Fontana City Council
April 9, 2024

ATTACHMENT NO. 9

ORDINANCE NO.______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA APPROVING , PURSUANT TO AN ADOPTED

MITIGATED NEGATIVE DECLARATION , A
DEVELOPMENT AGREEMENT NO. 23-001 BETWEEN THE

CITY OF FONTANA AND CHASE PARTNERS , WHICH

PROVIDES A PUBLIC BENEFIT FEE IN THE AMOUNT OF
$150,896.25

WHEREAS, the City Council ("City Council") of the City of Fontana ("City") is authorized by California Government Code sections 65864 et seq. and section 30-322 of the City's Development Code ("Development Code") to enter into an agreement for the development of real property with any person having a legal or equitable interest in such property in order to establish certain development rights in such property; and

WHEREAS, City has found that development agreements will strengthen the public planning process, encourage private participation in comprehensive planning by providing a greater degree of certainty in that process, reduce the economic costs of development, allow for the orderly planning of public improvements and services, allocate costs to achieve maximum utilization of public and private resources in the development process, and ensure that appropriate measures to enhance and protect the environment are achieved; and

WHEREAS, because of the logistics, magnitude of the expenditure, and considerable lead time required to plan and develop the Property, Chase Partners (“Developer”) has proposed to enter into a certain development agreement (“AGR No. 23-001” or “Development Agreement”), attached hereto as “Exhibit A” and incorporated herein by reference , concerning the real property located on the east side of Juniper Avenue, south of Santa Ana Avenue, more specifically Assessor Parcel Numbers 0255- 101-24 and -30 (“Property”), 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 Developm ent Agreement AGR No.23-001, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and

WHEREAS, City and Developer are supportive of entering into a development agreement whereby Developer will acquire fee title to the Property; and

WHEREAS, Developer's interest in the Property, including that interest to be conveyed pursuant to the Development Agreement AGR No. 23-001, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and

WHEREAS, Developer proposes the development of one industrial building totaling approximately 33,585 square feet , including up to 3,000 square feet of office 5

space to achieve the goals of the City's General Plan ("General Plan"), as further described in the Development Agreement AGR No. 23-001 (such development shall be referred to herein as the "Project"); and

WHEREAS, City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan; and

WHEREAS, City has found that the Development Agreement AGR No. 23-001 is consistent with City's General Plan; and

WHEREAS, consistent with the California Environmental Quality Act ( “CEQA”) (Pub. Resources Code § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), an Initial Study/Mitigated Negative Declaration (“IS/MND”) was prepared for the Fontana Business Center 3 project and circulated for public comment,; and

WHEREAS, on April 9, 2024, pursuant to CEQA and the State CEQA Guidelines the City adopted the IS/MND and approved the Mitigation Monitoring and Reporting Program (“MMRP”); and

WHEREAS, City has determined that by entering into the Developm ent Agreement: (i) City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan and (ii) City will benefit from increased employment and industrial opportunities created by the Project for residents of the City; and

WHEREAS, on April 9, 2024, a duly noticed public hearing on Development Agreement AGR No. 23-001 was held by the City Council to consider testimony and evidence presented by the Applicant, City staff, and other interested parties; and

WHEREAS, on April 9, 2024, the City Council carefully considered all information, evidence and testimony presented at its public hearing on DA; and

WHEREAS, all the notices requires by statute and the Fontana Municipal Code have been given as required.

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

Section 1. Recitals. The City Council hereby incorporates by reference the Recitals set forth herein and adopts those recitals as its own as through fully set forth in this Ordinance.

Section 2. California Environmental Quality Act. As the decision -making body for the Developme nt Agreement, the City Council has reviewed and considered the adopted IS/MND, any oral or written comments received, and the administrative record 5

prior to making any decision on the Development Agreement. Based on the substantial evidence set forth in the record, including but not limited to, the adopted IS/MND, and all related information presented to the City Council, the Council finds that the Development Agreement does not necessitate any modifications to the adopted IS/MND. The Council further finds that no new or additional mitigation measures or alternatives are required, and that there is no substantial evidence in the administrative record supporting a fair argument that the Development Agreement may result in any significant environmental impacts beyond those analyzed in the adopted IS/MND. Therefore, pursuant to State CEQA section 15072 and Section 6.04 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the Council finds that the preparation of a subsequent or supplemental environmental document is not required for the Development Agreement.

Section 3. Findings of Public Health, Safety and Welfare. Based on the entire record before the City Council and all written and oral evidence presented to the City Council, the City Council finds this Ordinance promotes the public health, safety and welfare of the community because the Development Agreement will enable needed public improvements at the Property and the economic development of the Property will benefit the citizens of the City.

Section 4. Findings of Best Interest of City. Based on the entire record before the City Council and all written and oral evidence presented t o the City Council, the City Council finds that the Development Agreement is in the best interests of the City, and represents good land use practices, as it ensures the orderly development of the Property with amenities and infrastructure that will be ben eficial to the community. Furthermore, City Council finds the Development Agreement to be fair, just, reasonable and consistent with the General Plan, 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 compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located;

(iii) the Development Agreement is consistent with the General Plan;

(iv) the Development Agreement is in co nformity with the public convenience, general welfare and good land use practice;

(v) the Development Agreement will not be detrimental to the public health, safety and general welfare; and

(vi) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the Property or any other property.

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Section 5. Findings of Public Benefit. The City Council further finds that among the public benefits to accrue to the residents of the City as a resul t of the Development Agreement are:

1. The revitalization of an underdeveloped site.

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

3. The generation of additional property tax.

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

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

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

Section 6. Approval. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves Development Agreement (AGR) No. 23- 001, attached hereto as “Exhibit A” and incorporated by reference herein, between Chase Partners and the City of Fontana, a California municipal corporation.

Section 7. Certification. The City Clerk shall cause to be recorded with the San Bernardino County Recorder a copy of the executed Development Agreement at the time and in the manner provided for in the Development Agreement.

Section 8. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from the passage thereof, or after the adoption of the City Council Ordinance approving Zoning Code Amendment No. 23-002 and Specific Plan Amendment No. 23-001, whichever occurs later, provided however, if the Ordinance approving the Zoning Code Amendment or Specific Plan Amendment is for any reason held to be invalid or unconstitutional by the decision of any court of competen t jurisdiction, or otherwise does not go into effect for any reason, then this Ordinance shall be null and void and have no further force and effect. This Ordinance shall be published by the City Clerk at least once in the Fontana Herald News, a local newspaper of the general circulation, published and circulated in the City of Fontana, and henceforth and thereafter the same shall be in full force and effect.

Section 9. Severability. If any provision of this Ordinance or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application.

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APPROVED and ADOPTED this 9th day of April 2024.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney

I, Germaine Key, City Clerk of the City of Fontana, and Ex-Officio Clerk of the City Council, do hereby certify that the foregoing Ordinance is the actual Ordinance adopted by the City Council and was introduced at a regular meeting on the 9th day of April 2024, and was finally passed and adopted not less than five days thereafter on the 23rd day of April 2024 by the following vote to wit:

AYES:

NOES:

ABSENT:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk

5 RECORDING REQUESTED BY:

Cecily Session-Goins
Order No:

WHEN RECORDED MAIL
DOCUMENT TO:

City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn.: City Clerk
Space Above This Line for Recorder's Use Only
Exempt from Recording Fees Pursuant
to Gov. Code §§ 27383, 6103

JUNIPER PROJECT

DEVELOPMENT AGREEMENT

BETWEEN

THE CITY OF FONTANA,
a California municipal corporation
and

CHASE JUNIPER LIMITED PARTNERSHIP
a California Limited Partnership
Dated as of __October 19_, 2023 for reference purposes

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JUNIPER AVENUE PROJECT DEVELOPMENT AGREEMENT
This JUNIPER AVENUE PROJECT DEVELOPMENT AGREEMENT ("Agreement") is entered into by the City of Fontana a California municipal corporation (hereinafter "City"), and Chase Juniper Limited Partnership, a California limited partnership (hereinafter "Owner"). This Agreement is dated February 8, 2024 for reference purposes only; it will not become effective until the "Effective Date" (defined below). City and Owner are sometimes collectively referred to in this Agreement as the "Parties" and individually as a "Party."

RECITALS
WHEREAS, City is authorized to enter into binding d evelopment agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, Owner has requested that City enter into t his Development Agreement with respect to that certain real property located on the east side of Juniper Avenue and south of Santa Ana Avenue in the City, consisting of 2 parcels ide ntified as Assessor’s Parcel Numbers (APNs) 0255-101-24 & 0255-101-30, as more particularly des cribed on Exhibit “A” and shown on Exhibit “B” to this Agreement (the “Property”), and proceedings have been taken in accordance with the rules and regulations of City; and
WHEREAS, by electing to enter into this Agreement, City shall bind the City, including current and future City Councils of City, by the ob ligations specified herein and limit the future exercise of certain governmental and proprietary powers of City; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development A pprovals described in this Agreement, the City Council has reviewed and consid ered the Environmental Impact Report and made findings concerning the mitigation measures an d adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and WHEREAS, Owner has filed an application for, and th e City Council has approved, General Plan Amendment (GPA) No. 23-001, Specific P lan Amendment (SPA) No. 23-001, Administrative Site Plan (ASP) No. 23-006 and Tentative Parcel Map (TPM) No.23-003; and WHEREAS, this Agreement and the Project are consist ent with the City's Comprehensive General Plan and Specific Plan (as defined in Section 1 below), as amended; and WHEREAS, all actions taken and approvals given by C ity have been duly taken or approved in accordance with all applicable legal re quirements for notice, public hearings, findings, votes, and other procedural matters; and

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WHEREAS, development of the Property in accordance with this Agreement and Development Plan (as defined in Section 1 below) wi ll provide substantial benefits to City and will further important policies and goals of City; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure the ins tallation of necessary improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sec tions 65864 et seq. of the Government Code are intended; and
WHEREAS, Owner has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to a ssure the vesting of its legal rights to develop the Property in accordance with this Agreement and Development Plan (defined below).

COVENANTS
NOW, THEREFORE, in consideration of the above recit als and of the mutual covenants hereinafter contained and for other good and valuab le consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS AND EXHIBITS

1.1 Definitions . The following terms when used in this Agreement shall be defined as follows:

1.1.1 "Agreement " means this Development Agreement.

1.1.2 "City " means the City of Fontana, a municipal corporatio n, organized and existing pursuant to the laws of the State of California.

1.1.3 "Owner " means Chase Juniper Limited Partnership, a Califo rnia limited partnership, and its successors in interest to all or any part of the Property.

1.1.4 "Development " means the improvement of the Property for the pur poses of completing the structures, improvements and faci lities comprising the Project, including, but not limited to: grading; the construction of infra structure and public facilities related to the Project whether located within or outside the Prope rty; the construction of buildings and structures; and the installation of landscaping. " Development " does not include the repair or reconstruction of any building, structure, improvem ent, or facility after the construction and completion thereof if undertaken during the Term of this Agreement.

1.1.5 "Development Agreement Policies " means those certain development agreement policies approve by City pursuant to Ordi nance No. , adopted on as may be amended, as Resolution No. , adopted on , as may be amended.

1.1.6 "Development Approvals " means all permits and other entitlements subject to approval or issuance by City in connecti on with the Development of the Property as set forth in attached Exhibit C, including, but not limited to: general plan amen dments; specific

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plans and specific plan amendments; tentative and f inal subdivision and parcel maps; design review; conditional use permits; zoning; and grading and building permits.

1.1.7 "Development Exaction " means any requirement of City in connection with or pursuant to any Land Use Regulation or Deve lopment Approval for the dedication of land, the construction of improvements or public fa cilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impa cts of development on the environment or other public interests, including those imposed in accordance with the MMRP.

1.1.8 "Development Impact Fee " means a monetary exaction other than a tax or special assessment, whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on a n ad hoc basis, that is charged by City to the applicant in connection with the approval of a deve lopment project for the purpose of defraying all or a portion of the cost of public facilities r elated to the development project, but does not include park “in lieu” fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the G overnment Code (commencing with Section 65864) of Chapter 4, or fees collected pursuant to agreements with redevelopment agencies which provide for the redevelopment of property in furtherance or for the benefit of a redevelopment project for which a redevelopment pla n has been adopted pursuant to the Community Redevelopment Law (Part 1 (commencing with Section 33000) of Division 24 of the Health and Safety Code).

1.1.9 "Development Plan " means the development of the Property permitted b y the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.10 "Effective Date " means the date the ordinance approving this Agree ment becomes effective.

1.1.11 "Existing Development Approvals " means all Development Approvals approved or issued prior to, or as of, the Effectiv e Date. Existing Development Approvals includes the Development Approvals described on the attached Exhibit C and all other Development Approvals which are a matter of public record on the Effective Date. The Existing Development Approvals are sufficient in order to de velop the Property and to implement the Project.

1.1.12 "Existing Land Use Regulations " means all Land Use Regulations in effect on the Effective Date.

1.1.13 "Land Use Regulations " means all ordinances, resolutions, codes, rules, regulations and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of propos ed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the Deve lopment of the Property. " Land Use Regulations " do not include any City ordinance, resolution, co de, rule, regulation, or official

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policy governing: the conduct of businesses, profe ssions, and occupations; taxes and assessments; the control and abatement of nuisances ; the granting of encroachment permits and the conveyance of rights and interests which provid e for the use of or the entry upon public property; or the exercise of the power of eminent domain.

1.1.14 "Mitigation Monitoring and Reporting Program " or "MMRP " means the mitigation monitoring and reporting program for ass essing and ensuring compliance with required environmental impact mitigation measures a pproved by City Council Resolution No. _________ ___________, 2023 in conjunction with the City Council's certification of the EIR.

1.1.15 "Mortgagee " means a mortgagee of a mortgage, a beneficiary un der a deed of trust, or any other security-device lender, and their successors and assigns in interest to all or any part of the Property.

1.1.16 "Parcel Map " means the subdivision map identified in City reco rds as Tentative Parcel Map No. 20638 and approved by the City Council on ____________, 2023.

1.1.17 "Project " means the Development of the Property contemplate d by the Development Plan, as such Development Plan may be f urther defined, enhanced, or modified pursuant to the provisions of this Agreement. The Project will consist of a logistics facility totaling approximately 490,565 square feet.

1.1.18 "Property " means the certain real property located on Junipe r Avenue in the City, consisting of two parcels identified as A ssessor’s Parcel Numbers (APNs) 0255-101-24 & 0255-101-30, as more particularly described in Exhibit A and shown on Exhibit B to this Agreement.

1.1.19 "Reservations of Authority " means the rights and authority excepted from the assurances and rights provided to Owner under t his Agreement and reserved to City under Section 3.6 of this Agreement.

1.1.20 "Specific Plan " means the "Southwest Industrial Park Specific Pla n (SWIP)" identified in City records as SP No. 09-02 and adopted by City Council Ordinance No. 1663 on June 12, 2012.

1.1.21 "Subdivision Map Act " means Government Code Sections 66410, et seq.

1.1.22 "Subsequent Development Approvals " means all Development Approvals required subsequent to the Effective Date in connection with the Development of the Property.

1.1.23 "Subsequent Land Use Regulations " means any Land Use Regulations adopted and effective after the Effective Date.

1.1.24 "Term " has the meaning given in Section 2.3 of this Agreement.

1.2 Exhibits . The following documents are attached to, and by this reference made a part of, this Agreement:

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Exhibit A – Legal Description of the Property
Exhibit B – Map showing Property and its location
Exhibit C – Existing Development Approvals

2. GENERAL PROVISIONS

2.1 Binding Effect of Agreement . The Property is hereby made subject to this Agreement. The Development of the Property is here by authorized and shall be carried out only in accordance with the provisions of this Agreement.

2.2 Property Ownership and Interest . The Owner represents and covenants that it is the legal or equitable owner of the fee simple title to the Property.

2.3 Term . The term of this Agreement shall commence on the Effective Date, and shall continue for a period of ten (10) years there after unless this term is modified or extended pursuant to the provisions of this Agreement.

2.4 Sale or Assignment .

2.4.1 Right to Assign. Subject to the City's written con sent, which shall not be unreasonably withheld, delayed or conditioned, Owne r shall have the right to sell, transfer, or assign the Property in whole or in part (provided t hat no such partial transfer shall violate the Subdivision Map Act) to any person, partnership, jo int venture, affiliate, firm, or corporation at any time; provided, however, that any such sale, tr ansfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or int erest under this Agreement shall be made unless made together with t he sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer, or assignm ent, or within fifteen (15) business days thereafter, Owner shall notify City, in writing, of such sale, transfer, or assignment and shall provide City with an executed agreement, in a form reasonably acceptable to City, executed by the purchaser, transferee, or assignee and providing therein that the purchaser, transferee, or assignee expressly and un conditionally assumes all the duties and obligations of Owner under this Agreement.

Any sale, transfer or assignment not made in compli ance with the foregoing conditions shall constitute a default by Owner under this Agre ement. Notwithstanding the failure of any purchaser, transferee or assignee to execute this a greement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement sha ll be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement sha ll not inure to such purchaser, transferee or assignee until and unless such agreement is execute d. Notwithstanding the foregoing, Owner shall have the right to transfer its interest in this Agreement to an “Owner Affiliate.” An “Owner Affiliate” is an entity in which the original owner owns a majority financial or voting interest.

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Owner shall provide written notification to City co ncurrently with the completion of such a transfer.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, Owner shall continue to be obligated un der this Agreement as to that portion of the Property sold, transferred or assigned, unless Owne r is given a release in writing by City, which release shall be provided by City upon the full sat isfaction by Owner of all of the following conditions:
(a) Owner no longer has a legal or equitable interest i n all or any part of the Property sold.
(b) Owner is not then in default under this Agreement. (c) Owner has provided City with the notice and execute d agreement required under paragraph (2) of subsection 2.4.1(b) above. (d) The purchaser, transferee or assignee provides City with security equivalent to any security previously provided by Owner to secure performance of its obligations hereunder.

2.4.3 Subsequent Assignment. Any subsequent sale, transfe r or assignment after an initial sale, transfer or assignment shall be ma de only in accordance with and subject to the terms and conditions of this Section.

2.4.4 Partial Release of Purchaser, Transferee or Assigne e of Industrial or Commercial Lot. A purchaser, transferee or assigne e of a lot, which has been finally subdivided as provided for in the Development Plan and for whi ch a commercial or industrial plot plan for development of the lot has been finally approved pu rsuant to the Development Plan, may submit a request, in writing, to City to release said lot from the obligations under this Agreement relating to all other portions of the property. Wit hin thirty (30) days of such request, City shall review, and if the above conditions are satisfied s hall approve the request for release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection 2.4.4 shall cause, or otherwise affect, a release of Owner from its duties and obligations under this Agreement.

2.4.5 Termination of Agreement With Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) o f any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user.

Notwithstanding any other provisions of this Agreem ent, this Agreement shall terminate with respect to any lot and such lot shall be released a nd no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individuall y (and not in “bulk”) sold or leased (for a period longer than on e year) to a member of the public or other ultimate user; and,

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(b) A certificate of occupancy has been issued for a bu ilding on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

2.5 Amendment or Cancellation of Agreement . This Agreement may be amended or canceled in whole or in part only by written con sent of all parties in the manner provided for in Government Code Section 65868 and the Developmen t Agreement Policies. This provision shall not limit any remedy of City or Owner for a party's breach of the Agreement as provided by this Agreement.

2.6 Termination . This Agreement shall terminate and be of no furt her effect upon the occurrence of any of the following events:

2.6.1 Expiration of the stated term of this agreement as set forth herein.

2.6.2 Entry of a final judgment setting aside, voiding, o r annulling the adoption of the ordinance approving this Agreement.

2.6.3 The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.

2.6.4 The completion of the Project in accordance with th e terms of this Agreement, including, without limitation, the issua nce of all required occupancy permits and acceptance by City (or other applicable public agency) of any required public dedications.

2.6.5 Termination by the City upon a default by Owner, as provided in this Agreement.

2.6.6 Termination of this Agreement will not operate to a utomatically terminate any Development Approvals or other land use entitle ments approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the pr ovisions of this Agreement that has occurred prior to such termination, or with respect to any o bligations which are specifically set forth as surviving this Agreement. Upon such termination, an y public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by Owner to City buildings on which construction has not yet begun shall be refunded to Owner by City.

2.6.7 Notwithstanding any provision herein to the contrar y, the obligation of Owner to pay the Public Benefit Fee as set forth in Section 4.3.1 shall survive the termination of this Agreement until all buildings have been constr ucted on the Property pursuant to the Development Plan or otherwise.

2.7 Notices.

2.7.1 As used in this Agreement, "notice" includes, but i s not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder.

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2.7.2 All notices shall be in writing and shall be consid ered given either:
(i) when delivered in person to the recipient named below; (ii) on the date of delivery shown on the return receipt after deposit in the United Stat es mail in a sealed envelope as either registered or certified mail with return receipt requested, po stage and postal charges prepaid, and addressed to the recipient named below; or (iii) by overnight courier, on the first (1st) business day after being delivered to a recognized overnight courier. All notices shall be addressed as follows:

If to City:

City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600
If to Owner:

Chase Juniper Limited Partnership
c/o Chase Partners, Ltd.,
6444 San Fernando Road #3944
Glendale, CA 91221
Attn: Michael Carter
Telephone: (310) 689 -7600
with a copy to:

Best, Best & Krieger, LLP
2855 East Guasti Rd., Suite 400
Ontario, CA 91761
Attn: Fontana City Attorney
Telephone: (909) 989 -8584
with a copy to:

2.7.3 Either party may, by notice given at any time, requ ire subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY

3.1 Rights to Develop . Subject to the terms of this Agreement, includin g the Reservations of Authority, Owner shall have the ves ted right to develop the Property in accordance with, and to the extent of, the Developm ent Plan. The Project shall remain subject to all Subsequent Development Approvals required to co mplete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the max imum height and size of proposed buildings, and provisions for reservation and dedication of la nd for public purposes shall be those set forth in the Development Plan. Notwithstanding the foreg oing, nothing contained in this Agreement shall be deemed to be a covenant to develop or cons truct the Project or any portion of the Project.

3.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement, including the Re servations of Authority, the rules, regulations, and official policies governing permit ted uses of the Property, the density and intensity of use of the Property, the maximum heigh t and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing L and Use Regulations. In connection with

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any Subsequent Development Approval, City shall exe rcise its reasonable discretion in accordance with the Development Plan and as provide d by this Agreement, including, but not limited to, the Reservations of Authority. City sh all accept for processing, review, and action all applications for Subsequent Development Approvals a nd such applications shall be processed in the normal manner for processing such matters.

3.3 Timing of Development . The parties acknowledge that Owner cannot at thi s time predict when or the rate at which phases of th e Property will be developed. Such decisions depend upon numerous factors which are not within t he control of Owner, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Because the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is City's and Owner's intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develo p the Property, or not, in such order and at such rate and at such times as Owner deems appropri ate within the exercise of its subjective business judgment, subject only to any timing or ph asing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4.

3.4 Development Phasing Plan . The Development of the Property is subject to an y timing and phasing requirements established by the Development Plan.

3.5 Changes and Amendments .

3.5.1 The parties acknowledge that refinement and further development of the Project may demonstrate that changes are appropriat e and mutually desirable in the Existing Development Approvals. If in years one (1) through five (5) during the Term of this Agreement, Owner finds that a change in the Existing Developme nt Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Appr oval to effectuate such change and City shall process and act on such application in accord ance with the Existing Land Use Regulations, except as otherwise provided by this Agreement, inc luding the Reservations of Authority. If approved, any such change in the Existing Developme nt Approvals shall be incorporated herein as an addendum to Exhibit C and may be further changed from time to time as pr ovided in this Section 3.5.

If in years six (6) through ten (10) during the Ter m of this Agreement, Owner finds that changes to the Existing Development Approvals are necessary or appropriate for the refinement and further development of the Project, Owner shall app ly for a Subsequent Development Approval and City shall process and act on such application in accordance with the land use regulations existing at the time of such application. Notwithst anding any provision herein to the contrary, Owner shall pay any and all fees and Development Ex action in place following years one (1) through five (5) and shall be required to pay any and all fees and exactions adopted at the time of applications for permits and approvals related to t he Development Plan, including any amendments thereto.

3.5.2 Unless otherwise required by law, as determined in City's reasonable discretion, a change to the Existing Development Ap provals shall be deemed "minor" and not

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require an amendment to this Agreement; but instead will require only the approval of City's Director of Planning; provided the change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Pro perty as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedicat ion of land for public purposes; or,
(e) Constitute a project requiring a subsequent or supp lemental environmental impact report pursuant to Section 211 66 of the Public Resources Code.
(f) Alter the findings of the applicable environmental document. (g) The provisions of this Agreement require a close de gree of cooperation between the City and the Owner. It is anticipated due to the term of this Agreement that refinements to the Development Approvals may b e appropriate with respect to the details of performance of the City and the Owner. To the extent allowable by law, the Owner shall retain a certain degree of flexibility as provided herein wi th respect to all matters, items and provisions covered in general under this Agreement and exhibit s thereto. When and if the Owner finds it necessary or appropriate to make changes, adjustmen ts or clarifications, the Parties shall effectuate such changes, adjustments or clarificati ons through operating memoranda (“Operating Memoranda”) approved by the Parties in writing, whi ch reference this Section of the Agreement.

Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore, public notic es and hearings shall not be required. The City Attorney shall be authorized, upon consultation wit h the Owner, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to the Agreement which requires compliance with the provisions of this Agreement pe rtaining to amendments. The authority to enter into such Operating Memoranda is hereby deleg ated to the City Manager, and the City Manager is hereby authorized to execute any Operati ng Memoranda hereunder without Planning Commission or City Council action and without publi c hearing. Although other matters may also fall within the scope of Operating Memoranda, any amendment to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the reservation or dedication of land, grant of easement, or the condi tions, terms, restrictions and requirements relating to Subsequent Development Approvals of Cit y, revisions to Public Benefits (other than to the time for performance of such Public Benefits ) or monetary exactions of Owner, shall be considered an “Operating Memorandum”.

3.6 Reservations of Authority .

3.6.1 Limitations, Reservations and Exceptions. Notwiths tanding any other provision of this Agreement, the following Subseque nt Land Use Regulations and fees and

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expenses shall apply to the Development of the Prop erty (collectively, the " Reservations of Authority "):
(a) Processing fees and charges of every kind and natur e imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure.
(c) Regulations governing construction standards and sp ecifications, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code.
(d) Regulations imposing Development Exactions; In ye ars one (1) through five (5) during Term of this Agreement, no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either through out the City or within a defined area of benefit which includes the Property. No such subseq uently adopted Development Exaction within the aforementioned timeframe shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In t he event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, City shall allow a cre dit against such subsequently adopted Development Exaction for the fees paid under Sectio n 4 of this Agreement to the extent such fees fulfill the same purposes.
(e) Regulations that may be in conflict with the Develo pment Plan but that are reasonably necessary to eliminate or mitig ate a serious threat to public health and safety.

To the extent possible, any such regulations shall be applied and construed so as to provide Owner with the rights and assurances provided under this Agreement. (f) Regulations that are not in conflict with the Devel opment Plan.

Any regulation, whether adopted by initiative or ot herwise, limiting the rate or timing of development of the Property, or which shall increase the cost of development of the Project, shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the property during years one (1) through five (5) of the Term of this Agreement.

3.6.2 Subsequent Development Approvals. This Agreement s hall not prevent City, in acting on Subsequent Development Approvals , from applying Subsequent Land Use Regulations that do not conflict with the Developme nt Plan subject to 3.6.1(f), nor shall this Agreement prevent City from denying or conditionall y approving any Subsequent Development Approval on the basis of the Existing Land Use Regu lations or on the basis of any Subsequent Land Use Regulation which does not conflict with th e Development Plan. Upon approval of any Subsequent Development Approval, such Subsequent De velopment Approval shall be deemed

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vested pursuant to the provisions of this Agreement, without any further action by City or Owner being required.

3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more of the provisi ons of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, tha t this Agreement shall remain in full force and effect to the extent it is not inconsistent wit h such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.

3.6.4 Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited.

3.7 Public Works . Owner shall construct all public improvements re lated to the Project in accordance with City's or other applicab le public agency's then applicable public works engineering standards.

3.8 Provision of Real Property Interests by City . In any instance where Owner is required to construct any public improvement on lan d not owned by Owner, Owner shall at its sole cost and expense provide or cause to be provid ed, the real property interests necessary for the construction of such public improvements. In th e event Owner is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by Owner and upo n Owner’s provision of adequate security for costs City may reasonably incur, City shall neg otiate the purchase of the necessary real property interests to allow Owner to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real pro perty interests. Owner shall pay all costs associated with such acquisition or condemnation pr oceedings. This section 3.8 is not intended by the parties to impose upon the Owner an enforcea ble duty to acquire land or construct any public improvements on land not owned by Owner, exc ept to the extent that the Owner elects to proceed with the development of the Project, and th en only in accordance with valid conditions imposed by the City upon the development of the Pro ject under the Subdivision Map Act or other legal authority.

3.9 Regulation by Other Public Agencies . It is acknowledged by the parties that other public agencies not within the control of Cit y possess authority to regulate aspects of the development of the Property separately from or join tly with City and this Agreement does not limit the authority of such other public agencies.

3.10 Tentative Tract Map Extensions . Notwithstanding the provisions of Section 66452.6 of the Government Code, no tentative subdiv ision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be granted an extension of time except in accordance with the Existing Land Use Regulations.

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3.11 Vesting Tentative Maps . If any tentative or final subdivision map, or ten tative or final parcel map, heretofore or hereafter approved in connection with development of the Property, is a vesting map under the Subdivision Ma p Act (Government Code Section 66410 et seq.) and if this Agreement is determined by a fina l judgment to be invalid or unenforceable insofar as it grants a vested right to develop to O wner, then and to that extent the rights and protections afforded Owner under the laws and ordin ances applicable to vesting maps shall supersede the provisions of this Agreement. Except as set forth immediately above, development of the Property shall occur only as provided in thi s Agreement, and the provisions in this Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.

3.12 Utilities . The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other uti lity service to the Project. Owner shall contract with the City for City-owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties.

4. PUBLIC BENEFITS

4.1 Intent . The parties acknowledge and agree that the Devel opment of the Property will result in substantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on Owner which should be balanced by commensurate public ben efits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on Owner by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 Development Impact Fees .

4.2.1 Amount and Components of Fee. The amount of the pu blic facilities and services mitigation fees may be periodically adjusted by the City.

4.2.2 Time of Payment. The fees required pursuant to this section shall be paid to City prior to the issuance of building permits. No fees shall be payable for building permits issued prior to the Effective Date of this Agreemen t, but the fees required pursuant to Subsection

4.2.1 shall be paid prior to the re-issuance or ext ension of any building permit for which such fees have not previously been paid.

4.3 Public Benefit Fee .

4.3.1 As consideration for City's approval and performanc e of its obligations as set forth in this Agreement, Owner agrees to pay to the City a one-time public benefit fee in the amount of Four Dollars and Twenty five Cents ($4.25 ) per building square foot, which is estimated to be One Hundred Fifty Thousand, Eight H undred Ninety-Six Dollars and Twenty Five Cents ($150,896.25) ("Public Benefit Fee "). Payment of the Public Benefit Fee shall be in addition to any other customary fees or charges to which the Project would otherwise be subject (e.g., development impact fees and application fees ). The actual amount of the Public Benefit Fee shall be set, based upon the actual building sq uare footage, prior to the issuance of any building permit for the Project, and Owner shall pa y the Public Benefit Fee to the City prior to the issuance of any building permit for the Project.

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4.3.2 The City has sole discretion to determine the uses for the Public Benefit Fee. The City has not designated a specific project or purpose for the Public Benefit Fee. Owner acknowledges by its approval and execution of this Agreement that it is voluntarily agreeing to pay the Public Benefit Fee, that its obligation to pay the Public Benefit Fee is an essential term of this Agreement, and that Owner expressly waives any constitutional, statutory, or common law right it might have in the absence of this Agreemen t to protest or challenge the payment of the Public Benefit Fee on any ground whatsoever, includ ing without limitation pursuant to the Fifth and Fourteenth Amendments to the United States Cons titution, California Constitution Article I Section 19, the Mitigation Fee Act (California Gove rnment Code Section 66000 et seq.), or otherwise.

4.3.3 Notwithstanding any provision herein to the contrar y, the obligation of Owner to pay the Public Benefit Fee as set forth in Section 4.3.1 shall survive the termination of this Agreement until all buildings have been constr ucted on the Property pursuant to the Development Plan or otherwise.

5. FINANCING OF PUBLIC IMPROVEMENTS.

If deemed appropriate, City and Owner will cooperat e in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of pu blic infrastructure facilities required as part of the Development Plan. City also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to financ e such reimbursements, Owner may be reimbursed to the extent that Owner spends funds or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be constr ued as requiring City or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE

6.1 Periodic Review . As required by California Government Code Sectio n 65865.1, the Director of Planning will review this Agreement annually, on or before each anniversary of the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Agreement. Owner shall submit an Annual Monitor ing Report, in a form acceptable to the Director of Planning, within 30 days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administra tion of the Agreement during the succeeding year. The amount of the annual review and administr ation fee shall be set annually by resolution of the City Council.

6.2 Special Review . The City Council may order a special review of O wner's compliance with this Agreement at any time. The Di rector of Planning will conduct the special review.

6.2.1 During either an annual or special review. Owner w ill be required to demonstrate its good faith compliance with this Agr eement. The burden of proof on this issue shall be on Owner.

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6.2.2 Upon completion of an annual or special review, the Director of Planning will submit a report to the City Council setting fo rth the evidence concerning Owner's good faith compliance with this Agreement and his or her recommended finding on that issue.

6.2.3 If the City Council finds on the basis of substanti al evidence that Owner has materially complied in good faith with the term s and conditions of this Agreement, then the review will be concluded.

6.2.4 If the City Council makes a preliminary finding tha t Owner has not materially complied in good faith with this Agreeme nt, then, following notice and opportunity to cure as provided under Section 6.4, the City Counci l may modify or terminate this Agreement as provide in Section 6.4 and 6.5. Notice of default as provided under Section 7.4 of this Agreement shall be given to Owner prior to or concu rrent with, proceedings under Section 6.4 and Section 6.5.

7. PROCEEDINGS FOR MODIFICATION OR TERMINATION.

7.1 Proceedings Upon Modification or Termination . If, upon a finding under Section 6.2, City determines to proceed with modifi cation or termination of this Agreement, City shall give written notice to Owner of its intention so to do. The notice shall be given at least ten calendar days prior to the scheduled hearing and shall contain:

7.1.1 The time and place of the hearing;

7.1.2 A statement as to whether or not City proposes to t erminate or to modify the Agreement; and

7.1.3 Such other information as is reasonably necessary t o inform Owner of the nature of the proceeding.

7.2 Hearing on Modification or Termination . At the time and place set for the hearing on modification or termination, Owner shall be given an opportunity to be heard. Owner shall be required to demonstrate good faith complia nce with the terms and conditions of this Agreement. The burden of proof on this issue shall be on Owner. If the City Council finds, based upon substantial evidence, that Owner has not compl ied in good faith with the terms or conditions of the Agreement, the City Council may t erminate this Agreement or modify this Agreement and impose such conditions as are reasona bly necessary to protect the interests of the City. The decision of the City Council shall be fin al, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

7.3 Certificate of Agreement Compliance . If, at the conclusion of a Periodic or Special Review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after the most recent Periodic or Special Revi ew and based upon the information known or made known to the Planning Director and City Counci l that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate sh all be in recordable form, shall contain information necessary to communicate constructive r ecord notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the

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anticipated date of commencement of the next Period ic Review. Owner may record the Certificate with the County Recorder.

Whether or not the Certificate is relied upon by as signees or other transferees or Owner, City shall not be bound by a Certificate if a defau lt existed at the time of the Periodic or Special Review, but was concealed from or otherwise not kno wn to the Planning Director or City Council.

8. DEFAULT AND REMEDIES

8.1 Remedies in General . The parties agree that the City would not have e ntered into this Agreement if it were to be liable for dam ages under this Agreement, or with respect to this Agreement or the application itself.

8.1.1 In general, and subject to those procedural prerequisites required under the Development Agreement Policies or this Agreement, e ach of the parties may pursue any remedy at law or equity available for the breach of this A greement, except that CITY shall not be liable in damages to Owner, or to any successor in interes t of Owner, or to any other person, and Owner covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause o f action that arises out of this Agreement; or
(b) For the taking, impairment, or restriction of any r ight or interest conveyed, provided under or arising under this Agreement; or (c) Arising out of or connected with any dispute, contr oversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

8.2 Specific Performance .

8.2.1 The parties acknowledge that money damages and reme dies at law generally are inadequate and specific performance a nd other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Monetary damages are unavailable against City as pr ovided in Section 8.1 above.
(b) Due to the size, nature and scope of the Project, i t may not be practical or possible to restore the Property to it s natural condition once implementation of this Agreement has begun. After such time, Owner may be precluded from other options it may have had with regard to the Property or any portions the reof. Moreover, Owner has invested significant time and resources in the planning and processing of the Project. Owner will be investing even more time and resources in implement ing the Project in reliance upon this Agreement and it is not possible to determine the s um of money that would adequately compensate Owner for such efforts.

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8.3 Release . Except for non-damage remedies, including the re medy of specific performance as provided in Section 8.2, Owner, for itself, its successors and assignees, releases City, its officials, officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liab ility, known or unknown, present or future, including, but not limited to, any claim or liabili ty based upon Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance that seeks to impose any other liabili ty or damage, whatsoever upon City because it entered into this Agreement or because of the terms of this Agreement.

8.4 City's Termination of Agreement or Exercise of Othe r Remedies Upon Owner's Default . City may terminate or modify this Agreement as t o all or a portion of the Property upon Owner's failure to perform any materi al duty or obligation under this Agreement, or to comply in good faith with the terms of this A greement (hereinafter referred to as "default"); provided, however, City may modify or terminate thi s Agreement pursuant to this Section only after providing written notice to Owner of default setting forth the nature of the default and the actions, if any, required by Owner to cure such def ault and, where the default can be cured, if Owner fails to cure the default within sixty (60) d ays after its receipt of the notice, or if the default is of a type that cannot be cured within si xty (60) days but can be cured within a longer time, and Owner fails to commence the actions neces sary to cure the default within sixty (60) days and to diligently proceed to cure the default.

8.5 Owner's Termination of Agreement or Exercise of Oth er Remedies Upon City's Default . Owner may terminate this Agreement only in the event of a default by City in the performance of a material term of this Agreement an d only after providing written notice to City of default setting forth the nature of the default and the actions, if any, required by City to cure such default and, where the default can be cured, C ity has failed to take such actions and cure such default within 60 days after the effective dat e of such notice or, in the event that such default cannot be cured within such 60 day period b ut can be cured within a longer time, has failed to commence the actions necessary to cure su ch default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8.6 Informal Resolution . The parties recognize that good faith disagreeme nts may arise between City and Owner during the administrat ion and implementation of this Agreement.

The parties will meet and confer in a good-faith at tempt to resolve any dispute and will consider alternative dispute resolution mechanisms.

9. THIRD PARTY LITIGATION

9.1 General Plan Litigation . City has determined that this Agreement is consis tent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Owner has reviewed t he General Plan and concurs with City’s determination.

City shall have no liability in damages under this Agreement for any failure of City to perform under this Agreement or the inability of Ow ner to develop the Property as contemplated by the Development Plan of this Agreement as the re sult of a judicial determination that on the

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Effective Date, or at any time thereafter, the Gene ral Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third-Party Litigation Concerning Agreement . Owner shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless City, its agents, officers and employees from any claim, action or proceeding agai nst City, its agents, officers, or employees to attack, set aside, void, or annul the approval o f this Agreement or the approval of any permit granted pursuant to this Agreement. City shall prom ptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defe nse. If City fails to promptly notify Owner of any such claim, action or proceeding, or if City fa ils to cooperate in the defense, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless City. City may in its discretion participate in the defense of any such claim, actio n or proceeding. Anything in this Agreement to the contrary notwithstanding, the Term set forth in Section 4.3 of this Agreement and the expiration date of all Development Approvals will a utomatically be extended by the longer of (i) the number of days in the period commencing on the date of filing any legal action of the type described in this Section and ending on the date th at the claim, action or proceeding is either settled or fully and finally resolved in City’s and Owner’s favor, as evidenced by the expiration of all appeal periods with no further appeal being filed or the issuance of a full, final and non- appealable judgment or decisions; or (ii) the numbe r of days in the period commencing on the date that a referendum conceding the Development Ap provals is timely qualified for the ballot and the date that a referendum is certified resulti ng in upholding and approving the Development Approvals. City will execute, in recordable form, a ny instrument which Owner may reasonably require to evidence the extension.

9.3 Indemnity . In addition to the provisions of Section 9.2, Ow ner shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted up on any act or omission of Owner, its officers, agents, employees, subcontractors and independent c ontractors, for property damage, bodily injury, or death (Owner's employees included) or an y other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study , design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims and damages to the extent caused by the negligence or willful miscondu ct of City or its officers, agents, employees, contractors, subcontractors, and independent contra ctors. Owner shall defend, at its expense, including attorneys' fees, City, its officers, agen ts, employees and independent contractors in any legal action based upon such alleged acts or omissi ons. City may in its discretion participate in the defense of any such legal action.

9.4 Deposit of Legal Defense Costs. In the event of any litigation or legal challenge filed against City as described in this Section 9, then within twenty (20) calendar days following written demand by City therefor, Owner shall deposi t with City funds into a deposit account maintained by City (“Fund”) to reimburse City for C ity’s costs and expenses, including without limitation attorney’s fees, ultimately incurred by City to defend any such claim, action, or proceeding. The initial deposit shall be the sum of twenty thousand dollars ($20,000). The Fund, once established, shall at all times contain an amo unt necessary to cover not less than three (3) months of budgeted or anticipated expenditures by C ity relating to City’s defense of such claim, action, or proceeding, including any and all appeal s from decisions related thereto, as such

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budgeted or anticipated expenditures are determined by City in its sole and absolute discretion.

For such purposes, City may from time to time, in C ity’s sole and absolute discretion, make written demand upon Owner for deposit of additional funds by Owner into the Fund, in which event Owner shall deposit such additional funds int o the Fund within twenty (20) calendar days following written demand by City.

9.5 Environmental Assurances . Owner shall indemnify and hold City, its officer s, agents, and employees free and harmless from any li ability, based or asserted, upon any act or omission of Owner, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not lim ited to, soil and groundwater conditions, and Owner shall defend, at its expense, including attor neys' fees, City, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such action.

9.6 Reservation of Rights . With respect to Sections 9.2, 9.3 and 9.4 herein , City reserves the right to either (1) approve the attorn ey(s) which Owner selects, hires or otherwise engages to defend City hereunder, which approval sh all not be unreasonably withheld, or (2) conduct its own defense, provided, however, tha t Owner shall reimburse City upon written request for any and all reasonable expenses incurre d for such defense, including attorneys' fees, upon billing and accounting therefor. If City choos es to conduct its own defense, City’s separate counsel’s billing rates shall be identical to the r ates City pays for its typical municipal litigation rates for legal challenges for the type being defended.

10. MORTGAGEE PROTECTIONS
The parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumberin g the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. City acknowledges th at the lenders providing such financing may require certain Agreement interpretations and modif ications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. C ity will not unreasonably withhold its consent to any such requested interpretation or modificatio n provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach o f this Agreement shall defeat, render invalid, diminish, o r impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encu mbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the City in the manner specified herein for giving notices, sha ll be entitled to receive written notification from City of any default by Owner in the performanc e of Owner's obligations under this Agreement.

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(c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee with in ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the rig ht, but not the obligation, to cure the default during the remaining cure period allowed Owner under this Agreement. (d) Any Mortgagee who comes into possession of the Prop erty, or any part thereof, pursuant to foreclosure of the mortga ge or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part there of, subject to the terms of this Agreement.

Notwithstanding any other provision of this Agreeme nt to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perfo rm any of Owner's obligations or other affirmative covenants of Owner hereunder, or to gua rantee such performance; provided, however, that to the extent that any covenant to be performed by Owner is a condition precedent to the performance of a covenant by City, the perfo rmance thereof shall continue to be a condition precedent to City' s performance hereunde r, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

11. MISCELLANEOUS PROVISIONS

11.1 Recordation of Agreement . This Agreement and any amendment or cancellation thereof shall be recorded with the Cou nty Recorder by the City Clerk within the period required by Section 65868.5 of the Governmen t Code. Owner agrees that immediately following recordation of the grant deed by which th e Owner acquires title, the Owner will immediately record this Development Agreement against the real property.

11.2 Entire Agreement . This Agreement sets forth and contains the entir e understanding and agreement of the parties, and the re are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evid ence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

11.3 Severability . If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provi sions are not rendered impractical to perform taking into consideration the purposes of this Agre ement. Notwithstanding the foregoing, the provision of the public benefits set forth in Secti on 4 of this Agreement, including the payment of the fees set forth therein, are essential elemen ts of this Agreement and City would not have entered into this Agreement but for such provisions , and therefore in the event such provisions are determined to be invalid, void or unenforceable , this entire Agreement shall be null and void and of no force and effect whatsoever.

11.4 Interpretation and Governing Law . This Agreement and any dispute arising hereunder shall be governed and interpreted in acco rdance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purpos es of the parties hereto, and the rule of

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construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

11.5 Section Headings . All Section headings and subheadings are inserte d for convenience only and shall not affect the construction or interpretation of this Agreement.

11.6 Singular and Plural . As used herein, the singular of any word include s the plural.

11.7 Joint and Several Obligations . If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one Owner, all obligations of such Owner under this Agreement shall be joint and sever al, and the default of any such Owner shall be the default of all such Owners. Notwithstanding the foregoing, no Owner of a single lot which has been finally subdivided and sold to such Owner as a member of the general public or otherwise as an ultimate user shall have any obliga tion under this Agreement except as provided under Section 4 hereof.

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

11.9 Waiver . Failure by a party to insist upon the strict per formance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not cons titute a waiver of such party's right to insist and demand strict compliance by the other party thereafter.

11.10 No Third Party Beneficiaries . This Agreement is made and entered into for the sole protection and benefit of the parties and thei r successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

11.11 Force Majeure . Neither party shall be deemed to be in default w here failure or delay in performance of any of its obligations unde r this Agreement is caused by floods, earthquakes, epidemics, pandemics, other acts of Go d, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the par ty's control, (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's control. If any such eve nts shall occur, the Term of this Agreement and the time for performance by either party of any of its obligations hereunder will be extended for the period of time that such events prevented s uch performance, provided that the Term of this Agreement shall not be extended under any circ umstances due to a force majeure event for more than five (5) years.

11.12 Mutual Covenants . The covenants contained herein are mutual covena nts and also constitute conditions to the concurrent or sub sequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

11.13 Successors in Interest . Except as specifically set forth in this Agreeme nt, the burdens of this Agreement shall be binding upon, an d the benefits of this Agreement shall inure to, all successors in interest to the parties to th is Agreement. All provisions of this Agreement

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shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereu nder with regard to the Development of the Property: (a) is for the benefit of and is a burde n upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c ) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

11.14 Counterparts . This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

11.15 Jurisdiction and Venue . Any action at law or in equity arising under thi s Agreement or brought by a party hereto for the purp ose of enforcing, construing or determining the validity of any provision of this Agreement sha ll be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

11.16 Project as a Private Undertaking . It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other i n any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture, or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property by the Owner of such property.

11.17 Further Actions and Instruments . Each of the parties shall cooperate with and provide reasonable assistance to the other to the e xtent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably requ ired, and file or record such required instruments and writings and take any actions as ma y be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfi ll the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.

11.18 Eminent Domain . No provision of this Agreement shall be construe d to limit or restrict the exercise by City of its power of eminent domain.

11.19 Agent for Service of Process . In the event Owner is not a resident of the Stat e of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, Owner shall file with the Planning Director, upon i ts execution of this Agreement, a designation of a natural person residing in the State of Califo rnia, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delive ry to such agent of a copy of any process in any such action shall constitute valid service upon Owner. If for any reason service of such process upon such agent is not feasible, then in su ch event Owner may be personally served with such process out of this County and such service sh all constitute valid service upon Owner.

Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained

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and waives any and all objections and protests ther eto. Owner for itself, assigns and successors hereby waives the provisions of the Hague Conventio n (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or C ommercial Matters, 20 U.S.T. 361, T.I.A.S.

No. 6638).

11.20 Authority to Execute . The person or persons executing this Agreement o n behalf of Owner warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation , partnership, or business entity and warrants and represents that he or she/they has/have the aut hority to bind Owner to the performance of its obligations hereunder.
[Signatures on following pages]

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SIGNATURE PAGE TO

DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA

AND POPLAR SOUTH DC, LLC
City

CITY OF FONTANA,
a California municipal corporation
By:

Acquanetta Warren, Mayor
By:

Matthew Ballantyne, City Manager

CHASE JUNIPER LIMITED PARTNERSHIP,
a California limited partnership
By: Chase Partners, Ltd.,
a Nevada Corporation, its general partner
By:

Name: David A. Parker
Title: President
ATTEST:

By:

Germaine Key, City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

Ruben Duran, City Attorney

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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

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ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.

State of California )
County of ______________________ )
On _________________________, before me, ,
(insert name of notary)
Notary Public, personally appeared ,
who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature (Seal)

EXHIBIT A
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EXHIBIT A

TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND Chase Juniper, LP
Legal Description of the Property

Real property in the City of Fontana, County of San Bernardino, State of California, described as follows: TENTATIVE PARCEL MAP NO. 23003, BEING A DIVISION OF THE FOLLOWING:

TRACT 1: (0255-101-24 & 30)

FARM LOT 761, ACCORDING TO MAP SHOWING SUBDIVISION OF LANDS

BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, IN THE CITY OF

FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT MAP RECORDED IN BOOK 11, PAGE 12, OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

EXCEPTING THEREFROM, THAT PORTION OF LOT 761 DESCRIBED IN DEED RECORDED JUNE 10, 2005, AS INSTRUMENT NO. 2005-0414870, OF OFFICIAL RECORDS.

ALSO EXCEPTING THEREFROM, THOSE PORTIONS LYING WITHIN PARCEL MAP NO. 17652, RECORDED IN BOOK 217, PAGE 44, OF PARCEL MAPS.

APN: 0255-101-24-0-000, APN: 0255-101-30-0-000

EXHIBIT B
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EXHIBIT B

TO DEVELOPMENT AGREEMENT BETWEEN
THE City OF FONTANA AND CHASE JUNIPER, LP

EXHIBIT B – Map Showing Property and its location:

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EXHIBIT C

TO DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA AND CHASE JUNIPER, LP
Development Approvals

GENERAL PLAN DESIGNATION – GENERAL INDUSTRIAL (I-G)

ZONING & SPECIFIC PLAN - SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN (SWIP) & SLOVER EAST INDUSTRIAL DISTRICT

PROJECT SITE
I-G
SWIP – Slover
East Industrial
District (SED)
SWIP –
Slover
East
Industrial
District
(SED)

PROJECT SITE

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TENTATIVE PARCEL MAP

SITE PLAN

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ELEVATIONS