perform any services under this Agreement.

14. Surrender of Possession. Upon the expiration or termination of this Agreement, ASM’s right to use the Venue and exercise the privilege and rights herein granted shall cease, and ASM shall surrender the same and leave the Venue in good condition, except for normal wear and tear.

Unless otherwise provided herein, all trade fixtures, equipment and other personal property installed or placed by ASM in the Venue shall remain the property of ASM and ASM shall have the right at any time during the term of this Agreement, and for and additional period of twenty (20) days after its expiration, to remove the same from the Venue; provided that ASM is not in default of any of its obligations hereunder and that ASM repairs at its sole cost any damage caused by such removal. Any property not removed by ASM within said twenty (20) day period shall become a part of the Venue and ownership thereto shall automatically vest in the City.

15. Notice. All notices required or permitted to be given under this Agreement may be personally delivered or mailed by certified mail, return receipt requested, postage prepaid, to the following addresses:

The City: City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager

With a Copy to: Best Best & Krieger, LLP
2855 E. Guasti Road
Suite 400
Ontario, CA 91761
Attn: Ruben Duran

ASM: ASM Global, LLC
Attn: Michael K. Krouse
2000 E. Convention Center Way
Ontario, Ca 91764

With a Copy to: Lizarraga Law Firm, APC
Frank J. Lizarraga, Jr.
3401 Centrelake Drive
Suite 600
Ontario, CA 91761

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21 Any notice given by certified mail shall be deemed to be effective upon the date received, which shall be deemed the next business day following the date of mailing. Either party may designate a different address for notice purposes pursuant to this section by informing the other party in writing.

16. Force Majeure. A Force Majeure Event means if the Venue is damaged or prevented from occupancy or use from any cause whatsoever or if an y other casualty or unforeseeable cause beyond the control of the parties, including, without limitation, acts of God, fires, floods, epidemics, pandemics, quarantine restrictions imposed by government officials, terrorist acts, strikes or labor disputes, failure of public utilities, or unusually severe weather, prevents occupancy and use, or either, as granted in this Agreement, then performing party or any other affected party shall be excused from performance and shall not be considered to be in default with respect to any obligation hereunder, if and to the extent that its failure of, or delay in, performance is due to a Force Majeure Event; provided, that performing party uses reasonable commercial efforts to overcome or mitigate t he effects of such occ urrence. Notwithstanding anything to the contrary contained in this Agreement, a Force Majeure event shall excuse the performance of such party for a period equal to any such prevention, delay or stoppage and, therefore, if this Agreement specifies a time period for performance of an obligation of either party, that time period shall be extended by the period of any delay in such party's performance caused by a Force Majeure.

17. Severability. Should any provision of this Agreement be declared to be invalid by a court of competent jurisdiction, the remaining terms shall remain effective, provided that elimination of the invalid provision does not materially prejudice any party with regard to its respective rights.

18. Compliance with Laws. ASM shall at all times c omply with all federal, state and local laws, ordinances, rules and regulations which are applicable to its operation of the Venue, including all laws, rules and regulations adopted after the Effective Date of this Agreement.

19. Discrimination Prohibited. ASM shall not discriminate against any employee or applicant for employment because of race, color, religion, sex, age, disability, political affiliation or national origin. ASM shall at all times operate Venue and related facilities as public facility and shall not, on grounds of race, color, religion, sex age, disability, political affiliation or national origin, deny any services, furnish any benefit which is different from that provided to others, subject any person to segregated or separate treatment in any facility, or in any manner or process related to receipt of any service or benefit, restrict the enjoyment of any privilege enjoyed by others receiving such service or benefit.

20. Litigation. This Agreement shall be governed by the laws of the State of California.

Venue shall be in San Bernardino. In the event of any litigation or other similar proceeding between the City and ASM arising under this Agreement, the successful party shall be entitled to recover its reasonable attorney’s fees, expert witne ss fees and other costs incurred in connection with such litigation or arbitration.

21. Remedies to be Non -Exclusive. All remedies provided in this Agreement shall be deemed to be cumulative and additional, not in lieu of or exclusive of each other, or of a ny other 139
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22 remedy available to the City or ASM at law or in equity, and the exercise of any remedy, or the existence herein of other remedies, shall not prevent the exercise of any other remedy.

22. Time is of the Essence. Time is of the essence with regard to the performance of all the Parties’ obligation under this Agreement.

23. Integrated Agreement. This Agreement constitutes the entire agreement between the parties concerning the matters contained herein and supersedes all prior negotiations, understandings and agreements concerning such matters.

24. Written Waiver. No provision of this Agreement may be waived or modified except by a writing signed by the party against whom such waiver or modification is sought to be enforced.

Failure of either Party to insist on any one occasion upon strict compliance with any of the terms, covenants or conditions hereof shall not be deemed a waiver of such term, covenant or condition, nor shall any waiver or relinquishment of any rights or powers hereunder at any one time or more times be deemed a waiver or relinquishment of such other right or power at any other time or times.

25. Successors and Assigns. The terms of this Agreement shall be binding upon and inure to the benefit of the Parties’ successors and assigns.

26. Future Acts an d Cooperation. The City recognizes and acknowledges that ASM will need the assistance and cooperation of the City in order to properly perform and fulfill ASM’s covenants and obligations under this Agreement. The City agrees it shall designate a specific officer or agent having appropriate experience and authority whose responsibility it is to work with ASM in assuring that ASM obtains the full cooperation and assistance of the City, subject to the terms of this Agreement and all applicable laws.

27. Frustration of Purpose. At any time during the Agreement term, if the governing body of any political subdivision, having competent jurisdiction of the Venue, should enact any valid zoning ordinance, law or regulation which prohibits the use of the whole or a subs tantial part of the Venue for the purpose as provided in this Agreement, as reasonably determined by the City, or if a force outside ASM’s control occurs including, but not limited to, declared or undeclared war, sabotage, riot or other acts of civil disob edience, acts or omissions of government, labor disputes, shortages of fuel or other materials, accidents, fires, explosions, floods, earthquakes, or other Acts of God, which substantially prevents ASM’s use of the Venue as provided for in this Agreement, it is agreed that ASM may elect, within one hundred twenty (120) days after the effective date of such ordinance, law, regulation or occurrence of the event outside ASM’s control, to cancel this Agreement and surrender possession of the Venue. Any such cancellation and surrender will act to release and discharge ASM from any further obligation under this Agreement. In addition, it is agreed that during the period of any force outside ASM’s control, the City and ASM shall be excused from performing their re spective obligations under this Agreement whether or not ASM exercises its right to terminate as provided herein.

28. Destruction of Property.

28.1 Total Destruction . If the Venue should be totally destroyed (i.e., damage in excess of partial destruction as d efined in this Section by fire or other casualty or occurrence, 140
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23 ASM shall have the option, to be exercised in writing within sixty (60) days of such destruction, to either (1) terminate this Agreement in which event the Parties shall have no further obligations hereunder or (2 ) elect to repair and restore the Venue and thereafter diligently pursue such restoration to completion. In the event ASM elects option (2 ), ASM shall have the right to use any and all insurance proceeds arising from such a casualty or occurrence, paid to ASM, to repair and restore the Venue to its preexisting condition.

28.2 Partial Destruction . If the Venue should be partially damaged by fire or other casualty occurrence, then ASM shall restore the Venue in a good and workmanlike manner to a condition as good as, or better than, the condition that existed prior to their damage or destruction. To restore the Venue pursuant to this Section, ASM shall be entitled to receive and use any insurance proceeds received by ASM from the aforementi oned casualty or occurrence.

ASM shall remit to the City any excess proceeds. For purposes of this Agreement, the term “partially damaged” means ( 1) damage to one third or less of the value of the building and improvements at the Venue or (2) damage to th e extent that ASM is unable to make full and productive economic use of the Venue and, in ASM’s reasonable determination, the full and complete restoration of the Venue will take less than one-hundred eighty (180) days.

28.3 Application of Insurance Proceeds Up on Termination. If, after the partial or total destruction of the Venue, this Agreement is terminated pursuant to the provisions of this section, then ASM will be entitled to all insurance proceeds made available on account of such destruction in favor of ASM for reimbursement for the value of the improvements or fixtures made or installed at ASM’s cost, or ASM’s personal property held at the Venue. Once ASM has been reimbursed, any additional proceeds shall be paid to the City.

[Signatures on Following Page]
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24 SIGNATURE PAGE

TO STAGE RED OPERATING AGREEMENT

CITY OF FONTANA

By:

Matthew Ballantyne
City Manager

ASM GLOBAL, A DELAWARE

LIMITED LIABILITY COMPANY

By:
_____________

Approved as to form:

Ruben Duran
City Attorney

IN COMPLIANCE WITH CONTRACT INSURANCE REQUIREMENTS

By: ______________________________
Rakesha Voss
Director of Human Resources

IN COMPLIANCE WITH PURCHASING AND CONTRACT ADMINISTRATION

POLICIES/PROCEDURES

___________________________________
Jessica Brown, CFO

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EXHIBIT “A”
Naming Rights Agreement

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“EXHIBIT B”

Floor Plan of the Venue

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EXHIBIT “C”

Depiction of the Parking Facilities
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EXHIBIT “D”

ASM Proposal

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2806 Agenda Date: 2/13/2024
Agenda #: L. Category: Consent Calendar
FROM:

Public Works
SUBJECT:

Accept Donation to Public Works Utilities and Streets Division RECOMMENDATION:

Accept Donation of a LineLazer V 3900 Line Striper from Goldstar Asphalt Products to Public Works Utilities and Streets Division.

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

DISCUSSION:

The Public Works Department Utilities and Streets Division secured a raffle prize from Goldstar Asphalt Products during a recent gathering of the regional Maintenance Superintendent Association.

Goldstar Asphalt Products graciously conducted a raffle, offering a LineLazer V 3900 Line Striper to all participating cities and Fontana emerged as the fortunate winner. This specialized striper will play a crucial role in marking parking lots and be a valuable asset for the department's efforts in maintaining the many parking lots across the city.

FISCAL IMPACT:

The fiscal impact associated with the approval of this item is an increase in capital fixed assets of $9,250 which is the value of the donated equipment.

MOTION:

Approve staff recommendation.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2809 Agenda Date: 2/13/2024
Agenda #: M. Category: Consent Calendar
FROM:

Administrative Services
SUBJECT:

Approve the Sale of Real Property by the Successor Agency to the City of Fontana.

RECOMMENDATION:

Approve the Purchase of Real Property Identified as APN 0228-301-51 - Located at Citrus And South Highland Avenues - by The City of Fontana and Authorizing the City Manager To Negotiate and Execute a Purchase and Sale Agreement with the Successor Agency to the Fontana Redevelopment Agency
COUNCIL GOALS:
· To operate in a businesslike manner
· To promote economic development by pursuing business development, retention, expansion and attraction
DISCUSSION:

In 2008, prior to the dissolution of redevelopment agencies, the former Fontana Redevelopment Agency purchased from the State of California, Department of Transportation, certain real property then identified as parcel DD 015496-01-01 comprised of eight parcels, (also known as Lots 21-31 of Tract No. 3348, Highland Haven M.B. 47/14-16), now identified with APN 0228-301-51 (the “Property”),with a common location west of Citrus Avenue and north of South Highland Avenue. The Director’sDeed for the Property was recorded with the San Bernardino County Recorder’sOffice in the Official Records of the County of San Bernardino. It was recently discovered that it was recorded mistakenly in the name of the City of Fontana and not the Fontana Redevelopment Agency.

In 2018 and 2019, the City, under the belief that it owned the Property, conducted a formal Request for Qualifications and Request for Proposal process to facilitate development of the parcels, which included the Property. Following this process in the same year, the City entered into an Exclusive Negotiating Agreement (“ENA”)with the selected party, the Ladhar Group. Per the terms of the ENA, the parties would negotiate and execute an agreement for the purchase, acquisition and development of the City owned properties. On January 26, 2021, the City approved the Purchase, Sale and Development Agreement (“PSDA”)between the City and Citrus Development LLC (formerly the Ladhar Group) for the commercial and retail development of the City owned properties located on the North West Corner of Citrus Avenue and South Highland Avenue. Recently, the mistake in how the title owner for this Property was recorded by the San Bernardino County Recorder’sOffice was discovered.

Notwithstanding the mistake that occurred in 2008 when the Director’s Deed was recorded, the former Fontana Redevelopment Agency is the property owner and thus technically it is now owned by City of Fontana Printed on 2/6/2024Page 1 of 2
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File #: 21-2809 Agenda Date: 2/13/2024
Agenda #: M. Category: Consent Calendar
former Fontana Redevelopment Agency is the property owner and thus technically it is now owned by the Successor Agency by operation of law when the redevelopment agencies were dissolved in 2012.

The City has submitted an offer to purchase the Property identified with APN 0228-301-51 for $150,000 from the Successor Agency. This Property is part of a larger (commercial zoned) development area located near the corner of South Highland and Citrus Avenue. The City is acquiring this Property to ensure its inclusion as part of the larger commercial development.

Following consideration by the Successor Agency and the Countywide Oversight Board, the recommended property sale “offer”will be submitted to the State Department of Finance for its review and consideration. The Department of Finance may elect to approve or deny the submitted offer.

Based upon the time-frames established for DOF’sreview and consideration of the recommended offer, it is anticipated that the escrow would close on this Property in late Spring of 2024.

Adoption of this item and the approval of the attached Purchase and Sale Agreement with the Successor Agency will facilitate the sale and disposition of the Property.

FISCAL IMPACT:

The fiscal impact associated with the approval of this item is an increase in expenditures and decrease in unappropriated fund balance of $150,000 in Fund 101 and is not included in the 2023-24 current budget. Necessary budget adjustments will be included in the Midyear Budget Report.

MOTION:

Approve staff recommendation
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PURCHASE AND SALE AGREEMENT
(APN 0228-301-51)

This PURCHASE AND SALE AGREEMENT (“Agreement”) is dated as of the date of , 2024 (“Effective Date”), and is entered into by and between the SUCCESSOR AGENCY TO THE FONTANA REDEVELO PMENT AGENCY, a public agency created under California Health and Safety Codes (“Seller”), and CITY OF FONTANA, a municipal corporation (“Buyer”). Seller and Buyer enter into this Agreement with reference to the following recitals of fact (each, a “Recital”):

RECITALS
A. Seller owns certain real property located in the City of Fontana, California, as further described in Exhibit “A” attached to this Agreement (“ Premises”), which is adjacent to the Property;
B. The Premises was inadvertently not listed on Seller’ s originally prepared Long Range Property Management Plan (“LRPMP”), which would have provided that the Premises is to be sold, and the Successor Agency to the Fontana Redevelopment Agency , as the Seller, is now seeking approval by the Countywide Oversight Board and the Department of Finance; C. Buyer has made an offer to purchase the Premises from Seller for fair market value, and Seller desires to sell the Premises to Buyer pursuant to the terms and conditions of this Agreement.

NOW, THEREFORE , IN CONSIDERA TION OF THE PROMISES AND

COVENANTS OF SELLER AND BUYER SET FORTH IN THIS AGREEMENT AND

OTHER GOOD AND VALUABLE CONSIDERATION, SELLER AND BUYER AGREE, AS FOLLOWS:

TERMS AND CONDITIONS

1. DEFINITIONS

1.1 Definitions. The following words, terms and phrases are used in this Agreement with the following meanings, unless the particular context or usage of a word, term or phrase requires another interpretation:

1.1.1 Agreement. This Real Property Purchase and Sale Agreement and Joint Escrow Instructions by and between Seller and Buyer, including all of the attached exhibits.

1.1.2 Business Day . Monday through Friday, exclusive of Federal, State or City holidays.

1.1.3 Buyer. Defined in the initial paragraph of this Agreement.

1.1.4 Buyer Title Policy. A standard CLTA owners ’ policy of title insurance 153
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issued by the Title Company, with coverage in the amount of the Purchase Price, showing title to the Premises vested in Buyer, subject only to Permitted Exceptions.

1.1.5 City. The City of Fontana, a California municipal corporation.

1.1.6 Claim. Any clai m, loss, cost, damage, expense, liability, lien, action, cause of action (whether in tort, contract, under statute, at law, in equity or otherwise), charge, award, assessment, fine or penalty of any kind (including consultant and expert fees and expenses a nd investigation costs of whatever kind or nature and, if an Indemnitor improperly fails to provide a defense for an Indemnitee, then Legal Costs of the Indemnitee) and any judgment.

1.1.7 Close of Escrow . The first date on which the Escrow Agent files the Deed with the County for recording in the official records of the County.

1.1.8 County. The County of San Bernardino, California.

1.1.9 Default. An Escrow Default, a Monetary Default or a Non -Monetary Default.

1.1.10 Effective Date. Defined in the initial paragraph of this Agreement.

1.1.11 Escrow. An escrow, as defined in Civil Code Section 1057 and Financial Code Section 17003(a), that is conducted by the Escrow Agent with respect to the sale of the Premises from Seller to Buyer pursuant to this Agreement.

1.1.12 Escrow Agent . [INSERT E SCROW AGENT] , or such other Person mutually agreed upon in writing by both Seller and Buyer.

1.1.13 Escrow Closing Date . The earlier of: (a) on or before the thirtieth (30th) day after the Escrow Agent ’s receipt of written confirmation from both Seller and Buyer of the satisfaction or waiver of all other conditions precedent to the Close of Escrow; (b) _________________; or (c) another date mutually agreed upon in writing between the Parties for the Close of Escrow, in the Parties’ respective sole and absolute discretion.

1.1.14 Escrow Closing Statement. A statement prepared by the Escrow Agent indicating, among other things, the Escrow Agent ’s estimate of all funds to be deposited or received by Seller or Buyer, respectively, and all charges to be paid by Seller or Buy er, respectively, through the Escrow.

1.1.15 Escrow Default . The unexcused failure of a Party to submit any document or funds to the Escrow Agent as reasonably necessary to close the Escrow, pursuant to the terms and conditions of this Agreement.

1.1.16 Escrow Opening Date. The first date on which a copy of this Agreement signed by both Seller and Buyer is deposited with the Escrow Agent, as provided in Section 2.1.
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1.1.17 Event of Default. The occurrence of any one or more of the following:
(a) Monetary Default . A Monetary Default that continues for seven (7) calendar days after Notice to the Party in Default, specifying in reasonable detail the amount of money not paid or the bond or surety not provided;
(b) Escrow Default. An Escrow Default that cont inues for seven (7) calendar days after Notice to the Party in Default, specifying in reasonable detail the document or funds not submitted to the Escrow Agent;
(c) Non-Monetary Default . Any Non -Monetary Default that is not cured within thirty (30) days after Notice to the Party in Default describing the Non -Monetary Default in reasonable detail. In the case of such a Non -Monetary Default that cannot with reasonable diligence be cured within thirty (30) days after the effective date of Notice of such Default, an Event of Default shall occur, if the Party in Default does not do all of the following:
(a) within thirty (30) days after Notice of such Non -Monetary Default, advise the other Party of the intention of the Party in Default to take all reasonable steps to cure such Non -Monetary Default; (b) duly commence such cure within such thirty (30) day period; and (c) diligently prosecute such cure to completion within a reasonable time under the circumstances.

1.1.18 Federal. The federal government of the United States of America.

1.1.19 FIRPTA Affidavit. A certification that Seller is not a “foreign person” within the meaning of such term under Section 1445 of the United States Internal Revenue Code.

1.1.20 Form 593. A California Franchise Tax Board Form 593-C.

1.1.21 Government. Any an d all courts, boards, agencies, commissions, offices or authorities of any nature whatsoever of any governmental unit (Federal, State, County, district, municipal or otherwise) whether now or later in existence.

1.1.22 Quitclaim Deed. A deed conveying Seller ’s i nterest in the Premises from Seller to Buyer, at the Close of Escrow, substantially in the form of Exhibit “B” attached to this Agreement.

1.1.23 Hazardous Substance . Any flammable substance, explosive, radioactive material, asbestos, asbestos -containing material, polychlorinated biphenyl, chemical known to cause cancer or reproductive toxicity, pollutant, contaminant, hazardous waste, medical wastes, toxic substance or related material, explosive, petroleum, petroleum product or any “hazardous” or “toxic” material, substance or waste that is defined by those or similar terms or is regulated as such under any Law, including any material, substance or waste that is: (a) defined as a “hazardous substance” under Section 311 of the Water Pollution Control Act (33 U.S.C. § 1317), as amended; (b) designated as “hazardous substances” pursuant to 33 U.S.C. § 1321; (c) defined as a “hazardous waste” under Section 1004 of the Resource Conservation and Recovery Act of 1976, 42 U.S.C. § 6901, et seq., as amended; (d) defined as a “hazardous substance” or “hazardous waste ” under Section 101 of the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended by the Superfund Reauthorization Act of 1986, 42 U.S.C. § 9601, et seq., or any so -called “superfund” or 155
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“superlien” law; (e) defined as a “pollutant” or “contaminant” under 42 U.S.C. § 9601(33); (f) defined as “hazardous waste” under 40 C.F.R. Part 260; (g) defined as a “hazardous chemical” under 29 C.F.R. Part 1910; (h) any matter within the defi nition of “hazardous substance ” set forth in 15 U.S.C. § 1262; (i) any matter, waste or substance regulated under the Toxic Substances Control Act ( “TSCA”) [15 U.S.C. Sections 2601, et seq.]; (j) any matter, waste or substance regulated under the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; (k) those substances listed in the United States Department of Transportation (DOT) Table [49 C.F.R. 172.101]; (l) any matter, waste or substances designated by the EPA, or any successor authority, as a hazardous substance [40 C.F.R. Part 302]; (m) defined as “hazardous waste” in Section 25117 of the California Health and Safety Code; (n) defined as a “hazardous substance” in Section 25316 of the California Health and Safety Code; (o) that is subject to any other Law regulating, relating to or imposing obligations, liability or standards of conduct concerning protection of human health, plant life, animal life, natural resources, property or the enjoyment of life or property free from the prese nce in the environment of any solid, liquid, gas, odor or any form of energy from whatever source; or (p) that is or becomes regulated or classified as hazardous or toxic under Law or in the regulations adopted pursuant to Law.

1.1.24 Hazardous Substance Discharg e. Any deposit, discharge, generation, release or spill of a Hazardous Substance that occurs at, on, under, into or from the Premises or during transportation of any Hazardous Substance to or from the Premises, or that arises at any time from any construc tion, installation, use or operation or other activities conducted at, on, under or from the Premises, whether or not caused by a Party.

1.1.25 Indemnify. Where this Agreement states that any Indemnitor shall “indemnify” any Indemnitee from, against or for a pa rticular Claim, that the Indemnitor shall indemnify the Indemnitee and defend and hold the Indemnitee harmless from and against such Claim (alleged or otherwise). “Indemnified” shall have the correlative meaning.

1.1.26 Indemnitee. Any Person entitled to be Ind emnified under the terms of this Agreement.

1.1.27 Indemnitor. A Party that agrees to Indemnify any other Person under the terms of this Agreement.

1.1.28 Initial Deposit. The amount listed as the Initial Deposit , if any, which shall be deposited with the Escrow Agent by Buyer on the Escrow Opening Date.

1.1.29 Law. Every law, ordinance, requirement, order, proclamation, directive, rule or regulation of any Government applicable to the Premises, in any way, including relating to any development, construction, use, maintenanc e, taxation, operation, occupancy of or environmental conditions affecting the Premises, or relating to any taxes, or otherwise relating to this Agreement or any Party’s rights, obligations or remedies under this Agreement, or any transfer of any of the fo regoing, whether in force on the Effective Date or passed, enacted, modified, amended or imposed at some later time, subject in all cases, however, to any applicable waiver, variance or exemption.

1.1.30 Legal Costs . In reference to any Person, all reasonable co sts and 156
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expenses such Person incurs in any legal proceeding or other matter for which such Person is entitled to be reimbursed for its Legal Costs, including reasonable attorneys’ fees, court costs and expenses and consultant and expert witness fees and expenses.

1.1.31 LRPMP. In 2013, t he long range property management plan was prepared by Seller and subsequently approved by the Oversight Board and the California Department of Finance, in accordance with Health and Safety Code section 34191.5.

1.1.32 Monetary Default. Any failure by either Party to pay or deposit, when and as this Agreement requires, any amount of money, bond or surety required to be provided under this Agreement, whether to or with a Party or a Third Person.

1.1.33 Non-Monetary Default. The occurrence of any of the following, except to the extent constituting a Monetary Default or an Escrow Default: (a) any failure of a Party to perform any of such Party ’s obligations under this Agreement; (b) any failure of a Party to comply with any material restriction or prohibition in this Agreement; or (c) any other event or circumstance that, with passage of time or giving of Notice, or both, or neither, would constitute a breach of this Agreement by a Party.

1.1.34 Notice. Any consent, demand, designation, election, notice or request relating to this Agreement, including any Notice of Default. All Notices must be in writing.

1.1.35 Parties. Collectively, Seller and Buyer.

1.1.36 Party. Individually, either Seller or Buyer, as applicable.

1.1.37 Permitted Exception. All of the following: (a) all items shown in the Preliminary Report as exceptions to coverage under the proposed Buyer Title Policy; (b) any lien for non-delinquent property taxes or assessments; (c) any Laws applicable to the Premises; (d) this Agreement; (e) any existing improvem ents on the Premises, if any; (f) any other document or encumbrance expressly required or allowed to be recorded against the Premises pursuant to the terms of this Agreement.

1.1.38 Person. Any association, corporation, governmental entity or agency, individual, joint venture, joint -stock company, limited liability company, partnership, trust, unincorporated organization or other entity of any kind.

1.1.39 Preliminary Report. A preliminary report issued by the Title Company in contemplation of the issuance of the Buyer Title Policy, accompanied by copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Buyer Title Policy.

1.1.40 Premises. That certain real property specifically described in Exhibit “A” attached to this Agreement.

1.1.41 Purchase Price . The Purchase Price is One Hundr ed Fifty Thousand Even Dollars ($150,000).
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1.1.42 Real Estate Taxes . All general and special real estate taxes (including taxes on fixtures and equipment, sales taxes, use taxes and the like), supplemental ta xes, possessory interest taxes, special taxes imposed pursuant to a special taxing district, assessments, municipal water and sewer rents, rates and charges, excises, levies, license and permit fees, fines, penalties and other governmental charges and any interest or costs with respect thereto, general and special, ordinary and extraordinary, foreseen and unforeseen, of any kind or nature whatsoever regarding the Premises that may be assessed, levied, imposed upon, or become due and payable out of or in respect of, or charged with respect to or become a lien on, the Premises.

1.1.43 Seller. The Successor Agency to the Fontana Redevelopment Agency , a public corporation.

1.1.44 State. The State of California.

1.1.45 Third Person. Any Person that is not a Party, an Affiliate of a Party or an officer, director, manager, shareholder, member, principal, partner, employee or agent of a Party.

1.1.46 Title Company . [INSERT TITLE COMPANY] , or such other Person mutually agreed upon in writing by both Seller and Buyer.

1.1.47 Unavoidable Delay. A de lay in either Party performing any obligation under this Agreement arising from or on account of any cause whatsoever beyond the Party ’s reasonable control, including strikes, labor troubles or other union activities, casualty, war, acts of terrorism, riot s, li tigation, governmental action or inaction, regional natural disasters or inability to obtain required materials. Unavoidable Delay shall not include delay caused by a Party’s financial condition or insolvency.

2. PURCHASE AND SALE OF PREMISES

2.1 Escrow. Seller shall sell the Premises to Buyer and Buyer shall purchase the Premises from Seller, subject to the Permitted Exceptions, on the terms and conditions of this Agreement. For the purposes of exchanging funds and documents to complete the sale of the Premises from Seller to Buyer and the purchase of the Premises by Buyer from Seller, pursuant to the terms and conditions of this Agreement, Seller and Buyer agree to open the Escrow with the Escrow Agent. Buyer shall cause the Escrow to be opened within t wo bu siness (2) days following the Effective Date. Escrow Agent shall promptly confirm the Escrow Opening Date in writing to each of the Parties. The provisions of Section 3 are the joint escrow instructions of the Parties to the Escrow Agent for conducting the Escrow.

2.2 Payment of Purchase Price. Buyer shall purchase the Premises from Seller for the Purchase Price, subject to the terms and conditions of this Agreement. Buyer shall pay the Purchase Price to Seller at the Close of Escrow in immediately available funds.

2.3 Initial Deposit . Buyer shall deliver the Initial Deposit to Escrow Agent on the Escrow Opening Date.

2.4 Buyer’s Approval of Title to Premises . Buyer acknowledges and agrees that it 158
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has received the Preliminary Report for the Premises and has approved the status of title to the Premises.

2.5 “AS-IS” Acquisition. Except for the representations and warranties set forth herein that expressly survive the Close of Escrow, the Close of Escrow shall evidence Buyer ’s unconditional and irrevocable acceptance of the Premises in the Premises’ AS IS, WHERE IS,

SUBJECT TO ALL FAULTS CONDITION, AS OF THE CLOSE OF ESCROW, WITHOUT WARRANTY as to character, quality, performance, condition, title, physical condition, zoning, land use restrictions, the availability or location of utilities or services, the location of any public infrastructure on or off of the Premises (active, inactive or abandoned), the suitability of the Premises for Buyer ’s intended use or any other use or the exist ence or absence of Hazardous Substances affecting the Premises and with full knowledge of the physical condition of the Premises, the nature of Seller ’s interest in and use of the Premises, all laws applicable to the Premises and any and all conditions, co venants, restrictions, encumbrances and all matters of record relating to the Premises. The Close of Escrow shall further constitute Buyer ’s representation and warranty to Seller that: (a) Buyer has had ample opportunity to inspect and evaluate the Premises and the feasibility of the uses and activities Buyer is entitled to conduct on the Premises; (b) Buyer is experienced in real estate development; (c) Buyer is relying entirely on Buyer’s experience, expertise and Buyer ’s own inspection of the Premises in the Premises’ current state in proceeding with acquisition of the Premises; (d) Buyer accepts the Premises in the Premises’ condition as of the Close of Escrow; (e) to the extent that Buyer ’s own expertise with respect to any matter regarding the Premises is insufficient to enable Buyer to reach an informed conclusion regarding such matter, Buyer has engaged the services of Persons qualified to advise Buyer with respect to such matters; (f) Buyer has received assurances acceptable to Buyer by means indep endent of Seller or Seller ’s agents of the truth of all facts material to Buyer’s acquisition of the Premises; and (g) the Premises is being acquired by Buyer as a result of Buyer’s own knowledge, inspection and investigation of the Premises and not as a r esult of any representation made by Seller or Seller ’s agents relating to the condition of the Premises, unless such statement or representation is expressly and specifically set forth in this Agreement.

Seller hereby expressly and specifically disclaims any express or implied warranties regarding the Premises other than those expressly set forth herein.

3. JOINT ESCROW INSTRUCTIONS

3.1 Escrow Instructions. This Section 3 constitutes the joint escrow instructions of the Parties to Escrow Agent for conduct of the Escrow for the purchase and sale of the Premises, as contemplated by this Agreement. Buyer and Seller shall sign such further escrow instructions consistent with the provisions of this Agreement as may be reas onably requested by Escrow Agent. In the event of any conflict between the provisions of this Agreement and any further escrow instructions requested by Escrow Agent, the provisions of this Agreement shall control.

3.2 Escrow Agent Authority. Seller and Buyer authorize Escrow Agent to:

3.2.1 Charges. Pay and charge Seller and Buyer for their respective shares of the applicable fees, taxes, charges and costs payable by either Seller or Buyer regarding the Escrow;
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3.2.2 Settlement/Closing Statements. Release each Party ’s Escrow Closing Statement to the other Party;

3.2.3 Document Recording . File any documents delivered for recording through the Escrow with the office of the Recorder of the County for recordation in the official records of the County, pursuant to the joint instructions of the Parties; and

3.2.4 Counterpart Documents. Utilize documents signed by Seller or Buyer in counterparts, including attaching separate signature pages to one original of the same document.

3.3 Buyer’s Conditions Precedent to Close of Escrow . Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Buyer, Buyer’s obligation to purchase the Premises from Seller on the Escrow Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by Buyer) of each of the following conditions:

3.3.1 Approval of Purchase and Sale by Oversight Board and DOF . The purchase and sale of the Premises pursuant to this Agreement shall be submitted for approval by the Countywide Oversight Board (the “Oversight Board” ), and following such approval and notification of the State Department of Finance, the State Department of Finance either approves the purchase and sale of the Premises or does not object within the timeframes set forth i n California Health & Safety Code Section 34181(f).

3.3.2 Title Policy . Title Company is committed to issue the Buyer Title Policy to Buyer upon payment of Title Company’s premium for such policy;

3.3.3 Seller Escrow Deposits . Seller deposits all of the items into Escrow required by Section 3.6;

3.3.4 Settlement/Closing Statement . Buyer reasonably approves Buyer ’s Escrow Closing Statement;

3.3.5 Seller Pre -Closing Obligations . Seller performs all of the material obligations required to be performed by Seller pursuant to this Agreement prior to the Close of Escrow.

3.4 Seller’s Conditions Precedent to Close of Escrow. Provided that the failure of any such condition to be satisfied is not due to a Default under this Agreement by Seller, Seller’s obligation to sell the Premises to Buyer on the Escrow Closing Date shall be conditioned upon the satisfaction or waiver (waivers must be in writing and signed by Seller) of each of the following conditions precedent to such sale on or before the Escrow Closing Date:

3.4.1 Approval of Purchase and Sale by Oversight Board and DOF . The purchase and sale of the Premises pursuant to this Agreement shall be approved by the Oversight Board, and following such approval and notification of the State Department of F inance, the State Department of Finance either approves the purchase and sale of the Premises or does not object within the timeframes set forth in California Health & Safety Code Section 34181(f). 160
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3.4.2 Buyer Escrow Deposits . Buyer deposits all of the it ems i nto Escrow required by Section 3.5;

3.4.3 Settlement/Closing Statement . Seller reasonably approves Seller ’s Escrow Closing Statement; and

3.4.4 Buyer Pre -Closing Obligations . Buyer performs all of the material obligations required to be performed by Buyer pursuant to this Agreement prior to Close of Escrow.

3.5 Buyer’s Escrow Deposits . Buyer shall deposit the following items into Escrow and, concurrently, provide a copy of each document submitted into Escrow to Seller, a t least one (1) Business Day prior to the Escrow Closing Date:

3.5.1 Closing Funds . All monetary amounts required to be deposited into Escrow by Buyer under the terms of this Agreement to close the Escrow, all in immediately available funds;

3.5.2 Escrow Closing Stat ement. Buyer ’s Escrow Closing Statement signed by the authorized representative(s) of Buyer; and

3.5.3 Other Reasonable Items . Any other money or documents required to be delivered by Buyer under the terms of this Agreement or as otherwise reasonably requested by Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that have not previously been delivered by Buyer.

3.6 Seller’s Escrow Deposits . Seller shall deposit the following items into Escrow and, concurrently, provide a copy of each document (excluding the Deed) deposited into Escrow to Buyer, at least one (1) Business Day prior to the Escrow Closing Date:

3.6.1 Quitclaim Deed. The Deed signed by the authorized representative(s) of Seller in recordable form;

3.6.2 Escrow Closing Stateme nt. Seller’s Escrow Closing Statement signed by the authorized representative(s) of Seller;

3.6.3 FIRPTA Affidavit . A FIRPTA affidavit signed by the authorized representative(s) of Seller, in the form used by the Escrow Agent;

3.6.4 Form 593 . A Form 593 signed by t he au thorized representative(s) of Seller; and

3.6.5 Other Reasonable Items . Any other money or documents required to be delivered by Seller under the terms of this Agreement or as otherwise reasonably requested by Escrow Agent or Title Company in order to close the Escrow or comply with applicable Law that have not been previously delivered by Seller.

3.7 Closing Procedure. Upon Escrow Agent ’s receipt of written confirmation from 161
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both Buyer and Seller that each of their respective conditions precedent to the Clos e of Escrow are satisfied or waived, Escrow Agent shall close the Escrow by doing all of the following:

3.7.1 Recording and Distribution of Documents . Escrow Agent shall cause the following documents to be filed with the Recorder of the County for recording in the official records of the County regarding the Premises in the following order of priority at Close of Escrow: (a) the Deed; and (b) any other documents to be recorded regarding the Premises through the Escrow upon the joint instructions of the Parties. At Close of Escrow, Escrow Agent shall deliver conformed copies of all documents filed with the Recorder of the County for recording in the official records of the County through the Escrow to Seller, Buyer and any other Person designated in the written j oint escrow instructions of the Parties to receive an original or conformed copy of each such document. Each conformed copy of a document filed for recording shall show all recording information. The Parties intend and agree that this Section

3.7.1 shall establish the relative priorities of the documents to be recorded in the official records of the County through the Escrow, by providing for recordation of senior interests prior to junior interests, in the order provided in this Section 3.7.1;

3.7.2 Funds. Distribute all funds held by the Escrow Agent pursuant to the Escrow Closing Statements approved in writing by Seller and Buyer, respectively;

3.7.3 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service;

3.7.4 Form 593. File the Form 593 with the California Franchise Tax Board; and

3.7.5 Title Policy. Obtain from the Title Company and deliver to Buyer the Buyer Title Policy issued by the Title Company.

3.8 Close of Escrow . The Close of Escrow shall occur on or before the Escrow Closing Date. If for any reason the Close of Escrow has not occurred on or before the Escrow Closing Date, then any Party not then in Default under this Agreement may cancel the Escrow and terminate this Agreement, without liability to the other Party or any other Person for such cancellation and termination, by delivering Notice of termination to both the other Party and Escrow Agent. Following any such Notice of termination of this Agreement and cancellation of the Escrow, the Parties and Escrow Agent shall proceed pursuant to Section 3.12. Without limiting the right of either Party to cancel the Escrow and terminate this Agreeme nt, pursuant to this Section 3.8, if the Escrow does not close on or before the Escrow Closing Date and neither Party has exercised its contractual right to cancel the Escrow and terminate this Agreement under this Section 3.8 before the first date on which Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with the terms and conditions of this Agreement, then the Escrow shall close as so on as reasonably possible following the first date on which Escrow Agent Notifies both Parties that Escrow is in a position to close in accordance with the terms and conditions of this Agreement.

3.9 Escrow Costs . Escrow Agent shall Notify Buyer and Sell er of the costs to be borne by each of them at the Close of Escrow by delivering an Escrow Closing Statement to both 162
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Seller and Buyer at least four (4) Business Days prior to the Escrow Closing Date. Each party shall pay its own costs and expenses arising in connection with the Closing (including, without limitation, its own attorneys ’ and advisors ’ fees, charges, and disbursements), except the following costs (the “Closing Costs”), which shall be allocated between the parties as follows:
(a) Escrow fees and costs shall be paid one-half by Seller and one-half by Buyer;
(b) The cost of the Title Policy attributable to the standard coverage portion shall be paid by Seller;
(c) The cost of the Title Policy attributable to the extended coverage portion shall be paid by Buyer; and
(d) Buyer shall pay the cost of any documentary transfer taxes in connection with the recording of the Deed;
(e) All other closing fees and costs shall be charged to and paid by Seller and Buyer in accordance with customary practices in the County.

3.10 Allocation of Taxes. Real Estate Taxes relating to the Premises, if any, shall be prorated between Seller and Buyer as of Midnight on the date prior to the Close of Escrow.

3.11 Escrow Cancellation Charges. If the Escrow fails to close due to Seller ’s Default under this Agreement, Seller shall pay all ordinary and reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company, respectively, if any. If the Escrow fails to close due to Buyer ’s Default under this Agreement, Buyer shall pay all ordinary and reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company, respectively, if any. If the Escrow fails to close for any reason other than the Default of either Buyer or Seller, Buyer and Seller sha ll ea ch pay one -half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges charged by Escrow Agent or Title Company, respectively, if any.

3.12 Escrow Cancellation. If this Agreement is terminated pursuant to a contractual right gran ted t o a Party in this Agreement to terminate this Agreement (other than due to an Event of Default by the other Party), the Parties shall do all of the following:

3.12.1 Cancellation Instructions. The Parties shall, within seven (7) Business Days following Escr ow Ag ent’s written request, sign any reasonable Escrow cancellation instructions requested by Escrow Agent;

3.12.2 Return of Funds and Documents . Within seven (7) Business Days following receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Agent (if any) or within seven (7) Business days following Notice of termination, whichever is earlier: (a) Buyer or Escrow Agent shall return to Seller all documents previously delivered by Seller to Buyer or Escrow Agent, respectively, regarding the Escrow; (b) Seller or Escrow Agent shall return to Buyer all documents previously delivered by Buyer to Seller or Escrow Agent, respectively, regarding the Escrow; (c) Escrow Agent shall, unless 163
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otherwise provided in this Agre ement, return to Buyer all funds deposited in Escrow by Buyer, less Buyer’s share of customary and reasonable Escrow and title order cancellation charges (if any) in accordance with Section 3.11; and (d) Escrow Agent shall, unless otherwise provided in this Agreement, return to Seller all funds deposited in Escrow by Seller, less Seller ’s share of customary and reasonable Escrow and title order cancellation charges (if any) in accordance with Section 3.11.

3.13 Eminent Domain. If any portion of the Premises or any interest in any portion of the Premises becomes the subject of any eminent domain proceeding prior to Close of Escrow, including the filing of any notice of intended eminent domain action or proceedings in the nature of eminent domain, Seller shall give Buyer Notice of such occurrence and Buyer shall have the option, exercisable within ten (10) Business Days after receipt of such Notice from Seller, to either: (a) cancel the Escrow and terminate this Agreement, in which case the Parties and the Escrow Agent shall proceed in accordance with Section 3.12; or (b) continue with this Agreement in accordance with its terms, in which event Seller shall assign to Buyer, at the Close of Escrow, any right of Seller to receive any eminent domain award attributable to the Premises acquired by Buyer pursuant to this Agreement.

4. REMEDIES

4.1 BUYER’S RIGHT TO SPECIFIC PERFORMANCE AND LIMITATI ON ON RECOVERY OF DAMAGES.

4.1.1 ELECTION OF REMEDIES . DURING THE CONTINUANCE OF

AN EVENT OF DEFAULT BY SELLER UNDER THIS AGREEMENT PRIOR TO THE CLOSING, BUYER SHALL BE LIMITED TO EITHER OF THE FOLLOWING REMEDIES:
(1) AN ACTION AGAINST SELLER FOR SPECIFIC PERFO RMANCE OF THIS AGREEMENT; OR (2) TERMINATION OF THIS AGREEMENT AND AN ACTION TO RECOVER THE INITIAL DEPOSIT. UNDER NO CIRCUMSTANCES SHALL SELLER BE

LIABLE TO BUYER UNDER THIS AGREEMENT FOR ANY AMOUNT EXCEEDING THE AMOUNT SET FORTH IN THIS SECTION 4.1.1, ANY SPECULATIVE,

CONSEQUENTIAL, COLLATERAL, SPECIAL, PUNITIVE OR INDIRECT DAMAGES OR

FOR ANY LOSS OF PROFITS SUFFERED OR CLAIMED TO HAVE BEEN SUFFERED BY BUYER.

4.1.2 WAIVER OF RIGHTS . SELLER AND BUYER EACH

ACKNOWLEDGE AND AGREE THAT SELLER WOULD NOT HAVE ENTERED INTO

THIS AGREEMENT IF SELLER WERE TO BE LIABLE TO BUYER FOR ANY

MONETARY DAMAGES, MONETARY RECOVERY OR ANY REMEDY DURING THE

CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SELLER,

OTHER THAN SPECI FIC P ERFORMANCE OF THIS AGREEMENT OR TERMINATION OF THIS AGREEMENT AND PAYMENT OF THE AMOUNT SPECIFIED IN CLAUSE “(2)” OF SECTION 4.1.1. ACCORDINGLY, SELLER AND BUYER AGREE THAT THE REMEDIES SPECIFICALLY PROVID ED FO R IN SECTION 4.1.1 ARE REASONABLE AND SHALL BE BUYER ’S SOLE AND EXCLUSIVE RIGHTS AND REMEDIES DURING

THE CONTINUANCE OF AN EVENT OF DEFAULT UNDER THIS AGREEMENT BY SELLER. BUYER WAIVES ANY RIGHT TO PURSUE ANY R EMEDY OR DAMAGES 164
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AGAINST SELLER ARISING FROM OR RELATING TO THIS AGREEMENT OTHER THAN THOSE SPECIFICALLY PROVIDED IN SECTION 4.1.1.

4.1.3 STATE CIVIL CODE SECTION 1542 WAIVER . BUYER
ACKNOWLEDGES THE PROTECTIONS OF ST ATE CIVIL CODE SECTION 1542 REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 4.1, WHICH CIVIL CODE SECTION READS AS FOLLOWS:

A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE, AND THAT, IF

KNOWN BY HIM OR HER , WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.

4.1.4 ACKNOWLEDGMENT. BY INITIALING BELOW, BUYER

KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF STATE CIVIL CODE SECTION 1542 AND ALL OTHER STATUTES AND JUDICIAL DECISIONS (WHETHER STATE OR FEDERAL) OF SIMILAR EFFECT SOLELY REGARDING THE WAIVERS AND RELEASES CONTAINED IN THIS SECTION 4.1.
_______________________
Initials of Authorized
Buyer Representative(s)

4.1.5 STATEMENT OF INTENT . STATE CIVIL CODE SECTION 1542

NOTWITHSTANDING, IT IS THE INTENTION OF BUYER TO BE BOUND BY THE LIMITATIONS ON DAMAGES AND REMEDIES SET FORTH IN THIS SECTION 4.1, AND

BUYER HEREBY RELEASES ANY AND ALL CLAIMS AGAINST SELLER FOR

MONETARY DAMAGES, MONETARY RECOVERY OR OTHER LEGAL OR EQUITABLE

RELIEF RELATED TO ANY EVENT OF DEFAU LT UN DER THIS AGREEMENT BY SELLER, EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4.1, WHETHER OR

NOT ANY SUCH RELEASED CLAIMS WERE KNOWN OR UNKNOWN TO BUYER AS OF THE EFFECTIVE DATE.

4.2 LIQUIDATED DAMAGES TO SELLER. IF THE CLOSE OF ESCROW DOES NOT OCCUR ON OR BEFORE THE ESCROW CLOSING DATE DUE TO BUYER ’S

DEFAULT, THEN SELLER SHALL RETAIN THE INITIAL DEPOSIT , AS LIQUIDATED DAMAGES. THE AMOUNT OF THE INITIAL DEPOSIT IS THE REASONABLE

ESTIMATE BY THE PARTIES OF TH E DAM AGES SELLER WOULD SUFFER FROM

SUCH DEFAULT, IT BEING AGREED THAT IT IS EXTREMELY DIFFICULT, IF NOT

IMPOSSIBLE AND IMPRACTICABLE, TO FIX THE EXACT AMOUNT OF DAMAGE

THAT WOULD BE INCURRED BY SELLER AS A RESULT OF SUCH DEFAULT BY BUYER. UPON SUCH A DEFA ULT BY BUYER, ESCROW SHALL BE CANCELED AND THE PARTIES SHALL PROCEED IN ACCORDANCE WITH SECTION Error! Reference source not found.. IN ADDITION, IF ALL OR ANY PORTION OF THE INITIAL DEPOSIT 165
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HAS BEEN DEPOSITED INTO ESCROW BY BUYER, ESCROW AGENT IS HEREBY

IRREVOCABLY INSTRUCTED BY BUYER AND SELLER TO DISBURSE THE INITIAL DEPOSIT TO SELLER AS LIQUIDATED DAMAGES FOR BUYER ’S DEFAULT UNDER

THIS AGREEMENT AND FAILURE TO COMPLETE THE PURCHASE OF THE PREMISES, PURSUANT TO CALIFORNIA CIVIL CODE SECTIONS 1671, ET. SEQ.

4.3 Legal Actions . Either Party may institute legal action, at law or in equity, to enforce or interpret the rights or obligations of the Parties under this Agreement or recover damages, subject to the provisions of Section 4.1 or Section 4.2, as applicable.

4.4 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this Agreement are cumulative and the exercise by either Party of one or more of such rights or remedies shall not preclude the exercise by such Party, at the same or different times, of any other rights or remedies for the same Default or the same rights or remedies for any other Default by the other Party.

5. GENERAL PROVISIONS

5.1 Notices, Demands and Communications Between the Parties . Any and all Notices submitted by one Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and sent by messenger for immediate personal delivery, nationally recognized overnight (one Business Day) delivery service (i.e., United Parcel Service, Federal Express, etc.) or by registered or certified United States mail, postage prepaid, return receipt requested, to the address of the recipient Party, as designated below in this Section 5.1. Notices may be sent in the same manner to such other addresses as either Party may from time to time designate by Notice in accordance with this Section 5.1. Notice shall be deemed received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that the No tice is sent by messenger for immediate personal delivery, one Business Day after delivery to a nationally recognized overnight delivery service or three (3) calendar days after the Notice is placed in the United States mail in accordance with this Section 5.1. Any attorney representing a Party may give any Notice on behalf of such Party. The Notice addresses for the Parties, as of the Effective Date, are as follows:

To Buyer:

City of Fontana
____________________
To Seller: Successor Agency to the Fontana
Redevelopment Agency
8492 Wheeler Avenue
Fontana, California 92335
Attention: Executive Director

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With a copy to: Best Best & Krieger LLP
2855 E. Guasti Road, Suite 400
Ontario, CA 91761
Attn: Ruben Duran

5.2 Relationship of Parties . The Parties each intend and agree that Seller and Buyer are independent contracting entities and do not intend by this Agreement to create any partnership, joint venture or similar business arran gement, relationship or association between them.

5.3 Calculation of Time Periods . Unless otherwise specified, all references to time periods in this Agreement measured in days shall be to consecutive calendar days, all references to time periods in this Agre ement measured in months shall be to consecutive calendar months and all references to time periods in this Agreement measured in years shall be to consecutive calendar years. Any reference to Business Days in this Agreement shall mean consecutive Business Days.

5.4 Governing Law. The procedural and substantive laws of the State shall govern the interpretation and enforcement of this Agreement, without application of conflicts of laws principles or statutes. The Parties acknowledge and agree that this Agreem ent is entered into, is to be fully performed in and relates to real property located in the County. All legal actions arising from this Agreement shall be filed in the Superior Court of the State in and for the County of San Bernardino or in the United States District Court with jurisdiction in the County.

5.5 Unavoidable Delay; Extension of Time of Performance . Performance by either Party under this Agreement shall not be deemed or considered to be in Default, where any such Default is due to the occurrence of an Unavoidable Delay. Any Party claiming an Unavoidable Delay shall Notify the other Party: (a) within twenty (20) days after such Party knows of any such Unavoidable Delay; and (b) within twenty (20) days after such Unavoidable Delay ceases to exist. Th e extension of time for performance under this Agreement resulting from the occurrence of an Unavoidable Delay shall commence on the date of occurrence of the condition causing the Unavoidable Delay and shall in no event be longer than ninety (90) days after written notice is received by a Party from the other Party of the occurrence of such an Unavoidable Delay; provided, however, that failure to perform by a Party due to the occurrence of an Unavoidable Delay shall not constitute a breach or Default of th is Agreement. Notice of an Unavoidable Delay must describe the Unavoidable Delay in reasonable detail. The Party claiming an extension of time to perform due to an Unavoidable Delay shall exercise commercially reasonable efforts to cure the conditio n causing the Unavoidable Delay, within a reasonable time.

5.6 Real Estate Commissions . Seller shall not be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement.

Buyer shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals.
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5.7 No Third-Party Beneficiaries. Nothing in this Agreement, express or implied, is intended to confer any rights or remedies under or by reason of this Agreement on any Person other than the Parties and their respective permitted successors and assigns, nor is anything in this Agreement intended to relieve or discharge any obligation of any Third Person to any Party or give any Third Person any right of subrogation or action over or against any Party.

5.8 Effect. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors and assigns.

5.9 Time D eclared to be of the Essence . As to the performance of any obligation under this Agreement of which time is a component, the perfor mance of such obligation within the time specified is of the essence.

5.10 Entire Agreement . This Agreement integrates all of th e terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Premises.

5.11 Waivers and Amendments. All waivers of the provisions of this Agreement must be in writing and signed by the authorized representative(s) of the Party making the waiver.

Failure to insist on any one occasion upon strict compliance with any term, covenant, condition, restriction or agreement contained in this Agreem ent shall not be deemed a waiver of such term, covenant, condition, restriction or agreement, nor shall any waiver or relinquishment of any rights or powers under this Agreement, at any one time or more times, be deemed a waiver or relinquishment of such r ight or power at any other time or times. All amendments to this Agreement must be in writing and signed by the authorized representative(s) of both Seller and Buyer.

5.12 Survival of Agreement . All of the provisions of this Agreement shall be applicable to a ny dispute between the Parties arising from this Agreement, whether prior to or following expiration or termination of this Agreement, until any such dispute is finally and completely resolved between the Parties, either by written settlement, entry of a n on-appealable judgment or expiration of all applicable statutory limitations periods and all terms and conditions of this Agreement relating to dispute resolution, indemnity or limitations on damages or remedies shall survive any expiration or termination of this Agreement.

5.13 Counterparts. This Agreement may be signed in multiple counterpart originals each of which is deemed to be an original and all of which shall constitute one agreement.

5.14 Facsimile or Electronic Signatures . Signatures delivered by facsi mile or electronically shall be binding as originals upon the Party so signing and delivering; provided, however, that original signature(s) of each Party shall be required for each document to be recorded.
[Signatures on following page]
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SIGNATURE PAGE
TO

REAL PROPERTY PURCHASE AND SALE AGREEMENT

IN WITNESS WHEREOF, the Parties have signed and entered into this Agreement by and through the signatures of their respective authorized representative(s) as follow:

SELLER:

SUCCESSOR AGENCY TO THE FONTANA
REDEVELOPMENT AGENCY, a public
corporation

By:

Executive Director

Attest:

By:

Secretary to the Successor Agency

Approved as to form:

Best Best & Krieger LLP

By:

Successor Agency Counsel

BUYER:

CITY OF FONTANA, a municipal corporation

By:________________________________

Name:_____________________________

Title:_______________________________

Attest:

By:

City Clerk

Approved as to form:

Best Best & Krieger LLP

By:

City Attorney

169
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EXHIBIT A

EXHIBIT A
TO

REAL PROPERTY PURCHASE AND SALE AGREEMENT
Premises Legal Description
170
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EXHIBIT B
TO

REAL PROPERTY PURCHASE AND SALE AGREEMENT
Quitclaim Deed
171
16498.00100\41989059.1

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
_________________________
_________________________
_________________________
Attention: ________________

SPACE ABOVE THIS LINE FOR RECORDER’S USE
Exempt from Recording Fees – Government Code section 27383

QUITCLAIM DEED

The undersigned declares:

Documentary Transfer Tax is:

County of San Bernardino; City of Fontana
Assessor’s Parcel Nos.: [SEE EXHIBIT “1”]
□ computed on full value of interest or property conveyed, or □ computed on full value of liens or encumbrances remaining at time of sale. □ Unincorporated Area X City of Fontana

FOR VALUABLE CONSIDERATION, receipt of which is hereby acknowledged,

Successor Agency to the Fontana Redevelopment Agency, a public corporation (“Grantor”),

hereby remise, release and quitclaim to

City of Fontana, a municipal corporation (“Grantee”),

the following described real property legally described in Exhibit “1” attached to and by this reference incorporated into this Quitclaim Deed.

Dated: ________________________ SUCCESSOR AGENCY TO THE FONTANA REDEVELOPMENT AGENCY, a public
corporation

By:

Executive Director
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EXHIBIT “1”
TO

QUITCLAIM DEED

Legal Description

173
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2814 Agenda Date: 2/13/2024
Agenda #: N. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Dedication of Fire Station 81 in honor of veteran Fontana Fire Department Engineer Robert E.

Hartness
RECOMMENDATION:

Approve the dedication of Fire Station 81 in honor of veteran Fontana Fire Department Engineer Robert E. Hartness
COUNCIL GOALS:
· Create and maintain a dynamic team by supporting the decisions of the majority once made.

DISCUSSION:

Engineer Robert E. Hartness was a veteran member of the Fontana Fire Department who died in the line of duty on August 18, 1966, while battling a brush fire. The brush fire swept over five acres at Baseline and Oleander Avenue close to where Fire Station 81 now stands.

During the regular meeting of the City Council on January 23, 2024, Council Member Roberts requested that the dedication of Fire Station 81 in honor of Engineer Hartness be placed on a future meeting agenda with the concurrence of the City Council.

Before the Council is a request to dedicate and name Fire Station 81 after former Engineer Robert E.

Hartness to honor him for his 19 years of service and commitment to the community and profession.

FISCAL IMPACT:

None
MOTION:

Approve Staff Recommendation.
.

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2824 Agenda Date: 2/13/2024
Agenda #: O. Category: Consent Calendar
FROM:

City Manager's Office
SUBJECT:

Adoption of Resolution No. 2024-006 ratifying the Director of Emergency Services' Proclamation of Existence of a Local Emergency
RECOMMENDATION:

1. Ratify the proclamation of the existence of a local emergency within the City of Fontana as a result of a powerful, slow moving, atmospheric river that struck California beginning February 3, 2024;

2. Adopt Resolution No. 2024-006, proclaiming the existence of a local emergency and waive the full reading.

COUNCIL GOALS:
· Improve public safety by minimizing impacts from disasters through emergency and disaster preparedness.
· Create and maintain a dynamic team by promoting stability and predictability by providing consistent policy direction.

DISCUSSION:

The City Council finds it necessary to declare a local state of emergency within the City of Fontana as a result of a powerful, slow moving, atmospheric river that struck California beginning February 3, 2024. These extreme weather conditions have caused significant road damage and clean-up throughout the City due to the significant amount of rain fall and flooding. These conditions pose imminent threats to public safety, transportation infrastructure, and essential services within the City.

Section 8-6 (a) (1) of the Municipal Code provides that the Director of Emergency Services may issue a proclamation declaring an emergency and issue such orders as necessary to protect life and property. Also, that any declaration they issue must be ratified by the City Council within seven (7) days.

The State of California and the County of San Bernardino each proclaimed a State of Emergency on February 4, 2024 (attached). A declaration of the existence of a local emergency will enable the City to access additional resources, implement emergency measures, and coordinate response efforts effectively.

FISCAL IMPACT:

The declaration of the existence of a local emergency may result in additional expenditures related to emergency response, recovery efforts, and repairs to public infrastructure. Staff will provide regular City of Fontana Printed on 2/8/2024Page 1 of 2
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File #: 21-2824 Agenda Date: 2/13/2024
Agenda #: O. Category: Consent Calendar
updates on the financial impact of these actions as more information becomes available.

MOTION:

Approve Staff Recommendation.
.

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177
RESOLUTION NO. 2024-006

RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FONTANA,

CALIFORNIA, RATYFING THE PROCLAMATION OF THE EXISTENCE OF A

LOCAL EMERGENCY
WHEREAS, Chapter 8 of the Municipal Code empowers the City Council to proclaim a local emergency when the City of Fontana is affected or likely to be affected by a public calamity; and
WHEREAS, the National Weather Service issued a series of Winter Storm Warnings, Flood Watches, an extreme weather warning as a result of a powerful, slow moving, atmospheric river that struck California beginning February 3, 2024; and
WHEREAS, damage may continue due to ongoing weather activity including snow, rain, mudslides, debris runoff, and flooding; and WHEREAS, damage to infrastructure and property, including but not limited to sinkholes, degradation of pavement and vertical improvements may continue due to ongoing weather activity including snow, rain, mudslides, debris runoff, and flooding; and
WHEREAS, on February 4, 2024, Governor Gavin Newsom declared a state of emergency to exist in California due to conditions of damage and extreme peril to the safety and persons and property statewide; and WHEREAS, on February 4, 2024, the San Bernardino County Board of Supervisors proclaimed the existence of a local emergency due to conditions of damage and extreme peril to the safety and persons and property within San Bernardino County; and
WHEREAS, on February 8, 2024, the Police Chief, acting as the Director of Emergency Services did proclaim the existence of a local emergency within the City based on storm occurrences that began February 3, 2024, and WHEREAS. The City Council must ratify the proclamation of the existence of a local emergency within seven (7) days following the proclamation; and

BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FONTANA AS FOLLOWS:

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

SECTION 2. The City Council of the City of Fontana hereby ratifies he proclamation issued by the Director of Emergency Services on February 8, 2024.

SECTION 3. The City Council of the City of Fontana herby declares and proclaims that a local emergency now exists throughout the City. 178
Resolution No. 2024-006
SECTION 4. During the existence of said local emergency, the powers, functions, and duties of the Director of Emergency Services and the Emergency Organization of this City shall be those prescribed by state law, ordinances, and resolutions of this City and by the City of Fontana Emergency Plan.

SECTION 5. The City Manager is hereby directed to ensure City staff track costs associated with staffing, supplies and equipment related to this emergency.

SECTION 6. The local emergency shall be deemed to continue to exist until its termination is proclaimed by the City Council of the City of Fontana.

SECTION 7. Severability. If any provision of this Resolution of the application thereof to any person or circumstance is held invalid, such invalidity shall not affect the other provisions or applications, and to this end the provisions of this Resolution are declared to be severable.

SECTION 8. Effective Date. This Resolution shall become effective immediately.

APPROVED and ADOPTED by the City Council and signed by the Mayor and attested by the City Clerk this 13th day of February 2024.

I, Germaine Key, City Clerk of the City of Fontana, California, and Ex- Officio Clerk of the City Council, do hereby certify that the foregoing Resolution is the actual Resolution duly adopted by the City Council at a Regular Meeting on the 13th day of February 2024, 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
179

E X E C U T I V E D E P A R T M E N T

STATE OF CALIFORNIA

PROCLAMATION OF A STATE OF EMERGENCY

WHEREAS in early February 2024 a powerful, slow moving, atmospheric river (“early February 2024 storms”) struck California beginning February 3, 2024, and is expected to continue for several days threatening life and safety, public and private property and structures, and other critical infrastructure; and

WHEREAS the National Weather Service has issued multiple Winter Storm Warnings, High Wind Warnings, Wind Advisories, and Flood and Flash Flood Watches throughout the State in anticipation of the potential impacts from the early February 2024 storms, which include dangerous and life-threatening flooding and debris flows, heavy snow, and damaging wind causing property damage and power outages; and

WHEREAS the National Weather Service has also issued high surf advisories impacting coastal communities throughout California, forecasting large breaking waves and dangerous rip currents; and

WHEREAS the numerous wildfires over the last several years throughout southern California counties have caused massive burn scars, exacerbating the potential for precipitation to cause mud and debris flows; and

WHEREAS prepositioning of assets has taken place throughout the State, including the placement of swift water rescue teams, high water vehicles, and equipment for the clearing of debris; and

WHEREAS under the provisions of Government Code section 8558(b), I find that conditions of extreme peril to the safety of persons and property exist due to the early February 2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties; and

WHEREAS under the provisions of Government Code section 8558(b), I find that the conditions caused by the early February 2024 storms, by reason of their magnitude, are or are likely to be beyond the control of the services, personnel, equipment, and facilities of any single local government and require the combined forces of a mutual aid region or regions to appropriately respond; and

WHEREAS under the provisions of Government Code section 8625(c), I find that local authority is inadequate to cope with the magnitude of the anticipated impacts caused by the early February 2024 storms; and

WHEREAS under the provisions of Government Code section 8571, I find that strict compliance with various statutes and regulations specified in this Proclamation would prevent, hinder, or delay the mitigation of the effects of the early February 2024 storms.

NOW, THEREFORE, I, GAVIN NEWSOM, Governor of the State of California, in accordance with the authority vested in me by the State Constitution and statutes, including the California Emergency Services Act, and in particular, 180
Government Code section 8625, HEREBY PROCLAIM A STATE OF EMERGENCY to exist in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.

IT IS HEREBY ORDERED THAT:

1. All agencies of the state government shall utilize and employ state personnel, equipment, and facilities for the performance of any and all activities consistent with the direction of the Office of Emergency Services and the State Emergency Plan. Also, all residents are to obey the direction of emergency officials with regard to this emergency in order to protect their safety.

2. The Office of Emergency Services shall provide assistance to local governments, if appropriate, under the authority of the California Disaster Assistance Act, Government Code section 8680 et seq., and California Code of Regulations, Title 19, section 2900 et seq.

3. As necessary to assist local governments and for the protection of public health and the environment, state agencies shall enter into contracts to arrange for the procurement of materials, goods, and services necessary to quickly assist with the response to and recovery from the impacts of the early February 2024 storms.

Applicable provisions of the Government Code and the Public Contract Code, including but not limited to travel, advertising, and competitive bidding requirements, are suspended to the extent necessary to address the effects of the early February 2024 storms.

4. Any fairgrounds the Office of Emergency Services determines suitable to assist individuals impacted by the early February 2024 storms shall be made available to the Office of Emergency Services pursuant to the Emergency Services Act, Government Code section 8589. The Office of Emergency Services shall notify the fairgrounds of the intended use and may immediately utilize the fairgrounds without the fairground board of directors' approval.

5. The California National Guard may be mobilized under Military and Veterans Code section 146 to support disaster response and relief efforts, as directed by the Office of Emergency Services, and to coordinate with all relevant state agencies and state and local emergency responders and law enforcement within the impacted areas. Sections 147 and 188 of the Military and Veterans Code are applicable during the period of participation in this mission, exempting the California Military Department from applicable procurement rules for specified emergency
purchases, and those rules are hereby suspended.

6. Any state-owned properties the Office of Emergency Services determines are suitable to address the impacts of the early February 2024 storms shall be made available to the Office of Emergency Services for this purpose in accordance with
Government Code section 8570.

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7. The provisions of Unemployment Insurance Code section 1253 imposing a one-week waiting period for unemployment insurance applicants are suspended as to all applicants who are
unemployed as a direct result of the early February 2024 storms and apply for unemployment insurance benefits during the time period beginning February 4, 2024, and ending on the close of business on August 5, 2024, in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties and who are otherwise eligible for
unemployment insurance benefits.

8. Vehicle Code sections 9265(a), 9867, 14901, 14902, and 15255.2, requiring the imposition of fees, are suspended with regard to any request for replacement of an identification card, driver’s license card, vehicle registration certificate, or certificate of title, or registration stickers, by any individual who lost such records as a result of the early February 2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties. Such records shall be replaced without charge.

9. The provisions of Vehicle Code sections 4602 and 5902, requiring the timely registration or transfer of title are suspended with regard to any registration or transfer of title by any resident of Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties, who is unable to comply with those requirements as a result of the early February 2024 storms. The time covered by this suspension shall not be included in calculating any late penalty pursuant to Vehicle Code section 9554.

10. In order to ensure hospitals, clinics, and other health facilities remain open, the Director of the California Department of Public Health (CDPH) may waive any of the licensing requirements of chapters 1, 2, 8, and 8.5 of division 2 of the Health and Safety Code and accompanying regulations with respect to any
hospital, clinic, other health facility, home health agency, or hospice agency identified in Health and Safety Code sections 1200, 1250, 1727, or 1746 that is impacted by the early February 2024 storms. Any waiver shall include alternative measures that, under the circumstances, will allow the facilities to remain open while protecting public health and safety. Any health facilities or agencies being granted a waiver shall be established and operated in accordance with their disaster and mass casualty plan or emergency preparedness plan. Any waivers granted pursuant to this paragraph shall be posted on the CDPH website and shall be in effect only so long as necessary to address the direct impacts of the early February 2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.

11. In order to directly respond to the needs of impacted adult and senior care facilities, child care facilities, children’s residential facilities, resource family homes, home care organizations, and 182
other similar care facilities and care providers within the State Department of Social Services’ (CDSS) jurisdiction, the Director of CDSS may waive any provisions of the Family Code, Health and Safety Code, or Welfare and Institutions Code, and
accompanying regulations or written directives, with respect to the use, licensing, certification, registration or approval of care providers, facilities or homes within CDSS jurisdiction set forth in the California Community Care Facilities Act (Health and Safety Code section 1500 et seq.), Child Care Provider Registration (Health and Safety Code section 1596.60 et seq.), the California Child Day Care Facilities Act (Health and Safety Code section 1596.70 et seq.), Residential Care Facilities for Persons With Chronic Life-Threatening Illness (Health and Safety Code section 1568.01 et seq.), the California Residential Care Facilities for the Elderly Act (Health and Safety Code section 1569 et seq.), Medical Foster Homes for Veterans (Health and Safety Code section 1568.21 et seq.), Continuing Care Contracts (Health and Safety Code section 1770 et seq.), the Home Care Services Consumer Protection Act (Health and Safety Code section 1796.10 et seq.), and the Resource Family Approval Program (Welfare and Institutions Code section 16519.5 et seq.). Any waivers granted pursuant to this paragraph shall be posted on the CDSS website and shall be in effect only so long as necessary to address the direct impacts the early February 2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.

12. In order to directly respond to the needs of behavioral health programs and facilities impacted by the storm, including alcohol and other drug programs, adult alcoholism or drug abuse recovery or treatment facilities, driving-under-the-influence programs, narcotic treatment programs, psychiatric health facilities, mental health rehabilitation centers, social rehabilitation programs, skilled nursing facilities with special treatment programs, Lanterman-Petris-Short designated facilities, community treatment facilities, short term residential therapeutic programs, and children’s crisis residential programs, the Director of the Department of Health Care Services (DHCS) may waive any licensing, certification, or approval requirements for such programs under its jurisdiction set forth in Welfare and Institutions Code, Divisions 4, 5 and 9 and in Health and Safety Code, Divisions 2 and 10.5 and accompanying regulations, written standards, or information notices. Any waivers granted pursuant to this paragraph shall be posted on the DHCS website and shall be in effect only so long as necessary to address the direct impacts of the early February 2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties.

13. Health and Safety Code sections 103525.5 and 103625, and Penal Code section 14251, requiring the imposition of fees are hereby suspended with regard to any request for copies of certificates of birth, death, marriage, and dissolution of marriage records, by any individual who lost such records as a result of the early February 183
2024 storms in Los Angeles, Orange, Riverside, San Bernardino, San Diego, San Luis Obispo, Santa Barbara, and Ventura Counties. Such copies shall be provided without charge.

14. Drivers may exceed the hours-of-service limits specified in California Vehicle Code section 34501.2 and California Code of Regulations, Title 13, section 1212.5 while operating a vehicle engaged in fuel transportation in support of emergency relief efforts, subject to the following conditions:

a. Motor carriers or drivers currently subject to an out-of-service order are eligible for the exemption once the out-of-service order expires or when they have met the conditions for its rescission.

b. In accordance with Section 1214, Title 13, California Code of Regulations, no motor carrier operating under the terms of this Proclamation will require or allow an ill or fatigued driver to operate a motor vehicle. A driver who notifies a motor vehicle carrier that they need immediate rest shall be given at least ten consecutive hours off-duty before being required to return to service.

c. Drivers shall maintain a driver’s record of duty status, regardless of number of hours worked each day. These records shall be prepared, submitted, and maintained as required by Section 1213, Title 13, California Code of Regulations.

15. Consistent with Parts 390 and 395, Title 49, Code of Federal Regulations, drivers may exceed the hours-of-service limits specified while operating a vehicle engaged in fuel
transportation in support of emergency relief efforts. These waivers shall be in effect only for the duration of the driver’s direct assistance in providing emergency relief, or thirty (30) days from the date of this Proclamation, whichever is less.

16. In order to allow out-of-state contractors and other utilities driving their own vehicles to provide mutual aid assistance for the restoration of electrical power within the counties impacted by storm, applicable provisions of the Vehicle Code including, but not limited to, Vehicle Code section 34620 requiring a motor carrier permit [licensing] and imposition of certain fees, are suspended for motor carriers providing such assistance. Also, the requirements for motor carriers and drivers in Vehicle Code sections 1808.1 [pull-notice program that checks for driver's license violations], 27900 [display name on vehicle], 27901 [size and color of display name on vehicle], 34505.5 [requirement to have been inspected within 90 days], and 34501.12 [requirement to set up home base in California] are suspended while providing mutual aid assistance for the emergency restoration of services.

I FURTHER DIRECT that as soon as hereafter possible, this Proclamation be filed in the Office of the Secretary of State and that widespread publicity and notice be given of this Proclamation.
184

This Proclamation is not intended to, and does not, create any rights or benefits, substantive, or procedural, enforceable at law or in equity, against the State of California, its agencies, departments, entities, officers, employees, or any other person.

IN WITNESS WHEREOF I have
hereunto set my hand and caused
the Great Seal of the State of
California to be affixed this 4th day
of February 2024.

_________________________

GAVIN NEWSOM
Governor of California

ATTEST:

_____________________________
SHIRLEY N. WEBER, PH. D
Secretary of State

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SAN BERNARDINO COUNTY

STATE OF CALIFORNIA

PROCLAMATION OF EXISTENCE OF A LOCAL EMERGENCY
(By Director of Emergency Services)

WHEREAS, California Government Code section 8630 and San Bernardino County Code section

21.0101 et seq. empower the Chief Executive Officer to proclaim the existence or threatened existence of a local emergency when San Bernardino County is affected or likely to be affected by a public calamity and the Board of Supervisors is not in session; and

WHEREAS, the Chief Executive Officer of San Bernardino County does hereby find:

WHEREAS, the National Weather Service issued an extreme weather warning on February 4, 2024, warning conditions of damage and extreme peril to the s afety and persons and property within San Bernardino County; and

WHEREAS, the National W eather Service issued a series of Flood Watches on February 2, 2024, warning of potential significant flooding between February 4, 2024 and February 7, 2024; and

WHEREAS, the National Weather Service issued a series of Winter Storm Warning on Fe bruary 2, 2024, warning of si gnificant impact to San Bernardino C ounty between February 4, 2024 and February 7, 2024; and

WHEREAS, burn scars from the Apple and El Dorado fires create conditions of dangerous and potentially catastrophic flooding, mudslides, and debris flows; and

WHEREAS, damaged and closed roads will create an economic burden to affected communities that rely on vehicular tourist traffic;

WHEREAS, damage may continue due to ongoing weather activity including snow, rain, mudslides, debris runoff, and flooding; and

WHEREAS, the Board of Supervisors of the County of San Bernardino is not in session and cannot immediately be called into session;

NOW, THEREFORE, IT IS HEREBY PROCLAIMED that a local emergency exist s throughout said County; and

IT IS FURTHER PROCLAIMED AND ORDERED that as of this date all County departments and agencies take those actions, measures and s teps deemed necessary to assure the safety and welfare of San Bernardino County residents and property, including requesting mutual aid to the extent such aid is necessary and during the existence of said local emergency the powers and duties of the emergency organization of the County shall be those prescribed by State law, by charter, ordinances, and resolutions of this County, and by the current San Bernardino County Emergency Plan, as approved by the Board of Supervisors.

IT IS FURTHER PROCLAIMED AND ORDERED that this local emergency be ratified by the County Board of Supervisors in accordance with section 8630 of the California Government Code.

IT IS FURTHER PROCLAIMED AND ORDERED that said local emergency shall be deemed to continue to exist until its termination is proclaimed by the Board of Supervisors or it is terminated by operation of law.

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IT IS FURTHER PROCLAIMED AND ORDERED that a copy of this proclamation be forwarded to the Governor of California.

IT IS FURTHER PROCLAIMED AND ORDERED that t he San Bernardino County Director of Emergency Services and the County Chief Executive Off icer shall be entitled to sign and transmit an electronic signature of this Proclamation (whether by facsimile, PDF or other mail transmissio n), which signature shall be binding on the party whose name is contained therein.

IT IS FURTHER ORDERED that a copy of this proclamation be forwarded to the Director of the California Governor’s Office of Emergency Services.

Dated: ____________________

Time of Signing: __________________

_____________________________________
Luther Snoke
Director of Emergency Services,
San Bernardino County

February 4, 2024
8:29 p.m.
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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2760 Agenda Date: 2/13/2024
Agenda #: A. Category: Public Hearing
FROM:

Planning Department
SUBJECT:

Master Case No. 19-090-R1 and Appeal No. 23-018: Appeal of the Planning Commission’sdecision to deny Conditional Use Permit No. 19-032-R1, a request to modify the existing conditions of approval of previously approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for an existing convenience store, the Marelias Liquor and Market, located at 8145 Cypress Avenue (APN:0191-091-22).

RECOMMENDATION:

Based on the information in the staff report and subject to the attached Findings, staff recommends that the City Council:

1. Deny Appeal No. 23-018 and uphold the Planning Commission’sdecision to deny Conditional Use Permit No. 19-032-R1, a request to modify the conditions of approval for existing approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for Marelias Liquor and Market, an existing liquor store located at 8145 Cypress Avenue.

APPELLANT/APPLICANT FOR APPEAL:

Firas Farraj
8145 Cypress Avenue
Fontana, CA 92335
LOCATION:
8145 Cypress Avenue, Suite A (APN: 0191-091-22), Southeast corner of Cypress Avenue and Foothill Boulevard.

REQUEST:

A request that the City Council overturn a decision of the Planning Commission to deny Conditional Use Permit No. 19-032-R1, a request to modify the existing conditions of approval of previously approved CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and beer/malt beverages in single size containers of 40 ounces or less for an existing convenience store, the Marelias Liquor and Market, located at 8145 Cypress Avenue (APN:0191-091-22).

BACKGROUND:

The first Conditional Use Permit at this location was approved by the Planning Commission on July City of Fontana Printed on 2/6/2024Page 1 of 5
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The first Conditional Use Permit at this location was approved by the Planning Commission on July 11, 1997, with approval of CUP 97-020 for a Type 21 (Off-Sale General) ABC liquor license for a market (Stop N Shop Liquor). On February 8, 2018, the Department of Alcoholic Beverage Control revoked the Type 21 ABC license (the license was under a different operator), due to violations of the conditions of approval including the resale of stolen merchandise purchased from undercover agents.

The ABC license was revoked with the condition that no ABC license could operate from the location for one year. On November 19, 2019, the Planning Commission approved CUP No 19-090, for a Type 21 (Off-Sale General) ABC liquor license for a new owner for the market; that approval included a prohibition on the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less. The Police Department was not opposed to granting this use permit as conditioned.

On January 23, 2023, the City issued a new business license for a new owner of the Marelias Market and Liquor convenience store. Subsequently, on August 21, 2023, the new owner submitted an application (CUP19-032-R1) to modify the conditions of approval of the existing Conditional Use Permit to allow the sale of small single alcoholic products.

On December 5, 2023, the Planning Commission held a noticed public hearing on the above- referenced application. After the information was presented and considered, the Planning Commission denied Conditional Use Permit No. 19-032-R1 (Attachment No. 3), a request to modify the Conditions of Approval, Condition No. 21 through 23 for a previously approved Conditional Use Permit (CUP No.19-090) in order to allow the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less associated with the existing ABC License Type 21 (Off-Sale General). Subsequent to the Planning Commission’s decision, staff received one (1) appeal application. The appeal letter request, dated December 15, 2023, is attached for the City’s Council’s consideration (Attachment No. 1).

PROJECT DESCRIPTION:

Land Use Designation:

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ANALYSIS:

Appeal No. (APL) 23-018:

The Applicant, Firas Farraj, is requesting that the City Council review Appeal No. 23-018, an appeal of Planning Commission’s decision denying a modification to Conditional Use Permit CUP No. 19- 032-R1 to allow the sale of smaller single sized alcoholic beverages. Specifically, the conditional use permit application requests the modification of Conditions of Approval No. 21, 22, & 23 of CUP No. 19-032; and allow the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less. The Applicant’s letter of request is attached for City Council’s consideration (Attachment 1).

The market is a neighborhood market which has been operating since approximately 1997; Mr. Farraj purchased the business in early 2023.The project site is in an existing 9,522 square foot multi-tenant building that has several other tenants. The existing convenience store suite is approximately 2,100 square feet. The other sites are occupied by various types of commercial businesses including a bakery, café, nail salon, barber shop, beauty supply and insurance businesses. The hours of operation for the market and liquor store are from Monday through Thursday 8:30 am to 9:30 pm and Friday through Sunday, 8:30 am to 11:00 pm. According to the floor plan, beer is currently stored in the refrigerated section and distilled spirits are currently stored behind the front counter in the restricted staff area accessible by employees only.

The Police Department noted that between January 1, 2022, through June 10, 2023, there were a total of fourteen (14) calls for service specifically for the existing market and liquor business. Police Department further clarified that the fourteen (14) calls for service were disturbance calls regarding graffiti and one subject disturbance call. Staff is not in support of the requested modification to allow the sale of smaller single alcoholic beverages based on concerns related to public health and safety.

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Typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed.

This frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors.

Further, by restricting the single sale of alcoholic beverages, minors and transients are discouraged from purchasing, as these are typically priced lower and more affordable.

The Planning Commission determined that the proposed request (Conditional Use Permit No. 19-032 -R1) to modify Conditional Use Permit (CUP) No. 19-032 to allow the sale of smaller single sized alcoholic beverages, did not meet the City’s required findings as outlined in the Fontana Zoning and Development Code (Attachment No. 3).

Findings for Denial for Conditional Use Permit No. 19-032-R1:

Finding No. 1: That the proposed use is allowed within the applicable zoning district and complies with all other applicable provisions of the Zoning and Development Code, Municipal Code, General Plan, any applicable Specific Plan or Area Plan, and City regulations/standards.

The City’s Zoning and Development Code requires a Conditional Use Permit for any new or modified ABC licenses. Planning Commission approval of a Conditional Use Permit may include such conditions of approval as are deemed necessary to enable the Planning Commission to make the required findings. The existing off-sale liquor and market establishment is located at 8145 Foothill Boulevard, Suite A on the southeast corner of Foothill Boulevard and Cypress Avenue. The General Plan designation is Walkable Mixed-Use Corridor (WMXU-1) and the property is located within the Form Based Code (FBC) Downtown Gateway subdistrict which allows for off-sale establishments with the approval of a Conditional Use Permit. This establishment has a conditional use permit to sell alcoholic beverages (Type 21 ABC license, Off-sale General) that was approved on November 19, 2019 by the Planning Commission; this Conditional Use Permit included three conditions (Condition No. 21 through 23) stating that alcoholic beverage containers cannot be sold that are single size, smaller than 375 ml or 40 ounces. With adherence to conditions of approval established by the Planning Commission, the use is consistent with Zoning and Development Code requirements.

Finding No. 2: The site is physically suited for the type, density, and intensity of the proposed use including access, utilities, and the absence of physical constraints and can be conditioned to meet all related performance criteria and development standards.

The Applicant is requesting to modify the ABC conditions of approval from a previously approved project (CUP No. 19-032) to allow the sale of single alcoholic beverages of wine and distilled spirits less than 375ml and beer/malt beverages less than 40 oz. The site is physically suited for the type, density, and intensity of the proposed use. The site was previously approved for a Conditional Use Permit to operate and sell alcoholic beverages with an ABC Type 21 (Off-sale, General) license.

There are no proposed modifications to the site or structure. The physical characteristics of the site are sufficient to accommodate the business including access and utilities.

Finding No. 3: Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, or materially injurious to persons, property, or improvements in City of Fontana Printed on 2/6/2024Page 4 of 5
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the vicinity in which the project is located.

Conditional Use Permit No. 19-032- R1, as denied on August 23, 2023, does not meet the mandatory CUP findings required pursuant to Section 30-169 findings for denial. Concerns regarding the potential detrimental impacts to the public interest, health, safety, and welfare include that typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed which frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors. Further, by restricting the single sale of alcoholic beverages, minors and transients are discouraged from purchasing, as these are typically priced lower and more affordable.

Environmental:

This project as proposed qualifies for a categorical exemption pursuant to Section No. 15301 (Class No. 1, Existing Facilities) of the California Environmental Quality Act (CEQA), and Section No. 3.22 (Categorical Exemption) of the Local 2019 Guidelines for Implementing the California Environmental Quality Act. The project proposal is to modify the conditional use permit approval to allow the sale smaller single sized alcoholic beverages within an existing building, there are no changes or expansions to the building as part of this application.

FISCAL IMPACT:

None
MOTION:

Approve staff recommendation.

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ATTACHMENT NO. 2

VICINITY MAP
DATE: February 13, 2024

CASE: Master Case No. 19-090-R1

Appeal No. 23-018

NORTH

CITY OF FONTANA PLANNING DEPARTMENT

CIT
195
City of Fontana
Action Report
Planning Commission
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2613 Agenda Date: 12/5/2023
Agenda #: PH-B Category: Public Hearing
FROM:

Planning Department
TITLE:

Master Case No. (MCN) 23-086 and Conditional Use Permit No. CUP23-023 (See also Master Case No. (MCN) 19-090-R1 and Conditional Use Permit (CUP) No. 19-032-R1)- A request to modify conditions of approval for an Alcoholic Beverage Control (ABC) license to allow the sale of distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less for the existing Marelias Market and Liquor convenient store, pursuant to CEQA Guidelines Section No. 15301 (Existing Facilities).

RECOMMENDATION:

Based on the information in this staff report, and providing the Planning Commission makes the required findings, staff recommends that the Planning Commission:

1. Determine that the project is categorically exempt pursuant to Section No. 15301 (Class No. 1, Existing Facilities), and Section No. 3.22 (Categorical Exemption) of the Local 2019 Guidelines for Implementing the CEQA, and direct staff to file a notice of Exemption; and,

2. Deny Conditional Use Permit No. 19-032-R1 subject to the attached findings.

APPLICANT:

Firas Farraj
8145 Cypress Avenue
Fontana, CA 92335
LOCATION:
8145 Cypress Avenue, Suite A (APN: 0191-091-22), Southeast corner of Cypress Avenue and Foothill Boulevard.

REQUEST:

Conditional Use Permit (CUP) No. 19-032-R-1 - A request to modify the Conditions of Approval, Condition No. 21 through 23 for a previously approved Conditional Use Permit (CUP No.19-090) and allow sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less associated with the existing ABC License Type 21 (Off-Sale General)
PROJECT PLANNER:

Mai Thao, Assistant Planner
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File #: 21-2613 Agenda Date: 12/5/2023
Agenda #: PH-B Category: Public Hearing
BACKGROUND INFORMATION:

Land Use Table:

Previous Approvals:

The first Conditional Use Permit at this location was approved by the Planning Commission on July 11, 1997 with approval of CUP 97-020 for a Type 21 (Off-Sale General) ABC liquor license for a market (Stop N Shop Liquor). On February 08, 2018, the Department of Alcoholic Beverage Control revoked the Type 21 ABC license (the license was under a different operator), due to violations of the conditions of approval including the resale of stolen merchandise purchased from undercover agents.

The ABC license was revoked with the condition that no ABC license could operate from the location for one year. On November 19, 2019, the Planning Commission approved CUP No 19-090, for a Type 21 (Off-Sale General) ABC liquor license for a new owner for the market. The Police Department was not opposed to granting this use permit.

On January 23, 2023, the City issued a new business license for a new owner of the Marelias Market and Liquor convenience store. Subsequently, on August 21, 2023, the new owner submitted an application to modify the conditions of approval of the existing Conditional Use Permit to allow the sale of small single alcoholic products.

PROJECT DESCRIPTION:

Census Tract No. 28.03:

The market/liquor store is located within Census Tract No. 28.03. A map identifying the census tract boundaries is attached (Attachment No. 3).

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File #: 21-2613 Agenda Date: 12/5/2023
Agenda #: PH-B Category: Public Hearing
Concentration:

According to the California Department of Alcoholic Beverage Control (ABC), two (2) off-sale licenses are allowed within Census Tract 28.03 before being considered over-concentrated. Currently, there are four (4) active licenses operating within Census Tract No. 28.03. Consequently, the California Department of Alcoholic Beverage Control (ABC) considers this tract over-concentrated for off-sales licenses. The applicant has an approved ABC license which is part of the four (4) licenses that are mentioned above. The project proposes the modification of existing Conditions of Approval, specifically Condition No. 21 through 23 of a previously approved Conditional Use Permit (CUP No.19-090) which prohibits the sale of sales of single distilled spirits smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less.

Findings of Convenience and Necessity:

A Finding of Convenience and Necessity was made by the Planning Commission through the adopted resolution (Reso No. 2019-067) under Conditional Use Permit (CUP) No. 19-090 (Attachment No. 8). The finding was based on Census Tract No. 28.03, a centrally located tract, stretching from Foothill Boulevard south to Arrow Boulevard, and from Citrus Avenue to Juniper Avenue. At that time there were three (3) establishments with an ABC License and there were no issues identified with granting the CUP subject to the adopted conditions of approval.

Building Analysis
The existing Marelias Market and Liquor store is in a 2,100 square foot suite that is part of an existing 9,522 square foot commercial multi-tenant building on a lot that is approximately 0.79 adjusted gross acres. The building on the project site was constructed in 1990 and was annexed into the City on June 25, 1952.

Previous Approved CUP No. 19-090:

The Conditions of Approval from CUP No. 19-090 (Attachment No. 8) disallowed the sale of smaller packaged alcohol beverages. Historically, the Planning Commission and City staff have approved conditional use permits and minor use permits with Conditions No. 21 through 23 incorporated within the various projects.

ANALYSIS:

The Applicant is requesting that the Planning Commission review and approve a modification to Conditional Use Permit CUP No. 19-032-R1 to allow the sale of smaller single sized alcoholic beverages. Specifically, the conditional use permit requests the modification of Conditions of Approval No. 21, 22, & 23 of CUP No. 19-032; and allow the sale of single distilled spirits and wine smaller than 375ml and the sale of beer/malt beverages in single size containers of 40 oz. or less.

The Applicant’sletter of request is attached for Commission review (Attachment 6). The market is a neighborhood market which has been operating since approximately 1997; Mr. Farraj purchased the business in early 2023.

The project site is in an existing 9,522 square foot multi-tenant building that has several tenant sites.

The market & liquor business suite is approximately 2,100 square feet. The other sites are being City of Fontana Printed on 11/29/2023Page 3 of 4
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File #: 21-2613 Agenda Date: 12/5/2023
Agenda #: PH-B Category: Public Hearing
The market & liquor business suite is approximately 2,100 square feet. The other sites are being occupied by various types of retail businesses including a bakery, café, nail salon, barber shop, beauty supply and insurance businesses. The hours of operation for the market and liquor store are from Monday through Thursday 8:30 am to 9:30 pm; and Friday through Sunday, 8:30 am to 11:00 pm. According to the floor plan, beer is currently stored in the refrigerated section and distilled spirits are currently stored behind the front counter in the restricted staff area accessible by employees only.

Police Department noted that between January 1, 2022, through June 10, 2023, there were a total of fourteen (14) calls for service specifically for the existing market and liquor business. Police Department further clarified that the fourteen (14) calls for service were disturbance calls regarding graffiti and one subject disturbance call. The Police Department is not in support of the requested modification to allow the sale of smaller single alcoholic beverages based on concerns related to public health and safety. Typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed. This frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors. Further, by restricting the single sale of alcoholic beverages, minors and transients are discouraged from purchasing, as these are typically priced lower and more affordable.

Staff is recommending that the Planning Commission deny the applicant's request based on the findings contained in the attached Planning Commission resolution.

Environmental:

This project as proposed qualifies for a categorical exemption pursuant to Section No. 15301 (Class No. 1, Existing Facilities) of the California Environmental Quality Act (CEQA), and Section No. 3.22 (Categorical Exemption) of the Local 2019 Guidelines for Implementing the California Environmental Quality Act. The project proposal is to modify the conditional use permit approval to allow the sale smaller single sized alcoholic beverages within an existing building, there are no changes or expansions to the building as part of this application.

MOTION:

Approve staff’s recommendation.

ATTACHMENTS:

Attachment No. 1 - Vicinity Map
Attachment No. 2 - Floor Plan
Attachment No. 3 - Census Tract Map No. 28.03
Attachment No. 4 - Matrix of Off-Sale Establishments
Attachment No. 5 - Resolution and Findings
Attachment No. 6 - Letter of Request from Applicant
Attachment No. 7 - Police Department Memo
Attachment No. 8 - Previously Approved PC Report (MCN No. 19-090) Attachment No. 9 - Public Hearing Notice
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ATTACHMENT NO. 1

VICINITY MAP
DATE: December 5, 2023

CASE: Master Case No. 23-086

Conditional Use Permit No. 23-023

NORTH

CITY OF FONTANA PLANNING DEPARTMENT

CIT
5200
6201
ATTACHMENT NO. 3

CENSUS TRACT

28.03 DATE: December 5, 2023

CASE: Master Case No. 23-086

Conditional Use Permit No. 23-023

NORTH

CITY OF FONTANA PLANNING DEPARTMENT

CIT
7202

ATTACHMENT NO. 4

CENSUS TRACT

28.03 DATE: December 5, 2023

CASE: Master Case No. 23-086

Conditional Use Permit No. 23-023

ABC Off-Sale Licensed Establishments

Business Name Address License Type CUP
Arrow Mini Market 16312 Arrow Road, Suite A 21 Yes
J&Sandeep 16119 Foothill Boulevard,
Suite A
21 Yes
Simers Market 16146 Arrow Boulevard 20 Yes
Marelias Market &
Liquor
8145 Foothill Boulevard,
Suite A
21 Yes

Totals: Current Allowed
Off-Sale: 4 Active 2

CITY OF FONTANA PLANNING DEPARTMENT

CIT
8203

ATTACHMENT NO. 5
RESOLUTION PC NO. 2023-______

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY

OF FONTANA DENYING A REQUEST TO MODIFY THE

CONDITIONS OF APPROVAL FOR CONDITIONAL USE PERMIT
NO. 19-032-R1 TO ALLOW THE SALE OF SINGLE ALCOHOLIC

BEVERAGES OF WINE AND DISTILLED SPIRITS LESS THAN
375 MILLILITERS AND THE SALE OF BEER/ MALT
BEVERAGES IN SINGLE SIZE CONTAINERS OF 40 OUNCES OR
LESS AT THE LOCATION OF 8145 CYPRESS AVENUE, SUITE A
(APN: 0191 -091-22), PURSUANT TO A CATEGORICAL

EXEMPTION IN ACCORDANCE WITH CEQA GUIDELINES
SECTION 15301.

WHEREAS, assessor parcel number 0191-091-22 was incorporated as part of the original City of Fontana in 1952; and

WHEREAS, on July 11, 1997, the City of Fontana Planning Commission (“Planning Commission”) approved an application for Conditional Use Permit No. 97-020 for a Type 21 (Off-Sale General) Alcoholic Beverage Control (“ABC”) license for the Stop N Shop market located at 8145 Cypress Avenue (“Subject Property”) subject to specific conditions imposed by the City and the Department of Alcoholic Beverage Control.

WHEREAS, on February 8, 2018, the Department of Alcoholic Beverage Control revoked the Type 21 ABC license for the Subject Property due to certain violations of the COA and prohibited the issuance of any ABC license thereafter for one year ; and

WHEREAS, on November 19, 2019, the Planning Commission approved an application for Conditional Use Permit No. 19-090 for a Type 21 (Off-Sale General) ABC license for the Alpine Liquor and Market located at the Subject Property subject to specific conditions (“Conditions of Approval” or “COA”) imposed by the City and the Department of Alcoholic Beverage Control that included, amongst other items, a prohibition against the sale of single alcoholic beverages of wine and distilled spirits and the sale of beer/malt beverages in single size containers; and

WHEREAS, on January 23, 2023, the Administrative Se rvices issued a new business license for Marelias Market and Liquor convenience store; and

WHEREAS, on August 21, 2023, City received an application from Firas Farraj (“Applicant”), for Conditional Use Permit No. 19-032-R1(“CUP No. 19-032-R1”) to modify the conditions of approval for Conditional Use Permit No.19-090 to allow the sale of single alcoholic beverages of wine and distilled spirits less than 375 milliliters and the sale of beer/malt beverages in single size containers of 40 ounces or less for Marelias Market and Liquor Store at 8145 Cypress Avenue, Suite A; and

WHEREAS, the Subject Property i s located within the Form Based Code (FBC) 9204

ATTACHMENT NO. 5
Downtown Gateway and has a General Plan Land Use designation of Walkable Mixed - Use Corridor (WMXU-1); and

WHEREAS, the 2,100 square foot market is within the established Cypress Center shopping center; and

WHEREAS, the project is Categorically Exempt pursuant to Section No. 15301 (Class 1, Existing Facilities) of the California Environmental Quality Act and Section No.

3.22 (Categorical Exemption) of the 2019 Local Guidelines for Implementing the California Environmental Quality Act; and

WHEREAS, the City wishes to protect and preserve the quality of life throughout the City through effective land use planning; and

WHEREAS, a notice of the public hearing was published in the local The Sun newspaper on November 24, 2023, posted at City Hall and onsite at the project site; and

WHEREAS, the owners of property within 660 feet of the project site were notified via public hearing notice mailer prior to the public hearing; and

WHEREAS, on December 5, 2023, a duly noticed public hearing on CUP No. 19- 032-R1 was held by the Planning Commission to consider testimony and evidence presented by the Applicant, City staff, and other interested parties; and

WHEREAS, on December 5, 2023 the Planning Commission carefully considered all information, evidence, and testimony presented at its public hearing on for CUP No. 19-032-R1; and

WHEREAS, all other legal prerequisites to the adoption of this r esolution have occurred.

NOW, THEREFORE, the Planning Commission RESOLVES as follows:

SECTION 1. Recitals: The above recitals are true, correct and incorporated herein by reference.

SECTION 2. CEQA. The Planning Commission hereby determines that the project is categorically exempt pursuant to Section No. 15301 (Existing Facilities) of the California Environmental Quality Act and Section No. 3.22 (Categorical Exemption) of the 2019 Local Guidelines for Implementing the California Environmental Quality Act (CEQA).

SECTION 3. CUP Findings. The Planning Commission hereby makes the following findings for CUP No. 19-032-R1 in accordance with Section 30-169 “Findings for approval of conditional use permits modifications” of the Fontana Zoning and Development Code:

Finding No. 1 That the proposed use is allowed within the app licable 10205

ATTACHMENT NO. 5
zoning district and complies with all other applicable provisions of the Zoning and Development Code,
Municipal Code, General Plan, any applicable Specific
Plan or Area Plan, and City regulations/standards.

Finding of Fact: The City ’s Zoning and Development Code requires a Conditional Use Permit for any new or modified ABC licenses.

Planning Commission approval of a Condition al Use Permit may include such conditions of approval as are deemed
necessary to enable the Planning C ommission to make the required findings . The existing off -sale liquor and market establishment is located at 8145 Foothill Boulevard, Suite A on the southeast corner of Foothill Boulevard and Cypress Avenue. The General Plan designation is Walkable Mixed - Use Corridor (WMXU-1) and the property is located within the Form Based Code (FBC) Downtown Gateway subdistrict
which allows for off-sale establishments with the approval of a Conditional Use Permit. This establishment has a
conditional use permit to sell a lcoholic beverages (Type 21 ABC license, Off -sale General) that was approved on
November 19, 2019 by the Planning Commission ; this
Conditional Use Permit included three conditions (Condition No. 21 through 23) stating that alcoholic beverage containers cannot be sold that are single size, smaller than 375 ml or 40 ounces. With adherence to conditions of approval established by the Planning Commission, the use is consistent with
Zoning and Development Code requirements.

Finding No. 2: The site is physicall y suited for the type, density, and intensity of the proposed use including access, utilities, and the absence of physical constraints and can be
conditioned to meet all related performance criteria and development standards .

The Applicant is requesting t o modify the ABC conditions of approval from a previously approved project (CUP No. 19 - 032) to allow the sale of single alcoholic beverages of wine and distilled spirits less than 375ml and beer/malt beverages less than 40 oz. The site is physically suited for the type, density, and intensity of the proposed use. The site was previously approved for a Conditional Use Permit to operate and sell alcoholic beverages with an ABC Type 21 (Off -sale, General) license. There are no proposed modifications to the site or structure. The physical characteristics of the site are sufficient to accommodate the business including access and utilities.
11206

ATTACHMENT NO. 5

Finding No. 3: Granting the permit would not be detrimental to the public interest, health, safety, convenience, welfare, o r materially injurious to persons, property, or
improvements in the vicinity in which the project is
located.

The City’s police department has indicated concerns with the modification and the associated potential for negative impacts on the public health, safety, and welfare as well as concerns with potential injury to persons, property, and improvements .

Typical single serve alcoholic beverages are often offered for sale cold and ready to be consumed. This frequently leads to public intoxication, littering, panhandling, and other disruptive behaviors. By restricting the single sale of alcoholic
beverages, minors and transients are discouraged from
purchasing as these are typically pric ed lower and more affordable. Planning Commission finds that the requested modification to conditions of approval could be detrimental to the public interest, health and safety or materially injurious to persons or property in the vicinity in which the pro ject is located.

SECTION 4. Denial: Based on the foregoing, the Planning Commission hereby denies Conditional Use Permit No. 19-032-R1.

SECTION 5. Resolution Regarding Custodian of Record: The documents and materials that constitute the record of proceedings on which this Resolution has been based are located at the Planning Department, 8353 Sierra Avenue, Fontana, CA 92335.

This information is provided in compliance with Public Resources Code section 21081.6.

SECTION 6. Certification. The Secretary of the Planning Commission shall certify to the adoption of this Resolution.

SECTION 7. Effective Date. This Resolution shall become effective immediately upon its adoption.

SECTION 8. Severability. If any provision of this Resolution 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 Resolution that can be given effect without the invalid provision or application.

PASSED, APPROVED AND ADOPTED by the Planning Commission of the City of Fontana, California, at a regular meeting held on this 5th day of December 2023. 12207

ATTACHMENT NO. 5

City of Fontana

___________________________
Cathline Fort, Chairperson

ATTEST:

I, Ralph Thrasher, Secretary of the Planning Commission of the City of Fontana, California, do hereby certify that the foregoing resolution was duly and regularly adopted by the Planning Commission at a regular meeting thereof, held on this 5th day of December 2023, by the following vote, to-wit:

AYES:

NOES:

ABSENT:

ABSTAIN:

___________________________
Ralph Thrasher, Secretary

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CITY OF FONTANA

POLICE DEPARTMENT
Community Outreach & Public Engagement Unit

MEMORANDUM

TO: Mai Thao, Assistant Planner

FROM: Heather Howard, Community Policing Technician

DATE: September 13, 2023

SUBJECT: Police Recommendations for Amendment to Single Sales Condition – Marelia’s Liquor and Market 8145 Cypress Ave. Suite A

The Police Department has reviewed the request to amend California Department of Alcoholic Beverage Control (ABC) Type 21 (Off-sale General) license, to amend condition of single sales. The police department does not support the amendment to the condition for single sales. All Type 21 (Off- sale General) licenses in the City of Fonta na are subject to the same condition for single sales. Licensee may contact me if further clarification is needed.

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NOTICE PUBLIC HEARING

Si desea información en Español referente a esta notificación o proyecto, favor de comunicarse al (909) 350-6728.

In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons wi th a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE PLANNING COMMISSION OF THE CITY OF FONTANA FOR THE FOLLOWING:

Master Case (MCN) No. 23 -086 and Conditional Use Permit (CUP) No. 23-023: The applicant, Firas Farraj, is requesting that the Planning Commission review and approve Conditional Use Permit No. 23-023 for the modification to an existing condition of approval (CUP No. 19 -032) to allow the sale of single s smaller than 375 milliliters and the sale of beer/malt beverages in single size containers of 40 ounces or less located at 8145 Cypress Avenue for an existing convenience store, Marelias Liquor and Market (APN:0191-091-22).

Environmental
Determination:

The California Environmental Quality Act
(CEQA) per Section No. 15270 (Projects
Which are Disapproved) does not apply to
projects which the public agency rejects or
disapproves and per Section No. 3.06
(Disapproved Projects) of the 2019 Local
Guidelines for Implementing CEQA.

Location of
Property:
8145 Cypress Avenue
APN: 0191-091-22
Date of
Hearing:

December 5, 2023
Place of
Hearing:

City Hall Council Chambers
8353 Sierra Avenue
Fontana, CA 92335

Time of
Hearing:
6:00 pm

Should you have any questions concerning this project, please contact Mai Thao , Assistant Planner , at (909) 350-6650 or by email at [email protected].

ATTACHMENT NO. 9
37232

ANY INTERESTED PARTY MAY PROVIDE INFORMATION BY LETTER OR EMAIL WHICH MAY BE OF ASSISTANCE TO THE PLANNING COMMISSION. A COPY OF THE APPLICATION AND

ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION AT THE PLANNING DEPARTMENT, CITY HALL. PLEASE CONTACT THE PLANNER LISTED ABOVE.

IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU

MAY BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE

PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.

Published: November 24, 2023

38233

NOTICE PUBLIC HEARING

Si desea información en Español referente a esta notificación o proyecto, favor de comunicarse al (909) 350-6728.

In compliance with Section 202 of the Americans with Disabilities Act of 1990 (42 U.S.C. Sec. 12132) and the federal rules and regulations adopted in implementation thereof, the Agenda will be made available in appropriate alternative formats to persons wi th a disability. Should you need special assistance to participate in this meeting, please contact the City Clerk’s Department by calling (909) 350-7602. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to ensure accessibility to this meeting.

A PUBLIC HEARING HAS BEEN SCHEDULED BEFORE THE CITY COUNCIL OF THE CITY OF FONTANA FOR THE FOLLOWING:

Master Case No. (MCN) 19-090-R1 and Appeal No. (APL) 23-018: Review of an appeal to overturn the Planning Commission’s decision on December 5, 2023 denying Conditional Use Permit No. 19- 032-R1, a request to modify the existing conditions of approval for CUP No. 19-032 in order to allow the sale of single alcoholic beverages of wine and distilled spirits smaller than 375 milliliters and the sale of beer/malt beverages in single size containers of 40 ounces or less , for an existing convenience store, Marelias Liquor and Market , located at 8145 Cypress Avenue (APN:0191-091- 22).

Environmental
Determination:

This project qualifies for a categorical
exemption pursuant to Section No. 15301
(Existing Facilities) of the California
Environmental Quality Act and Section No.

3.22 (Categorical Exemption) of the 2019
Local Guidelines for Implementing CEQA.

Location of
Property:
8145 Cypress Avenue, Suite A
APN: 0191-091-22
Date of
Hearing:

February 13, 2024
Place of
Hearing:

City Hall Council Chambers
8353 Sierra Avenue
Fontana, CA 92335

Time of
Hearing:
2:00 P.M.

Should you have any questions concerning this project, please contact Mai Thao , Assistant Planner , at (909) 350-6650 or by email at [email protected].

ATTACHMENT NO. 4
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ANY INTERESTED PARTY MAY APPEAR AND PRESENT ANY INFORMATION BY LETTER OR EMAIL WHICH MAY BE OF ASSISTANCE TO THE CITY COUNCIL. A COPY OF THE APPLICATION AND ENVIRONMENTAL DOCUMENTATION IS AVAILABLE FOR INSPECTION. PLEASE CONTACT THE PLANNER LISTED ABOVE.

IF YOU CHALLENGE IN COURT ANY ACTION TAKEN CONCERNING A PUBLIC HEARING ITEM, YOU

MAY BE LIMITED TO RAISING ONLY THOSE ISSUES YOU OR SOMEONE ELSE RAISED AT THE

PUBLIC HEARING DESCRIBED IN THIS NOTICE, OR IN WRITTEN CORRESPONDENCE TO THE CITY AT, OR PRIOR TO, THE PUBLIC HEARING.

Published: February 2, 2024

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City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2799 Agenda Date: 2/13/2024
Agenda #: A. Category: Elected Officials
Communications/Reports
Appointments to Local Agency / Regional Boards
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
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