Agenda packet — Fontana City Council, April 23, 2024 (part 1 of 4)

Tuesday, April 23, 2024
2:00 PM
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Regular Agenda
Ord. No. 1949 Reso. No. 2024-018
Grover W. Taylor Council Chambers
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine Key - City Clerk
Janet Koehler-Brooks, City Treasurer
1 City Council Meeting Regular Agenda April 23, 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:

SPECIAL PRESENTATIONS:

A. Special Presentations
A. Mayor Pro Tem Garcia and City Council to recognize
Officers Matthew Sherwood and Steve Solis, Dispatch
Supervisor Justine Mojarro and Dispatchers Angelica
Padilla and Courtney Francis as Fontana Police
Department January 2024 Employees of the Month (Captain Binks and Administrative Support Services Manager,
Michelle Blank, to present).
21-2961

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2 City Council Meeting Regular Agenda April 23, 2024
PUBLIC COMMUNICATIONS:

This is an opportunity for members of the public to address the City Council for up to three ( 3) minutes total on items either on the Agenda or items not on the Agenda, but within the City Council's jurisdiction. Note that Public Hearing items have individual and specific public input opportunities during the public hearing and testimony on those items will only be taken during the public hearing. The Council is prohibited by law from discussing or taking immediate action on non-agendized items. The Mayor and City Council reserve the right to adjust this time limit based on the number of speakers who wish to address the Mayor and City Council .

A. Public Communications
CONSENT CALENDAR:

All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below. There will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for discussion.

Approve Consent Calendar Items as recommended by staff.

A. Approval of Minutes 21-2939
Approve the minutes of the April 9, 2024, Regular City Council Meeting.

City Council Meeting Minutes 04-09-2024.pdfAttachments:

B. Proclamation Declaring May as "National Cities, Towns, and Villages Month"
21-2962
The City Council is asked to approve a proclamation declaring May as "National Cities, Towns, and Villages Month" and to support efforts to promote community engagement and celebration throughout the month.

Proclamation - National Cities Towns and Villages Month.pdfAttachments:

C. Adoption of Ordinance No. 1943 (Second Reading), update the zoning map from Single-Family Residential ( R-1) to Medium Density Residential (R-2).
21-2972
Second Reading / Adoption of Ordinance No. 1943, approving, pursuant to a Mitigated Negative Declaration, Zoning District Map Amendment No. 20-015 to update the zoning map from Single-Family Residential (R-1) to Medium Density Residential (R-2) for four (4) parcels APNs: 0233-122-28, -29, -60 and -63.

Ord. 1943.docxAttachments:

D. Adoption of Ordinance No. 1944 (Second Reading), a
change of zoning designation from Residential Planned
Community ( R-PC) to Southwest Industrial Park (SWIP)
21-2973

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3 City Council Meeting Regular Agenda April 23, 2024
Specific Plan, Slover East Industrial District.

Second Reading / Adoption of Ordinance No. 1944, approving, pursuant to the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Fontana Business Center 3 project, Zoning District Map Amendment No. 23-002 to change the zoning designation for APNs:
0255-101-24 and -30 from Residential Planned Community (R-PC) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 1.6 acres located on the east side of Juniper Avenue, south of Santa Ana Avenue.

Ord. 1944.docxAttachments:

E. Adoption of Ordinance No. 1945 (Second Reading), a
Specific Plan Amendment to the Southwest Industrial Park (SWIP)
21-2975
Second Reading / Adoption of Ordinance No. 1945, approving, pursuant to the project Mitigated Negative Declaration and Mitigation Monitoring and Report Program, Specific Plan Amendment No. 23-001, an amendment to the Southwest Industrial Park (SWIP) Specific Plan to include 1.6 acres in the Slover East Industrial District on the east side of Juniper Avenue, south of Santa Ana Avenue.

Ord. 1945.docxAttachments:

F. Adoption of Ordinance No. 1946 (Second Reading), a
Development Agreement between the City of Fontana and
Chase Partners.
21-2974
Second Reading / Adoption of Ordinance No. 1946, 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.

Ord. 1946.docxAttachments:

G. Adoption of Ordinance No. 1947 (Second Reading), a
zoning change from Community Commercial ( C-1) to Light Industrial (M-1)
21-2976
Second Reading / Adoption of Ordinance No. 1947, Approving, pursuant to an adopted Mitigated Negative Declaration and approved Mitigation Monitoring and Reporting Program for the Citrus and Boyle Project, Zoning District Map Amendment No. 22-009 to change the zoning designation for APN: 0251-151-10 from Community Commercial (C-1) to Light Industrial (M-1) for approximately 0.9 acres located on the north side of Slover Avenue, east of Citrus Avenue.

Ord. 1947.docxAttachments:

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4 City Council Meeting Regular Agenda April 23, 2024
H. Adoption of Ordinance No. 1948 (Second Reading), a
Development Agreement between the City of Fontana and
Chipt Fontana Citrus Avenue, L.P.
21-2977
Second Reading / Adoption of Ordinance No. 1948, Approving, pursuant to an adopted Mitigated Negative Declaration, a Development Agreement No. 23-096 between the City of Fontana and Chipt Fontana Citrus Avenue, L.P., which provides a public benefit fee in the amount of $49,722.00.

Ord. 1948.docxAttachments:

I. Contractor Substitution Due to Job Abandonment and
Bankruptcy from Previously Awarded Construction
Contract for Public Works Concrete Maintenance Project
(SB-107-PW-23)
21-2888
Approve and authorize the City Manager to execute a construction contract with Gentry General Engineering, Inc for the remaining work required to complete the construction of Public Works Concrete Maintenance Project in the amount of $168,840.00 (Bid No. SB-107-PW-23).

Gentry General Engineering, Inc Cost ProposalAttachments:

J. Approve an Agreement with the Inland Empire Utilities Agency, Speedway SBC Development, LLC, and San
Bernardino County for Wastewater Services for Speedway
SBC Development, LLC
21-2971
Approve and authorize the City Manager to execute an agreement with the Inland Empire Utilities Agency (“IEUA”), Speedway SBC Development, LLC, and San Bernardino County (“County”) for wastewater services for Speedway SBC Development, LLC.

Final Sewer Agreement with IEUA_County_Speedway
(3-1-24).pdf
Wastewater Connection Location.pdf
Project Location.pdf
Attachments:

K. Fontana Community Senior Center Beauty Salon Lease
Agreement
21-2935

1. To authorize the Community Services Department to enter into a lease agreement with Boss Hair Studios to offer hair styling, nail and retail services at the Fontana Community Senior Center.

2. Authorize the City Manager or his designee to execute any documents necessary to effectuate said agreement.

Beauty Salon Lease Agreement 2024-Boss Hair Studio
Final.doc
Attachments:

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5 City Council Meeting Regular Agenda April 23, 2024
L. Acceptance of Parcel Map No. 19712 and Abandonment of a Certain Portion of Right of Way of Coyote Canyon Road and Lytle Creek Road
21-2938
Accept Parcel Map No. 19712 located northwest of Interstate 15 (I-15) and west of Sierra Avenue, along the south side of Lytle Creek Road, accept as public dedicated streets and easements, and authorize the Mayor and City Clerk to certify the abandonment of a certain portion of right of way of Coyote Canyon Road and Lytle Creek Road.

Parcel Map 19712.pdf
Vicinity Map.pdf
Attachments:

M. Approve a Bond Reduction for Tract No. 17041 - Lot 2 (In-tract Improvements) located within the Citrus Heights North Specific Plan (Shady Trails)
21-2940
Approve a reduction of the Faithful Performance Bond, Labor and Material Bond, and the Warranty Bond posted by Taylor Morrison of California, LLC . for Tract 17041 - Lot 2, for the in-tract improvements consisting of street, street light, storm drain, and sewer, located within the Citrus Heights North Specific Plan (Shady Trails).

Bonds - Tract 17041-Lot 2.pdf
Tract 17041.pdf
Vicinity Map.pdf
Attachments:

N. Fontana Auto Center - Pylon Sign Refurbishment 21-2941

1. Authorize City Manager to complete upgrades to the Fontana Auto Center pylon signage in the amount of $127,710.
10-3-23 Revised 12 brands per face ART R2 OPY-58333 -
Fontana Auto Center.pdf
Est_849_from_ElectraMedia_Inc._7076.pdf
Attachments:

O. Issuance of Special Tax Bonds for CFD #111 (Monterado) 21-2946 Adopt Resolution No. 2024-018, of the City Council of the City of Fontana authorizing the issuance of City of Fontana Community Facilities District No. 111 (Monterado) Special Tax Bonds, Series 2024, in an aggregate principal amount of not to exceed $8,000,000, authorizing the execution and delivery of an Indenture, a Bond Purchase Agreement and a Continuing Disclosure Agreement, authorizing the distribution of an Official Statement in connection therewith and authorizing the execution of necessary documents and certificates and related actions.

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6 City Council Meeting Regular Agenda April 23, 2024
Resolution Authorizing Issuance
Preliminary Official Statement
Indenture
District Continuing Disclosure Agreement
Bond Purchase Agreement
Appraisal Report
Attachments:

P. Fontana Expanded Learning Program Services Agreement 21-2949 Approve the Fontana Expanded Learning Program Services Agreement.

City of Fontana FUSD FELP Contract 2024-2027 - final.pdfAttachments:

Q. Approve the Sale of Real Property by the Successor
Agency to the City of Fontana
21-2954
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.Highland.docAttachments:

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. Ordinance No. 2024-1949: 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 HS Fontana Retail, LLC,
21-2842

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7 City Council Meeting Regular Agenda April 23, 2024
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 Council adopt Ordinance No. 2024-1949; and

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 HS Fontana Retail, LLC, based upon the findings in the staff report and ordinance, pending adoption of an Operating Agreement with HS Fontana Retail, LLC.

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

Attachment No. 1 Vicinity Map.docx
Attachment No. 2 Ordinance.docx
Attachment No. 3 Notice of Exemption.docx
Attachment No. 4 Public Hearing Notice for City
Council.docx
Attachments:

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports
ADJOURNMENT:

A. Adjournment
Adjourn to the next Regular City Council Meeting on May 14, 2024 at 2:00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.

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8 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2961 Agenda Date: 4/23/2024
Agenda #: A. Category: Special Presentation
Special Presentations
Tuesday, April 23, 2024
Council Chambers
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesse “Jesus” Sandoval, Council Member
Phillip W. Cothran, Council Member
City of Fontana Printed on 4/15/2024Page 1 of 1
powered by Legistar™
9 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2939 Agenda Date: 4/23/2024
Agenda #: A. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Approval of Minutes
RECOMMENDATION:

Approve the minutes of the April 9, 2024, Regular City Council Meeting.

COUNCIL GOALS:
· Create and maintain a dynamic team by supporting the decisions of the majority once made.
· Create and maintain a dynamic team by communicating Goals and Objectives to all commissions and employees.

DISCUSSION:

The City Council will consider approval of the minutes of the April 9, 2024, Regular City Council Meeting. The draft minutes are attached to this report for Council review and approval.

FISCAL IMPACT:

None.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/18/2024Page 1 of 1
powered by Legistar™
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City of Fontana

8353 Sierra Avenue
Fontana, CA 92335

Minutes

Tuesday, April 9, 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

Page 2 of 12 ends

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, April 9, 2024.

Mayor Warren called the Regular City Council Meeting to order at 2:03 p.m.

ROLL CALL:

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

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

ABSENT: Council Member Sandoval

INVOCATION/PLEDGE OF ALLEGIANCE:

A. Invocation/Pledge of Allegiance:

The invocation was given by Council Member Roberts, followed by the pledge of allegiance led by Mayor Pro Tem Garcia.

SPECIAL PRESENTATIONS:

A. Special Presentations
Mayor Warren and City Council recognized Officer Derrick Tamanaha and Records Supervisors Vanessa Hernandez and Annette Logan as Fontana Police Department’s December 2023 Employees of the Month/Employees of the Year.

Mayor Warren and City Council recognized Plans Examiner I Lauren Reynosa as the 2024 Building and Safety Employee of the Year.

PUBLIC COMMUNICATIONS:

A. Public Communications

Mayor Warren read a statement from the City regarding Planned Parenthood.

The following individuals spoke under public communications:

Angela Garcia of the West Valley Water District invited the community to attend their Earth Day Celebration on April 20th.
12

Page 3 of 12 ends

Danielle Holley of the Fontana Chamber of Commerce discussed their third quarter events along with recent and upcoming events.

Brock Champion of the Fontana Exchange Club discussed their scholarship program and thanked the City for their partnership. Also invited the community to attend the Fontana Days Parade and Fontana Days Carnival.

Susana Morales spoke in opposition of Planned Parenthood.

Ellen Miller spoke in opposition of Planned Parenthood.

Rebecca P. spoke in opposition of Planned Parenthood.

Maria P. spoke in opposition of Planned Parenthood.

Mark Richichi spoke in opposition of Planned Parenthood.

Catherine Contreras spoke in opposition of Planned Parenthood.

Evan Webb spoke in support of Planned Parenthood.

Paul Reyes spoke in opposition of Planned Parenthood.

Mary Kay Woodward spoke in opposition of Planned Parenthood.

Jose Valdez spoke in opposition of Planned Parenthood.

CONSENT CALENDAR:

Prior to the motion being made, Mayor Warren stated that Item E would be continued to the next meeting.

ACTION: Motion was made by Council Member Roberts, seconded by Mayor Pro T em Garcia, and passed by a vote of 4-0 to approve Consent Calendar Items “A-D” and “F-L.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: None; ABSTAIN: None; ABSENT: Sandoval

A. Approval of Minutes 21-2919
Approve the minutes of the March 26, 2024, Regular City Council Meeting.

B. Adoption of Ordinance No. 1942 (Second Reading) 21-2931 Adopt Ordinance No. 1942 on Second Reading, an Ordinance of the City Council of the City of Fontana, amending Article III to Chapter 7 of Fontana Municipal Code Regarding Electronic and Paper Methods of Filing Campaign Disclosure Statements.
13

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C. Award Bid for Pool Maintenance Services (PW-24-144-SP) 21-2910

1. Award bid and authorize the City Manager to execute a contract with Service First of Santa Ana, CA for City-Wide Pool Maintenance Services for two (2) years with three (3) one-year extension in the amount of $580,859 annually.

2. Approve and authorize the City Manager to execute any future contract amendments to the contract with Service First for City-Wide Pool Maintenance Services.

D. Award a Construction Contract for the McDermott Soccer Field 21-2916 Iron Fencing Removal and Installation Project (PW-24-139-CC) Award construction bid and authorize the City Manager to execute a construction contract with Dash Construction Company, Inc. for the McDermott Soccer Field Iron Fencing Removal and Installation Project (PW-24-139-CC) in the amount of $172,400.00 and authorize 10% contingency in the amount of $17,240.00.

E. Approve an Agreement with the Inland Empire Utilities Agency, 21-2917 Speedway SBC Development, LLC, and San Bernardino
County for Wastewater Services for Speedway SBC
Development, LLC
Approve and authorize the City Manager to execute an agreement with the Inland Empire Utilities Agency (“IEUA”), Speedway SBC Development, LLC, and San Bernardino County (“County”) for wastewater services for Speedway SBC Development, LLC.

F. Police Department Monthly Information Update 21-2918 Accept the Police Department monthly information update for February 2024.

G. Resolution of Intent to form Community Facilities District No. 21-2925 113 (The Gardens Phase 2).

1. Adopt Resolution No. 2024-012, of the City Council of the City of Fontana of Intention to Establish a Community Facilities District and to Authorize the Levy of Special Taxes.

2. Adopt Resolution No. 2024-013, of the City Council of the City of Fontana to Incur Bonded Indebtedness of the Proposed City of Fontana Community Facilities District No. 113 (The Gardens Phase Two).

H. Resolution of Intent to Form Community Facilities District No. 21-2928 114M (Tract 20512)

1. Adopt Resolution No. 2024-014, declaring the intention of the City 14

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Council of the City of Fontana to form the City of Fontana Community Facilities District No. 114M.

I. Approve Change Orders to the Equipment Purchase Agreement 21-2932 (SP-71-IT-23) for Stage RED Theater’s Audio Visual System Update

1. Approve and authorize the City Manager to execute Change Order No. 1, 2 and 3 to the Equipment Purchase Agreement (SP-71-IT-23) with Matrix Audio Visual Designs, Inc. in the amount of $131,829.55 for a total contract of $1,067,013.42 for the Stage Red audio visual system upgrades.

2. Approve and authorize the City Manager to execute any future amendments to the Agreement.

J. FY 2022 Emergency Management Performance Grant Program 21-2934 Award (EMPG)

1. Accept the FY 2022 Emergency Management Performance Grant in the amount of $39,853.

2. Authorize the Emergency Services Coordinator to sign all related grant documents including extensions or modifications for the grant; and expend funds as outlined in the grant agreement.

3. Approve the City’s in-kind match of $39,853.

4. Approve to increase revenues and appropriation in the amount of Emergency Management Performance Grant to fund #301.

K. Fundraiser Event Approval 21-2937
Council Consider Approval of Fundraising Event.

L. Award a Contract for the Interior Renovation for Stage RED 21-2942

1. Award bid and authorize the City Manager to execute a lump sum construction contract with Final Touch Construction for the Stage Red Interior remodel 2A (Bid No. DE-24-25-SB) in an amount not to exceed $1,575,000.

2. Approve an authorize the City Manager to execute all non-material contract amendments on behalf of the City of Fontana for the renovation of Stage RED.

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PUBLIC HEARINGS:

A. First Combined General Plan Amendments and Projects for the 21-2864 1st General Plan Cycle of 2024; Part No. 1 - Monte Vista Residential Project and associated Mitigated Negative
Declaration, Part No. 2 - Fontana Business Center and
associated Mitigated Negative Declaration, and Part No. 3 - Citrus and Boyle Industrial Commerce Center and associated Mitigated Negative Declaration.

Part No. 1 - Monte Vista Residential Project

Master Case No. 20-073: General Plan Amendment No. 20-015, Zoning District Map Amendment No. 20-015, Conditional Use Permit No. 22-013, Tentative Tract Map No. 20-006 (TTM No. 20358), and Design Review No. 20-028 for property comprised of APNs: 0233-122-28, -29, -60, -63 Amendment of the subject site’s General Plan land use designation from Single-Family Residential (R-SF) to Medium Density Residential (R-M), amendment of the Zoning District Map from Single -Family Residential (R-1) to Medium Density Residential (R-2) , a Conditional Use permit to establish the minimum requirements and specific site development standards under a Planned Unit Development for a 53-lot single- family residential project, a Tentative Tract Map to subdivide four (4) parcels for the development of a 53-lot subdivision, and Design Review for the site and architectural review of a new 53-lot single-family detached residential project within a site comprised of approximately

8.8 acres, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program.

1a) Adopt Resolution No. 2024-015, (Part No. 1 of General Plan Amendment Cycle No. 1 of 2024,) a Resolution of the City Council of the City

of Fontana adopting a Mitigated Negative Declaration, approving a Mitigation Monitoring and Reporting Program pursuant to the California Environmental Quality Act (CEQA) and approving General Plan Amendment (GPA) No. 20-015 (Part No. 1 of General Plan Amendment Cycle No. 1 of 2024) amending Exhibit 15.8 of General Plan Chapter 15 (Land Use, Zoning and Urban Design) to change the land use designation from Single-Family Residential (R-SF) to Medium Density Residential (R-M) for APNs:
0233-122-28, -29, -60 and -63 totaling approximately 8.8 acres located between Poplar Avenue and Catawba Avenue, south of Orchid Avenue, and approving Conditional Use Permit No. 22- 013 to establish a Planned Unit Development, Tentative Tract Map No. 20-006 (TTM No. 20358) to subdivide four (4) parcels (approximately 8.8 acres) for the development of a 53- lot subdivision, and Design Review No. 20-028 for the construction of a 53-lot single-family residential detached dwellings on four parcels, APNs:
0233-122-28, -29, -60 and -63, totaling approximately 8.8 acres, subject to 16

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the Conditions of Approval, and;
1b) Read by title only and waive further reading of and introduce Ordinance No. 1943, an Ordinance of the City Council of the City of Fontana, approving, pursuant to a Mitigated Negative Declaration, Zoning District Map Amendment No. 20-015 to update the zoning map from Single-Family Residential (R-1) to Medium Density Residential (R-2) for four (4) parcels APNs: 0233-122-28, -29, -60 and -63, and that the reading of the title constitutes the first reading thereof.

Associate Planner Jon Dille provided the staff report.

City Clerk Key stated that there was no written correspondence received.

Mayor Warren opened the public hearing.

With no one interested to speak in favor or opposition of this item Mayor Warren closed the Public Hearing.

ACTION: Motion was made by Mayor Pro Tem Garcia , seconded by Council Member Cothran and pass ed by a vote of 4 -0 to approve staff recommendation on Public Hearing Item “A” Part 1 . The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: None; ABSTAIN: None; ABSENT: Sandoval

Part No. 2 - Fontana Business Center 3 Project

Master Case No. 23-013: General Plan Amendment (GPA) No. 23-001, Zoning District Map Amendment (ZCA) No. 23-002, Specific Plan Amendment (SPA) No. 23-001, Tentative Parcel Map No. 23-003 (TPM No. 20795), Administrative Site Plan (ASP) No. 23-006 and Development Agreement No. (AGR) 23-001 for property comprised of APNs:
0255-101-24 and 0255-101-30 - Amendment of the subject site’s General Plan land use designation from Residential Planned Community (R-PC) to General Industrial (I-G), amendment of the Zoning District Map from Residential Planned Community (R-PC) to Southwest Industrial Park Specific Plan (SWIP), a Specific Plan Amendment to include the project site in the Southwest Industrial Park Specific Plan (SWIP), a Tentative Parcel Map for the consolidation of two (2) parcels into one (1) parcel, an Administrative Site Plan for the site and architectural review of a 33,585 square foot industrial commercial center building within a project site comprised of approximately 1.6 acres, and a Development Agreement including provision for a public benefit fee, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program.

2a) Adopt Resolution No. 2024-016, (Part No. 2 of General Plan

Amendment Cycle No. 1 of 2024,) a Resolution of the City Council of the City of Fontana adopting a Mitigated Negative Declaration, approving a Mitigation Monitoring and Reporting Program pursuant to the California Environmental 17

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Quality Act (CEQA), and approving General Plan Amendment No. 23-011 (Part No. 2 of General Plan Amendment Cycle No. 1 of 2024) amending Exhibit 15.8 of General Plan Chapter 15 (Land Use, Zoning, and Urban Design) to change the land use designation from Residential Planned Community (R-PC) to General Industrial (I-G) for APNS: 0255-101-24 and -30 totaling approximately 1.6 acres located on the east side of juniper Avenue, south of Santa Ana Avenue, and approving Tentative Parcel Map No. 23-002 (TPM No. 20795) to consolidate two (2) parcels into one (1) parcel, and Administrative Site Plan No. 23-006 for the construction of an approximately 33,585 square foot industrial commerce building on approximately 1.6 acres, subject to the Conditions of Approval; and,

2b) Read by title only and waive further reading of and introduce Ordinance No. 1944, an Ordinance of the City Council of the City of Fontana, approving, pursuant to the Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program for the Fontana Business Center 3 project, Zoning District Map Amendment No. 23-002 to change the zoning designation for APNs:
0255-101-24 and -30 from Residential Planned Community (R-PC) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 1.6 acres located on the east side of Juniper Avenue, south of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,

2c) Read by title only and waive further reading of and introduce Ordinance No. 1945, an Ordinance of the City Council of the City of Fontana, approving, pursuant to the project Mitigated Negative Declaration and Mitigation Monitoring and Report Program, Specific Plan Amendment No. 23-001, an amendment to the Southwest Industrial Park (SWIP) Specific Plan to include 1.6 acres in the Slover East Industrial District on the east side of Juniper Avenue, south of Santa Ana Avenue, and that the reading of the title constitutes the first reading thereof; and,

2d) Read by title only and waive further reading of and introduce Ordinance No. 1946, 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, and that the reading of the title constitutes the first reading thereof.

Associate Planner Cecily Session-Goins provided the staff report.

Council Member Cothran asked if it was possible to relocate the entrance so the warehouse does not have to be accessed by passing South Fontana Park.

Associate Planner Cecily Session -Goins stated that traffic was not anticipated around the warehouse.

City Clerk Key stated that there was no written correspondence received.

Mayor Warren opened the public hearing.

Page 9 of 12 ends

With no one interested to speak in favor or opposition of this item Mayor Warren closed the Public Hearing.

ACTION: Motion was made by Council Member Roberts , seconded by Council Member Cothran and passed by a vote of 4 -0 to approve staff recommendation on Public Hearing Item “A” Part 2 . The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: None; ABSTAIN: None; ABSENT: Sandoval

Part No. 3 - Citrus and Boyle Industrial Commerce Center Project

Master Case No. 22-115: General Plan Amendment (GPA) No. 22-009, Zoning District Map Amendment (ZCA) No. 22-009, Tentative Parcel Map No. 22-029 (TPM No. 20834), Design Review (DRP) No. 22-054 and Development Agreement (AGR) No. 22-096 for property comprised of APNs: 0251- 151-03 through -07, -09 and - 10, -14 through - 16, -18 through -22, and -39 through -44 - Amendment of the General Plan land use designation for APN: 0251 -151-10 from Community Commercial (C-C) to Light Industrial (I -L) and amendment of the Zoning District Map for APN 0251 -151-10 from Community Commercial (C -1) to Light Industrial (M -1), and a Tentative Parcel Map for the consolidation of twenty-one (21) parcels into one parcel, and Design Review for site and architectural review to construct a 355,995 square foot industrial commerce bu ilding within a project site comprised of approximately

15.84 acres (APNs: 0251- 151-03 through - 07, -09 and - 10, -14 through -16, -18 through - 22, and - 39 through - 44), and a Development Agreement including provision for a public benefit fee, pursuant to a Mitigated Negative Declaration and Mitigation Monitoring and Reporting Program.

3a) Adopt Resolution No. 2024-017, (Part No. 3 of General Plan Amendment Cycle No. 1 of 2024,) a Resolution of the City Council of the City of Fontana adopting a Mitigated Negative Declaration and approving a Mitigated Monitoring and Reporting Program pursuant to the California Environmental Quality Act (CEQA), and approving General Plan Amendment No. 22-009 (Part No. 3 of General Plan Amendment Cycle No. 1 of 2024), amending Exhibit 15.8 of General Plan Chapter 15 (Land Use, Zoning, and Urban Design) to change the land use designation from Community Commercial (C-C) to Light Industrial (I-L) for APN: 0251-151-10 totaling approximately 0.9 acres of land located on the north side of Slover Avenue and east of Citrus Avenue, Tentative Parcel Map No. 22-029 (TPMM No. 20834) to consolidate twenty-one parcels into one (1) parcel and Design Review No. 22-054 for the development of a 355,995 square foot industrial commerce center building on APNs 0251-151-03 though -07, -09 and -10, -14 through -16, -18 through -22 and -39 through -44 totaling approximately

15.84 acres located north of Slover Avenue, east of Citrus Avenue, subject to the Conditions of Approval; and,

3b) Read by title only and waive further reading of and introduce Ordinance No. 1947, an Ordinance of the City Council of the City of Fontana, pursuant to 19

Page 10 of 12 ends

an adopted Mitigated Negative Declaration and approved Mitigation Monitoring and Reporting Program for the Citrus and Boyle Project, Zoning District Map Amendment No. 22-009 to change the zoning designation for APN: 0251-151-10 from Community Commercial (C-1) to Light Industrial (M-1) for approximately 0.9 acres located on the north side of Slover Avenue, east of Citrus Avenue, and that the reading of the title constitutes the first reading thereof; and,

3c) Read by title only and waive further reading of and introduce Ordinance No. 1948, an Ordinance of the City Council of the City of Fontana, approving, pursuant to an adopted Mitigated Negative Declaration, a Development Agreement No. 23-096 between the City of Fontana and Chipt Fontana Citrus Avenue, L.P., which provides a public benefit fee in the amount of $49,722.00, and that the reading of the title constitutes the first reading thereof.

Associate Planner Irene Romero provided the staff report.

Council Member Cothran asked how the delivery trucks driving east on Slover Avenue would be able to access the site due to the median and inability to make a left turn from Slover Avenue.

Associate Pla nner Irene Romero stated that left-turn pockets would be located along Slover Avenue to provide access.

Council Member Cothran asked why the truck dock doors were located on Slover Avenue instead of Boyle Avenue.

Deputy City Manager Phillip Burum stated the recent sustainability ordinance update required dock doors to face away from sensitive receptors which were located on the north si de of Boyle Avenue.

Mayor Warren opened the public hearing.

City Clerk Key stated that t he City Clerk’s Department received two (2) written correspondences in opposition of this item and one (1) in support which were provided to the Council in advance.

The following individuals spoke in opposition:

1. Alfonso Avalos

2. Debbie Hemphill

The following individuals spoke in favor:

1. Rafael Legido, of the Western States RCC Local 909

2. Vicki Duran

3. Joseph Quezada

Jonathan Shardlow, representative for the applicant, addressed concerns and discussed attempts to reach out to property owners along Oleander Avenue. Also stated that his firm was willing to consider any offers from property owners.

Page 11 of 12 ends

Mr. Shardlow st ated for the record that the applicant would consider entering into an agreement with any adjacent and continuous property owner west of Oleander A venue at a price that was within 25 percent of the appraised value. Noted this offer could be considered a voluntary condition of approval or an agreement that was rea d into the record depending o n the City’s preference.

City Attorney Ruben Duran did not recommend including the offer as a condition of approval since the agreement was between the developer and the property owners.

Applicant George Garcia, discussed the proposed project, stated they were excited to move the project forward and thanked the Council for their support.

Mayor Warren closed the public hearing.

ACTION: Motion was made by Mayor Pro Tem Garcia , seconded by Council Member Roberts and passed by a vote of 4-0 to approve staff recommendation on Public Hearing Item “A” Part 3 . The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES: None; ABSTAIN: None; ABSENT: Sandoval

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications

City Manager Matthew Ballantyne did not have any comments.

ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports

City Treasurer Koehler-Brooks had no comments.

City Clerk Key had no comments.

Council Member Roberts had no comments.

Council Member Cothran invited all to attend the Flag Football fundraiser on April 12th and Chamber Luncheon on April 11th. Wished his brother Robert and sister -in-law Stephanie a happy anniversary. Also wished his brother Robert a happy birthday.

Mayor Pro Tem Garcia discussed the recent Spaggi's ribbon cutting ceremony and encouraged all to dine there.

Mayor Warren congratulated Fontana High School student Lucia Otanez for being awarded Amazon's Future Engineer Scholarship for $40,000. Also welcomed new Fontana Postmaster Christopher Italia who thanked the Mayor and Council for their support. Mayor Warren also encouraged any resident with a damaged mailbox to contact her via the City's website. La stly, she asked the community to donate towards the Cruz Family's Go Fund Me page and at tend 21

Page 12 of 12 ends

the Women's Flag Football fundraiser game on April 12 th. Also noted that County Supervisor Jesse Armendarez would be at the event.

ADJOURNMENT:

A. Adjournment
Mayor Warren adjourned the meeting at 4:11 p.m. to the next Regular City Council Meeting on Tuesday, April 23, 2024, at 2 :00 p.m. in the Grover W. Taylor Council Chambers located at 8353 Sierra Avenue, Fontana, California.

_____________________
Christina Rudsell, CMC
Deputy City Clerk

THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL ON APRIL 23, 2024.

_______________________
Germaine Key
City Clerk

22 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2962 Agenda Date: 4/23/2024
Agenda #: B. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Proclamation Declaring May as "National Cities, Towns, and Villages Month" RECOMMENDATION:

The City Council is asked to approve a proclamation declaring May as "National Cities, Towns, and Villages Month" and to support efforts to promote community engagement and celebration throughout the month.

COUNCIL GOALS:
· Increase citizen involvement by informing the public about issues, programs, and accomplishments.
· Create and maintain a dynamic team by supporting the decisions of the majority once made.

DISCUSSION:

The City Council recognizes the vital role that cities, towns, and villages play in the fabric of our society, providing places for people to live, work, and thrive. In celebration of these communities and their contributions to our collective well-being, the Council proposes declaring the month of May as "National Cities, Towns, and Villages Month."
Cities, towns, and villages are the building blocks of our society, each with its own unique character, history, and significance. They provide essential services, infrastructure, and opportunities for residents to connect, engage, and prosper. By declaring May as "National Cities, Towns, and Villages Month," we aim to highlight the importance of these communities and encourage participation in activities that promote community spirit and cooperation.

FISCAL IMPACT:

None
MOTION:

Approve staff’s recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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23 24
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2972 Agenda Date: 4/23/2024
Agenda #: C. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1943 (Second Reading), update the zoning map from Single-Family Residential (R-1) to Medium Density Residential (R-2).

RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1943, approving, pursuant to a Mitigated Negative Declaration, Zoning District Map Amendment No. 20-015 to update the zoning map from Single- Family Residential (R-1) to Medium Density Residential (R-2) for four (4) parcels APNs: 0233-122-28, -29, -60 and -63.

COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention, and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.

DISCUSSION:

Ordinance No. 1943 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

No fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
powered by Legistar™
25

Page 1 of 6 ends

ORDINANCE NO. 1943

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

APPROVING, PURSUANT TO A MITIGATED NEGATIVE
DECLARATION, ZONING DISTRICT MAP AMENDMENT NO. 20-015 TO

UPDATE THE ZONING MAP FROM SINGLE-FAMILY RESIDENTIAL (R- 1) TO MEDIUM DENSITY RESIDENTIAL (R-2) FOR FOUR (4) PARCELS APNS: 0233-122-28; -29, -60, AND -63 TOTALING APPROXIMATELY

8.8 ADJUSTED GROSS ACRES.

WHEREAS, assessor parcel numbers 0233-122-28; -29, -60, and -63, include four (4) parcels that were annexed from San Bernardino County and incorporated into the City of Fontana. The four (4) parcels were annexed on September 19, 2006 (the “Project Site”); and
WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”) and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, on August 26, 2020, the City of Fontana (“the City”) received an application from Monte Vista Assets, Inc (“Applicant”), for four (4) existing lots on the southeast corner of Orchid Avenue and Poplar Avenue and continues to the west side of Catawba Avenue, more specifically known as APNs: 0233 -122-28; -29, -60, and -63, (“Project Site”), for a General Plan Amendment (“GPA No. 20 -015”) to amend the land use designation illustrate on Exhibit 15.8 in Chapter 15 of the General Plan from Single - Family Residential (R-SF) to Medium Density Residential (R-M) for the Project Site, and a Zoning District Map Amendment (“ZCA No. 20-015”) to amend the Zoning District Map from Single -Family Residential (R -1) map to Medium Density Residential (R -2) for approximately 8.8 acres and Conditional Use Permit (“CUP No . 22-013”) to establish a Planned Unit Development (PUD), Tentative Tract Map (“TPM No. 20-006”) to subdivide four (4) parcels into 53 lots, and Design Review (“DR No. 20 -028”) for site and architectural review for a new 53 -lot single -family detached residential project with associated on-site and off-site improvements on APNs: 0233 -122-28; -29, -60, and -63.

Both amendments together are known as Master Case Number (“MCN 20 -073”). All of the amendments together are known as Master Case Number 20 -073 (“MCN NO. 20 - 073”); and,

WHEREAS, the amendments to the Zoning District Map will contribute to additional residential dwelling units that will provide a sustainable community where future occupants of the Project Site could live and utilize the services in the area as anticipated in the General Plan; and

WHEREAS, the amendment to the Zoning District Map will assist the City in meeting its Regional Housing Needs Assessment (RHNA) numbers. This change will increase the unit count from the existing maximum of 44 residential units (8.8 acres x 5.0 units/acre 26 Ordinance No. 1943

Page 2 of 6 ends

= 44) compared to a maximum of 66 residential units (8.8 acres x 7.6 units/acre = 66); and
WHEREAS, the amendment to the Zoning District Map will contribute to a balanced and diverse neighborhood and associated amenities and services, as well as contribute to an infrastructure that will support a qualified workforce and attract business; and WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and WHEREAS, pursuant to the California Environmental Act (CEQA), an Initial Study/Mitigated Negative Declaration (IS/MND) and Mitigation Monitoring and Reporting Program (MMRP) were published December 22, 2023, and concluded that with mitigation, no significant impacts would be caused by the project, therefore, a Mitigated Negative Declaration has been recommended for adoption; and WHEREAS, all the notices required by statute and the Fontana City Code have been given as required; and,
WHEREAS, on January 16, 2024, the Fontana Planning Commission (“Planning Commission”) conducted a publicly noticed hearing and received public testimony and evidence presented by the Applicant, City staff, and other interested parties, at the Public Hearing held on the project, Mitigated Negative Declaration (MND), Mitigation Monitoring and Reporting Program (MMRP) and MCN 20 -073, and recommended approval with a vote of 3-0 to the City Council by Resolution PC No. 2024-003; and WHEREAS, on April 9, 2024, the City Council conducted a noticed public hearing on the project, MND, MMRP, and MCN 20 -073 and received testimony from all parties and documentation from the Planning Commission’s public hearing on January 16, 2024; and WHEREAS, on April 9, 2024, the City Council, per Resolution 2024 -015 adopted the MND along with the MMRP for the project; and
WHEREAS, based on the evidence and testimony presented to the City Council at public hearing held on April 9, 2024, for the project, MND, MMRP and MCN 20 -073, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan as referred herein.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES ORDAIN AS FOLLOWS:

SECTION 1. Recitals. The recitals are true, correct and incorporated herein by this reference.

Page 3 of 6 ends

record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration.

Therefore, pursuant to State CEQA section 15189 through 15190 and Section 6.18 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.

SECTION 3. Zoning District Map Amendment Findings. The City Council hereby makes the following findings for ZCA No. 20 -015 in accordance with Section 30- 40 “Purpose” of the Fontana Zoning and Development Code:

Finding: The Zoning and Development Code may be amended by changing the development s tandards (text) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.

Findings of Fact: The project includes an amendment to the Zoning District Map to change the zoning map for the location of the Project Site from Residential-Single Family (R-1) to Medium Density Residential (R-2) for approximately 2.4 adjusted gross acres total.

The zoning district map amendment is consistent with the goals and policies of the Housing Element in the General Plan. The project is consistent with the following goals of the Housing Element:
 Provide adequate housing to meet the needs of all residents in Fontana.
 Provide a high standard of quality in existing affordable housing stock.

Furthermore, the project will meet the following policies of the Housing Element of the General Plan:

 Goal No.1, Policy No. 1.1, by providing a “Establish a range of rental and for sale housing opportunities in the city” and  Goal No. 1, Policy No. 1.3 – “Promote the development and access to housing affordable to all income levels in Fontana.” The amendment will present an opportunity for development to be constructed at a higher density which will allow the City to have a wider variety of housing types for residents. This amendment will increase the unit count and provide an opportunity for attainable or 28 Ordinance No. 1943

Page 4 of 6 ends

market rate housing. Also, this amendment will assist the City in meeting its Regional Housing Needs Assessment (RHNA) number.

This change will increase the unit count from the existing maximum of 44 residential units to 66 res idential units. The amendment will increase the potential residential unit count by 22 units.

SECTION 4. Zoning District Map Amendment Approval. Based upon the findings in Section 3, ZCA No. 20-015, the Zoning District Map will be amended from Single-Family (R-1) to Medium Density (R -2) on the zoning district map, is necessary to protect or promote the public’s health, safety, or general welfare, and is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and is consistent with the General Plan.

SECTION 5. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from the passage thereof, shall be published by the City Clerk at least once in the Fontana Herald News, a local newspaper of the general circulation, published and circulated in the City of Fontana, and henceforth and thereafter the same shall be in full force and effect.

SECTION 6. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodia n or records is the City Clerk.

SECTION 7. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.

SECTION 8. Severability. If any provision of this Ordinance or the application of any such provision to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application.

APPROVED AND ADOPTED this 23rd 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:
29 Ordinance No. 1943

Page 5 of 6 ends

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk

30 Ordinance No. 1943

Page 6 of 6 ends

“EXHIBIT A”

EXISTING AND PROPOSED ZONING LAND USE DESIGNATION - FOR THE ENTIRE PROJECT SITE COMPRISED OF FOUR (4) PARCELS (APNS: 0233-122-28; -29, -60, AND
-63) FROM SINGLE-FAMILY RESIDENTIAL (R-1) TO MEDIUM DENSITY (R-2)

31 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2973 Agenda Date: 4/23/2024
Agenda #: D. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1944 (Second Reading), a change of zoning designation from Residential Planned Community (R-PC) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District.

RECOMMENDATION:

COUNCIL GOALS:
· Promote economic development by concentrating on job creation. · Promote economic development by pursuing business attraction, retention and expansion. · Provide a diverse range of housing types and levels of affordability while addressing homelessness in the community by promoting diverse range of housing projects and levels of affordability.
· Enhance the local environment for future generations and create a healthy economic and environmental future by creating neighborhoods that are attractive, safe and convenient for walkers and bicyclists.

DISCUSSION:

Ordinance No. 1944 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

No fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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32 ORDINANCE NO. 1944

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

APPROVING, PURSUANT TO THE MITIGATED NEGATIVE DECLARATION

AND MITIGATION MONITORING AND REPORTING PROGRAM FOR THE FONTANA BUSINESS CENTER 3 PROJECT, ZONING DISTRICT MAP
AMENDMENT NO. 23 -002 TO CHANGE THE ZONING DESIGNATION FOR APNS 0255-101-24 AND -30 FROM RESIDENTIAL PLANNED COMMUNITY (R-

PC) TO SOUTHWEST INDUSTRIAL PARK (SWIP) SPECIFIC PLAN, SLOVER EAST INDUSTRIAL DISTRICT FOR APPROXIMATELY 1.6 ACRES LOCATED ON THE EAST SIDE OF JUNIPER AVENUE, SOUTH OF SANTA ANA AVENUE.

WHEREAS, Assessor Parcel Numbers: 0255 -101-24 and -30 were annexed from San Bernardino County and incorporated into the City of Fontana on Nove mber 23, 1964 and September 19, 2006; and

WHEREAS, on November 13, 2018, the most recent edition of the City of Fontana General Plan (“General Plan”) was adopted by the Fontana City Council (“City Council”) and the City of Fontana Housing Element was adopted by the City Council on February 8, 2022; and
WHEREAS, on April 10, 2023, the City of Fontana (“City) received an application from Chase Partners (“Applicant”) for a General Plan Amendment (GPA) No. 23-001, Zone Change Application (ZCA) No. 23 -002, Specific Plan Amendment (SPA) No. 23-001, Development Agreement (DA) No. 23-001, Administrative Site Plan (ASP) No. 23-006, and Tentative Parcel Map (TPM) No. 20795 (TPM No. 23 -006) - a request for the site and architectural review for the construction of one (1) industrial commerce center totaling 33,585 square feet on a 1.6 acre site; and a Development Agreement No. 23-001 to include a review of the development agreement for a public benefit fee of $150,896.25. All of the amendments together are known as Master Case Number 23-013 (“MCN 23-013”); and

WHEREAS, on March 19, 2024, the Fontana Planning Commission (“Planning Commission”) received public testimony and evidence presented by the Applicant, City staff, and other interested parties at a public heari ng held on the Fontana Business Center 3, Mitigated Negative Declaration (“MND”) and Mitigation Monitoring and Reporting Program (“MMRP”) and MCN No. 23 -013. After carefully considering all information pertaining to the project, recommended approval of the Project to the Fontana City Council (“City Council”); and

WHEREAS, the amendments to the Zoning District Map will contribute to mixture of industrial, service, and residential uses that will contribute to a sustainable community where future workers at the project site could live and utilize the services in the area as anticipated in the General Plan; and

WHEREAS, all the notices required by statute and the Fontana City Code have

Page 1 of 5 ends

33 Ordinance No. 1944

Page 2 of 5 ends

been given as required; and

WHEREAS, on March 19, 2024, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing for the project MND, MMRP, and MCN 23- 013, received public testimony and evidence presented by the Applicant, City staff, and other interested parties and recommended approval to the City Council by Resolution No. 2023-023 by a vote of 4-0; and

WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and

WHEREAS, on April 9, 2024, the City Council conducted a duly noticed public hearing on the project MND and MMRP and MCN No. 23-013, received testimony from all parties and documentation from the Planning Commission’s public hearing on March 19, 2024; and

WHEREAS, an amendment to the boundaries of the SWIP specific plan and zoning classifications would allow for the development of an industrial commerce building; and

WHEREAS, the subject property is to be developed below the assumed capacity as identified in the approved Housing Element, however there is still sufficient capacity in the city at the “above moderate” income category to meet the City’s Regional House Needs Assessment (RHNA) allocation; and

WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held for the project MND, MMRP, and MCN 23-013, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES ORDAIN AS FOLLOWS:

SECTION 1. Recitals. The recitals are true, correct and incorporated herein by this reference.

SECTION 2. CEQA. Having considered the adopted Mitigated Negative Declaration and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the Project has been addressed within the Mitigated Negative Declaration, and that there is no substantial evidence in the administrative record supporting a fair argument that the Proje ct may result in any significant environmental impacts beyond those analyzed in the Mitigated Negative Declaration. Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.
34 Ordinance No. 1944

Page 3 of 5 ends

SECTION 3. Zoning District Map Amendments Findings. The City Council hereby makes the following findings for ZCA No. 23 -002 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:

Finding: The Zoning and Development Code may be amended by changing the development standards (text ) or zoning
designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when
modification is viewed as appropriate in the context of generally accepted plann ing principles, surrounding land uses, and the General Plan.

Findings of Fact: The Applicant is proposing to change the zoning designation from R-PC to SP in order to include the Subject Property into the Slover East Industrial District (SED) of the SWIP. This would allow for the construction of a 33,585 square foot industrial commerce center building. The development will assist with the growing industrial commerce demand in the City of Fontana and the surrounding area. The zone change, and correspon ding specific plan amendment will provide consistency with the existing
development to the south and west of the Subject Property and will provide safe and attractive development.

SECTION 4. Zoning District Map Amendment Approval. The City Council approves ZCA No. 23 -002 to amend the zoning designation for APNs: 0255 -101-24 and -30 from Residential Planned Community (R -PC) to Southwest Industrial Park (SWIP) Specific Plan, Slover East Industrial District for approximately 1.6 acres as shown on Exhibit “A” which is attached hereto and incorporated herein.

SECTION 5. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from the passage thereof, shall be p ublished by the City Clerk at least once in the Fontana Herald News, or a local newspaper of the general circulation, published and circulated in the City of Fontana, and henceforth and thereafter the same shall be in full force and effect.

SECTION 6. Custodian of Records . The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.

SECTION 7. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.

SECTION 8. Severability. If any provision of this Ordinance or the application of 35 Ordinance No. 1944

Page 4 of 5 ends

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 23rd 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
36 Ordinance No. 1944

Page 5 of 5 ends

“EXHIBIT A”

EXISTING AND PROPOSED ZONING MAP DESIGNATION -

RESIDENTIAL PLANNED COMMUNITY (R-PC) AND TO SOUTHWEST

INDUSTRIAL PARK (SWIP) SPECIFIC PLAN, SLOVER EAST INDUSTRIAL

DISTRICT

Project Site
Residential
Planned
Community (R-PC)
Project Site
SP – Southwest
Industrial Spark
Specific Plan
37 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2975 Agenda Date: 4/23/2024
Agenda #: E. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1945 (Second Reading), a Specific Plan Amendment to the Southwest Industrial Park (SWIP)
RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1945, approving, pursuant to the project Mitigated Negative Declaration and Mitigation Monitoring and Report Program, Specific Plan Amendment No. 23-001, an amendment to the Southwest Industrial Park (SWIP) Specific Plan to include 1.6 acres in the Slover East Industrial District on the east side of Juniper Avenue, south of Santa Ana Avenue.

DISCUSSION:

Ordinance No. 1945 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

No fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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38 ORDINANCE NO. 1945

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA APPROVING, PURSUANT TO THE PROJECT MITIGATED

NEGATIVE DECLARATION (MND) AND MITIGATION, MONITORING

AND REPORTING PROGRAM (MMRP), SPECIFIC PLAN AMENDMENT
NO. 23 -001, AN AMENDMENT TO THE SOUTHWEST INDUSTRIAL
PARK (SWIP) SPECIFIC PLAN TO INCLUDE 1.6 ACRES IN THE

SLOVER EAST INDUSTRIAL DISTRICT (SED) ON THE EAST SIDE OF JUNIPER AVENUE, SOUTH OF SANTA ANA AVENUE.

WHEREAS, the City of Fontana (the “City”) received an application on April 10, 2023 from Chase Partners (“Applicant”) for a General Plan Amendment (GPA No. 23 - 001) to amend the General Plan land use designation for 1.6 acres of land located on the east side of Juniper Avenue, south of Santa Ana Avenue from Residential Planned Community (R-PC) to General Industrial (I-G) and to modify Exhibit 15.8 (Land Use Map) of the General Plan to reflect the same; Specific Plan Amendment (SPA No. 23 -001) to amend the Southwest Industrial Park (SWIP) Specific Plan Slover Industrial District (SED) to include the project site; Development Agreement (AGR No. 23 -001) to include an agreement for the payment of a public benefit fee; Tentative Parcel Map (TPM No. 23 - 003) (T PM No. 20795) for the consolidation of two (2) parcels into one parcel; and Administrative Site Plan (ASP No. 23-006) for the development of an industrial commerce building totaling approximately 33,585 square feet along with site improvements for APNs 0255-101-24 and -30. The amendments together are known as Master Case No. 23-013 (“MCN 23-013”); and

WHEREAS, SPA No. 23-001 will allow the development of an industrial commerce center building totaling approximately 33,585 square feet and associated on-site and off- site improvements; and
WHEREAS, on March 19, 2024, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing and received public testimony and evidence by the Applicant, City staff, and other interested parties for MCN 23 -013 and Mitigated Negative Declaration (MND) and Mitigation Monitoring and Reporting Program (MMRP).

After carefully considering all information pertaining to the project, the Planning Commission voted 4 -0 to recommend approval to City Council ( “City Council”) by Resolution No. PC 2024-023; and
WHEREAS, on April 9, 2024, the City Council held a noticed public hearing on the MND, MMRP, and MCN No. 23-013, received testimony from all parties and documentation from the Planning Commission’s public hearing on March 19, 2024; and WHEREAS, on April 9, 2024, the City Council adopted the MND and MMRP; and WHEREAS, based on the information presented to the City Council at the public hearing held on April 9, 2024, the City Council found that the amendments and project are in conformance with the goals and policies of the General Plan to provide a community that is balanced between residential, commercial, and industrial uses, is developed with high standards, and provides diverse economic and social opportunities for our citizens and those who wish to invest in the City.

Page 1 of 4 ends

39 Ordinance No. 1945

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES ORDAIN AS FOLLOWS:

SECTION 1. Recitals. The recitals are true, correct and incorporated herein by this reference.

SECTION 2. CEQA. Having considered the adopted MND and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the Project have been addressed within the MND, and that there is no substantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the MND. Therefore, pursuant to State CEQA section 15189 through 15190 an d Section 6.18 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA, the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.

SECTION 3. Findings. The City Council hereby mak es the following findings for Specific Plan Amendment No. 23-001 in accordance with Section 30-67 “Purpose” of the Fontana Zoning and Development Code:

Finding: A Specific Plan may be amended by changing the development standards or zoning designation of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety or general welfare or when modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.

Findings of Fact: The applicant is proposing to include the Subject Property in the SED of SWIP for the purpose of developing an approximately 33,585 square foot industrial commerce center building. The inclusion in the specific plan area will make the zoning consistent with properties to the south and east. The property north of the Subject Property is developed with a United States Postal Service post office and the property east of the site is developed with a “big box” retail building.

The amendment to the SWIP Specific Plan is consistent with nearby land uses and will not be detrimental to any of the surrounding land uses.

SECTION 4. Approval. Based on the findings in Section 3, Specific Plan Amendment No. 23-001 is hereby approved, and the Southwest Industrial Park Specific Plan is amended to establish the project within the Slover East Industrial District as shown on Exhibit “A”, attached hereto and by this reference incorporated herein.

Page 2 of 4 ends

40 Ordinance No. 1945

of Fontana, and henceforth and thereafter the same shall be in full force and effect.

SECTION 7. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.

APPROVED AND ADOPTED this 23rd 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 2 3rd day of April 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

Page 3 of 4 ends

EXHIBIT “A”

SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT

EXISTING

SOUTHWEST INDUSTRIAL PARK SPECIFIC PLAN LAND USE MAP AMENDMENT

PROPOSED
Santa Ana Ave.

Southwest Industrial Park Specific
Plan (SWIP) – Slover East Industrial
District (SED)

Project Site

Residential Planned
community (R-PC)

Southwest Industrial Park Specific Plan (SWIP) –
Slover East Industrial District (SED)
Santa Ana Ave.

Southwest Industrial Park Specific
Plan (SWIP) – Slover East Industrial
District (SED)
Project Site

Southwest Industrial
Park Specific Plan
(SWIP) – Slover East
Industrial District
(SED)

Southwest Industrial Park Specific Plan (SWIP) –
Slover East Industrial District (SED)
Juniper Ave. Juniper Ave.
42 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2974 Agenda Date: 4/23/2024
Agenda #: F. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1946 (Second Reading), a Development Agreement between the City of Fontana and Chase Partners.

RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1946, 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.

DISCUSSION:

Ordinance No. 1946 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

The project includes a Development Agreement that provides for a public benefit fee of $150,896.25.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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43 38 Page 1 of 5
ORDINANCE NO. 1946

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 cost s 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 Development 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 sec tion 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

44 38 Page 2 of 5
Ordinance No. 1946

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 develop ment 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 p ublic 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 Dev elopment 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 Development Agreement, the City Council has reviewed and considered the adopted IS/MND, any oral or written comments received, and the administrative record 45 38 Page 3 of 5
Ordinance No. 1946

prior to making any decis ion 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 to the City Council, the City Council finds that the Development Agreement is in the best interests of the City, and represents good land use practices, as it ensures the orderly development of the Property with amenities and infrastructure that will be beneficial to the community. 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 conformity with the public convenience, general welfare and good land use practice;

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

(vi) the Development Agreement will not adversely affect the orderly development or the preservation of property values for the Property or any other property. 46 38 Page 4 of 5
Ordinance No. 1946

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

1. The revitalization of an underdeveloped site.

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

3. The generation of additional property tax.

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

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

The payment of a public benefit fee from the Developer to the City to offset certain private benefits received by Developer under the 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 competent 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.
47 38 Page 5 of 5
Ordinance No. 1946

APPROVED and ADOPTED this 23rd day of April 2024.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney

AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk
48 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

JUNIPER PROJECT
Space Above This Line for Recorder's Use Only
Exempt from Recording Fees Pursuant
to Gov. Code §§ 27383, 6103

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
49 -1-

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 development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, Owner has requested that City enter into this Development Agreement with respect to that certain real property located on the east side of Juniper Avenue and south of Santa Ana Avenue in the City, consisting of 2 parcels identified as Assessor’s Parcel Numbers (APNs) 0255-101-24 & 0255 -101-30, as more particularly described on Exhibit “A” and shown on Exhibit “B” to this Agreement (the “Property”), and proceedings have been taken in accor dance with the rules and regulations of City; and
WHEREAS, by electing to enter into this Agreement, City shall bind the City, including current and future City Councils of City, by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of City; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development Approvals described in this Agreement, the City Council has revi ewed and considered the Environmental Impact Report and made findings concerning the mitigation measures and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and City CEQA Guidelines; and WHEREAS, Owner has filed an application for, and the City Council has approved, General Plan Amendment (GPA) No. 23 -001, Specific Plan 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 th e Project are consistent with the City's Comprehensive General Plan and Specific Plan (as defined in Section 1 below), as amended; and WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
50 -2-

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

COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consi deration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:

1. DEFINITIONS AND EXHIBITS

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

1.1.1 "Agreement" means this Development Agreement.

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

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

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

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

1.1.6 "Development Approvals" means all permits and other entitlements subject to approval or issuance by City in connection with the Development of the Property as set forth in attached Exhibit C, including, but not limited to: general plan amendments; specific 51 -3-

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

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

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

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

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

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

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

1.1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of City governing the development and use of land, including, without limitati on, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construct ion standards and specifications applicable to the Development of the Property. "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation, or official 52 -4-

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

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

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

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

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

1.1.18 "Property" means the certain real property located on Juniper Avenue in the City, consisting of two parcels identified as Assessor’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 this Agreement and reserved to City under Section 3.6 of this Agreement.

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

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

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:
53 -5-

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

2. GENERAL PROVISIONS

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

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

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

2.4 Sale or Assignment.

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

Any sale, transfer or assignment not made in compliance with the foregoing conditions shall constitute a default by Owner under this Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute this agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. Notwithstanding the foregoing, Owner shall have the right to transfer its interest in this Agreement to an “Owner Affiliate.” An “Owner Affiliate” is an entity in which the original owner owns a majority financial or voting interest. 54 -6-

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

2.4.2 Release of Transferring Owner . Notwithstanding any sale, transfer or assignment, Owner shall continue to be obligated under this Agreement as to that portion of the Property sold, transferred or assigned, unless Owne r is given a release in writing by City, which release shall be provided by City upon the full satisfaction by Owner of all of the following conditions:

of the Property sold.
(a) Owner no longer has a legal or equitable interest in all or any part

(b) Owner is not then in default under this Agreement.
(c) Owner has provided City with the notice and executed agreement required under paragraph (2) of subsection 2.4.1(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, transfer or assignment after an initial sale, transfer or assignment shall be made on ly in accordance with and subject to the terms and conditions of this Section.

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

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

Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordat ion of any further document upon satisfaction of both of the following conditions:
(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
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(b) A certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

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

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

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

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

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

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

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

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

2.6.7 Notwithstanding any provision herein to the contrary, 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 bee n constructed on the Property pursuant to the Development Plan or otherwise.

2.7 Notices.

2.7.1 As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder. 56 -8-

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

If to City:

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

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
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:

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

3. DEVELOPMENT OF THE PROPERTY

3.1 Rights to Develop. Subject to the terms of this Agreement, including the Reservations of Authority, Owner shall have the vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Proj ect as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedicat ion of land for public purposes shall be those set forth in the Development Plan. Notwithstanding the foregoing, nothing contained in this Agreement shall be deemed to be a covenant to develop or construct the Project or any portion of the Project.

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

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

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

3.5 Changes and Amendments.

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

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

3.5.2 Unless otherwise required by law, as determined in City's reasonable discretion, a change to the Existing Development Approvals shall be deemed "minor" and not 58 -10-

require an amendment to this Agreement; but instead will require only the approval of City's Director of Planning; provided the change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
(f) Alter the findings of the applicable environmental document. (g) The provisions of this Agreement require a close degree of cooperation between the City and the Owner. It is anticipated due to the term of this Agreement that refinements to the Development Approvals may be appropriate with respect to the details of performance of the City and the Owner. To the extent allowable by law, the Owner shall retain a certain degree of fl exibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement and exhibits thereto. When and if the Owner finds it necessary or appropriate to make changes, adjustments or clarifications, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda (“Operating Memoranda”) approved by the Parties in writing, which reference this Section of the Agreement.

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

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations and fees and 59 -11-

expenses shall apply to the Development of the Property (collectively, the "Reservations of Authority"):
(a) Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure.
(c) Regulations governing construction standards and specifications, including, without limitation, the City's Building Code, Plumbing Code, Mechanical Code, Electrical Code, and Fire Code.
(d) Regulations imposing Development Exactions; In years one (1) through five (5) during Term of this Agreem ent, no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the City or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction within the aforementioned timeframe shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, City shall allow a credit against such subsequentl y adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes.
(e) Regulations that may be in conflict with the Development Plan but that are reasonably necessary to eliminate or mitigate a serious threat to public health and safety.

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

Any regulation, whether adopted by initiative or otherwise, 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 shall not prevent City, in acting on Subsequent Development Approvals , from applying Subsequent Land Use Regulations that do not conflict with the Development Plan subject to 3.6.1(f), nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existi ng Land Use Regulations or on the basis of any Subsequent Land Use Regulation which does not conflict with the Development Plan. Upon approval of any Subsequent Development Approval, such Subsequent Development Approval shall be deemed 60 -12-

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

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

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

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

3.8 Provision of Real Property Interests by City. In any instance where Owner is required to construct any public improvement on land not owned by Owner, Owner shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvemen ts. In the event Owner is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by Owner and upon Owner’s provision of adequate security for costs City may reasonably incur, City shall negotiate the purchase of the necessary real property interests to allow Owner to construct the public improvements as require d by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. Owner shall pay all costs associated with such acquisition or condemnation procee dings. This section 3.8 is not intended by the parties to impose upon the Owner an enforceable duty to acquire land or construct any public improvements on land not owned by Owner, except to the extent that the Owner elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the City upon the development of the Project under the Subdivision Map Act or other legal authority.

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

3.10 Tentative Tract Map Extensions. Notwithstanding the provisions of Section 66452.6 of the Government Code, no tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be granted an extension of time except in accordance with the Existing Land Use Regulations. 61 -13-

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

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

4. PUBLIC BENEFITS

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

4.2 Development Impact Fees.

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

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

4.3 Public Benefit Fee.

4.3.1 As consideration for City's approval and performance of its obligations as set forth in this Agreement, Owner agrees to pay to the City a one -time public benefit fee in the amount of Four Dollars and Twenty five Cents ($4.25) per building square foot, whic h is estimated to be One Hundred Fifty Thousand, Eight Hundred 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 square footage, prior to the issuance of any building permit for the Project, and Own er shall pay the Public Benefit Fee to the City prior to the issuance of any building permit for the Project.
62 -14-

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

5. FINANCING OF PUBLIC IMPROVEMENTS.

If deemed appropriate, City and Owner will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation o f public infrastructure facilities required as part of the Development Plan. City also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, Owner may be reimbursed to the extent that Owner spends funds or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring City or the Ci ty 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 Section 65865.1, the Director of Planning will review this Agreement annually, on or before each anniversary o f the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Agreement. Owner shall submit an Annual Monitoring Report, in a form acceptable to the Director of Planning, within 30 days after written notice from the P lanning Director. The Annual Monitoring Report shall be accompanied by an annual review and administration fee sufficient to defray the estimated costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council.

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

6.2.1 During either an annual or special review. Owner will be required to demonstrate its good faith compliance with this Agreement. The burden of proof on this issue shall be on Owner.
63 -15-

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

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

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

7. PROCEEDINGS FOR MODIFICATION OR TERMINATION.

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

7.1.1 The time and place of the hearing;

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

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

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

7.3 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, Owner is found to be in compliance with this Agreement, City shall, upon request by Owner, issue a Certificate of Agreement Compliance (“Certificate”) to Owner stating that after the most recent Periodic or Speci al Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the 64 -16-

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

Whether or not the Certificate is relied upon by assignees or other transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, bu t was concealed from or otherwise not known to the Planning Director or City Council.

8. DEFAULT AND REMEDIES

8.1 Remedies in General. The parties agree that the City would not have entered into this Agreement if it were to be liable for damages under this Agreem ent, or with respect to this Agreement or the application itself.

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

8.2 Specific Performance.

8.2.1 The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Monetary damages are unavailable against City as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such time, Owner may be precluded from other options it may have had with regard to the Property or any portions thereof. Moreover, Owner has invested significant time and resources in the planning and processing of the Project. Owner will be investing even more time and resources in implementing the Project in reliance upon thi s Agreement and it is not possible to determine the sum of money that would adequately compensate Owner for such efforts.
65 -17-

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

8.4 City's Termination of Agreement or Exercise of Other Remedies Upon Owner's Default. City may terminate or modify this Agreement as to all or a portion of the Property upon Owner's failure to perform any material duty or obligation under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "default"); provided, however, City may modify or terminate this Agreement purs uant to this Section only after providing written notice to Owner of default setting forth the nature of the default and the actions, if any, required by Owner to cure such default and, where the default can be cured, if Owner fails to cure the default wit hin sixty (60) days after its receipt of the notice, or if the default is of a type that cannot be cured within sixty (60) days but can be cured within a longer time, and Owner fails to commence the actions necessary to cure the default within sixty (60) days and to diligently proceed to cure the default.

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

8.6 Informal Resolution. The parties recognize that good faith disagreements may arise between City and Owner during the administration and implementation of this Agre ement.

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

9. THIRD PARTY LITIGATION

9.1 General Plan Litigation. City has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Owner has reviewed the General Plan and concurs with City’s determination.

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

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

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

9.4 Deposit of Legal Defense Costs. In the event of any litigation or legal challenge filed against City as described in this Section 9, then withi n twenty (20) calendar days following written demand by City therefor, Owner shall deposit with City funds into a deposit account maintained by City (“Fund”) to reimburse City for City’s costs and expenses, including without limitation attorney’s fees, ult imately 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 amount necessary to cover not less than three (3) months of budgeted or anticipated expenditures by City relating to City’s defense of such claim, action, or proceeding, including any and all appeals from decisions related thereto, as such 67 -19-

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

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

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

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

10. MORTGAGEE PROTECTIONS
The parties hereto agree that this Agreement s hall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Prope rty. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith a ny such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreeme nt. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Owner in the performance of Owner's obligations under this Agreement.
68 -20-

(c) If City timely receives a request from a Mortgagee requesting a copy of any no tice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed Owner under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, sh all take the Property, or part thereof, subject to the terms of this Agreement.

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

11. MISCELLANEOUS PROVISIONS

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

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

11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, vo id or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the public benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions, and theref ore 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 sha ll be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of 69 -21-

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained 71 -23-

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

No. 6638).

11.20 Authority to Execute. The person or persons executing this Agreement on behalf of Owner warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership, or busine ss entity and warrants and represents that he or she/they has/have the authority to bind Owner to the performance of its obligations hereunder.
[Signatures on following pages]
72 -24-

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

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

ATTEST:

By:

Germaine Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

Ruben Duran, City Attorney
73 -25-

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.

ACKNOWLEDGMENT

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)
74 -26-

ACKNOWLEDGMENT

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)
75 -1-

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 A
76 -1-

EXHIBIT B

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

EXHIBIT B – Map Showing Property and its location:

EXHIBIT B
77 -37-

EXHIBIT C

TO DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA AND CHASE JUNIPER, LP
Development Approvals

GENERAL PLAN DESIGNATION – GENERAL INDUSTRIAL (I-G)

PROJECT SITE

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)
78 -38-

TENTATIVE PARCEL MAP

SITE PLAN

79 -39-

ELEVATIONS

80 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2976 Agenda Date: 4/23/2024
Agenda #: G. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1947 (Second Reading), a zoning change from Community Commercial (C-1) to Light Industrial (M-1)
RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1947, Approving, pursuant to an adopted Mitigated Negative Declaration and approved Mitigation Monitoring and Reporting Program for the Citrus and Boyle Project, Zoning District Map Amendment No. 22-009 to change the zoning designation for APN: 0251-151-10 from Community Commercial (C-1) to Light Industrial (M-1) for approximately 0.9 acres located on the north side of Slover Avenue, east of Citrus Avenue.

DISCUSSION:

Ordinance No. 1947 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

No fiscal impact.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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81 ORDINANCE NO. 1947

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

APPROVING, PURSUANT TO AN ADOPTED MITIGATED NEGATIVE

DECLARATION AND APPROVED MITIGATION MONITORING AND

REPORTING PROGRAM FOR THE CITRUS AND BOYLE PROJECT,
ZONING DISTRICT MAP AMENDMENT NO. 22 -009 TO CHANGE THE ZONING DESIGNATION FOR APN 0251 -151-10 FROM COMMUNITY
COMMERCIAL (C -1) TO LIGHT INDUSTRIAL (M -1) FOR
APPROXIMATELY 0.9 ACRES LOCATED ON THE NORTH SID E OF
SLOVER AVENUE, SOUTH OF BOYLE AVENUE.

WHEREAS, Assessor Parcel Number (“APNS”) 0251 -151-10 was annexed from San Bernardino County and incorporated into the City of Fontana on January 25, 1974 and September 19, 2006; and

WHEREAS, on August 29, 2022, the City of Fontana (“City) received an application from MIG, Inc. (“Applicant”) for a General Plan Amendment (GPA No. 22 - 009) to change the General Plan land use designation for APN 0251 -151-10 from Community Commercial to Light industrial, Zone District Code Map Amendment (ZCA No. 22 -009) to change the Zoning District Code Map for APN 0251 -151-10 from Community Commercial (C -1) to Light Industrial (M -1), Tentative Parcel Map (Tentative Parcel Map No. 22 -029 (TPM No. 20834)) to consolidate twenty -one (21) parcels into one parcel, Design Review (DRP No. 22-054) for the site and architectural review for the construction of one (1) industrial commerce center totaling 355,995 square feet on a 15.8 acre site; and a Development Agreement (AGR No. 23 -096) to include a review of the development agreement for a public benefit fee of $49,722. The amendments together are known as Master Case Number 22-115 (“MCN 22-115”) (or “Project”); and

WHEREAS, the amendment to the Zoning District Map will contribute to a mixture of uses that will contribute to a sustainable community where residents of the City could live and work as anticipated in the General Plan; and

WHEREAS, the Zoning District Map Amendment is considered a “Project” as defined by the California Environmental Quality Act (CEQA); and

WHEREAS, pursuant to CEQA, the City prepared an Initial Study/Mitigated Negative Declaration (“IS/MND”) and Mitigation Monitoring and Reporting Program (“MMRP”), which concluded that, with mitigation, no significant impacts would result from the project. The IS/MND was published for public comment from February 27, 2024 and concluded that, with the implementation of recommended mitigation measures, the Project would have no significant impacts on the environment and, therefore, the Mitigated Negative Declaration (“MND”) has been recommended for adoption; and
WHEREAS, all the notices required by statute and the Fontana City Code have

Page 1 of 5 ends

Ordinance No. 1947

Page 2 of 5 ends

been given as required; and,

WHEREAS, on March 19, 2024, the Fontana Planning Commission (“Planning Commission”) held a noticed public hearing for the project, specifically the Initial Study/Mitigated Negative Declaration (“IS/MND”), Mitigation Monitoring and Reporting Program MMRP, and MCN 22-115, received public testimony and evidence presented by the Applicant, City staff, and other interested parties and recommended adoption of the IS/MND and approval of the MMRP and MCN 22 -115 to the City Council with a vote of 4-0 by Resolution No. 2024-019; and

WHEREAS, on April 9, 2024, the Fontana City Council (“City Council”) conducted a duly noticed public hearing on the project IS/MND and MMRP and MCN No. 22-115, received testimony from all parties and documentation from the Planning Commission’s public hearing on March 19, 2024; and

WHEREAS, based on the evidence and testimony presented to the City Council at the public hearing held for the project IS/MND, MMRP, and MCN 22 -115, the City Council found that the amendments and project comply with CEQA and are in conformance with the goals and policies of the General Plan.

NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF FONTANA, CALIFORNIA DOES ORDAIN AS FOLLOWS:

Section 1. Recitals. The recitals are true, correct and incorporated herein by this reference.

Section 2. CEQA. Having considered the adopted MND and all written and oral evidence presented to the City Council, the Council finds that all environmental impacts of the Project have been addressed within the MND, and that there is no sub stantial evidence in the administrative record supporting a fair argument that the Project may result in any significant environmental impacts beyond those analyzed in the adopted MND. Therefore, pursuant to State CEQA section 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the City Council finds that the preparation of a subsequent or supplemental CEQA document is not required for the Project.

Section 3. Zoning District Map Amendments Findings. The City Council hereby makes the following findings for ZCA No. 22 -009 in accordance with Section 30 -40 “Purpose” of the Fontana Zoning and Development Code:

Finding: The Zoning and Development Code may be amended by changing the development standards (text) or zoning
83 Ordinance No. 1947

Page 3 of 5 ends

designation map boundaries of any zone whenever such an amendment is deemed necessary to protect or promote the public's health, safety, or general welfare or when
modification is viewed as appropriate in the context of generally accepted planning principles, surrounding land uses, and the General Plan.

Findings of Fact: A Zoning District Map amendment to change the land use of APN 0251-151-10 from C -1 to M -1 would accommodate the
development of an industrial commerce center building totaling 355,995 square feet. This project will provide attractive development with quality modern architecture with additional landscaping. This type of development is appropriate in the context o f generally accepted planning principles, surrounding land uses and the General Plan because it enhances the
surrounding area with an attractive street scene and high -quality landscaping. This type of development will be consistent with the areas to the south and east.

Section 4. Zoning District Map Amendment Approval. The City Council approves ZCA No. 22-009, to amend the zoning designation for the Project Site from C-1 to M -1 for approximately 0.9 acres as shown on Exhibit “A” which is attached hereto and incorporated herein.

Section 5. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption and prior to the expiration of fifteen (15) days from the passage thereof, or after the adoption of the City Council Ordinance approving Development Agreement No. 23-096, whichever occurs later, provided however, if the Ordinance approving the Development Agreement is for any reason held to be invalid or unconstitutional by the decision of any court of competent 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 6. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.

Section 7. Certification. The City Clerk of the City Council shall certify to the adoption of this Ordinance.

Section 8. Severability. If any provision of this Ordinance or the application of any such provision to any person or circumstance is held invalid, such invalidity shall 84 Ordinance No. 1947

Page 4 of 5 ends

not affect other provisions or applications of this Ordinance that can be given effect without the invalid provision or application.

APPROVED AND ADOPTED this 23rd 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 n ot less than five days thereafter on the 23rd day of April 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
85 Ordinance No. 1947

Page 5 of 5 ends

“EXHIBIT A”

EXISTING ZONING MAP DESIGNATION
COMMUNITY COMMERCIAL (C-1)

PROPOSED ZONING MAP DESIGNATION
LIGHT INDUSTRIAL (M-1)

86 City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2977 Agenda Date: 4/23/2024
Agenda #: H. Category: Consent Calendar
FROM:

Planning Department
SUBJECT:

Adoption of Ordinance No. 1948 (Second Reading), a Development Agreement between the City of Fontana and Chipt Fontana Citrus Avenue, L.P.

RECOMMENDATION:

Second Reading / Adoption of Ordinance No. 1948, Approving, pursuant to an adopted Mitigated Negative Declaration, a Development Agreement No. 23-096 between the City of Fontana and Chipt Fontana Citrus Avenue, L.P., which provides a public benefit fee in the amount of $49,722.00.

DISCUSSION:

Ordinance No. 1948 was introduced by a vote of 4-0 at the April 9, 2024, Regular City Council meeting.

FISCAL IMPACT:

The project includes a Development Agreement that provides for a public benefit fee of $49,722.00.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 1 of 1
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87

Page 1 of 41 ends

ORDINANCE NO. 1948

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA APPROVING, PURSUANT TO AN ADOPTED

MITIGATED NEGATIVE DECLARATION, A
DEVELOPMENT AGREEMENT NO. 23-096 BETWEEN THE

CITY OF FONTANA AND CHIPT FONTANA CITRUS
AVENUE, L.P., WHICH PROVIDES A PUBLIC BENEFIT
FEE IN THE AMOUNT OF $49,722.00

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, CHIPT FONTANA CITRUS AVENUE, L.P. (“Developer”) has proposed to enter into a Development Agreement (AGR No. 23-096” or “Development Agreement”), attached hereto as “Exhibit A” and incorporated herein by reference, concerning the real property located at Slover Avenue and Boyle Avenue, more specifically referred to as A ssessor Parcel Numbers 0251-151-03 through -07, -09 and -10, -14 through -16, -18 through -22, and -39 through -44 (“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 AGR No. 23 -096, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and

WHEREAS, the 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 Development Agreement No. AGR23 -096, constitutes a legal or equitable interest in real property pursuant to California Government Code section 65865; and

WHEREAS, Developer proposes the development of the Property for one industrial building totaling approximately 355,995 square feet, including up to 7,000

88 Ordinance No. 1948

Page 2 of 41 ends

square feet of office space to achieve the goals of the City's General Plan ("General Plan"), as further described in Development Agreement AGR No. 23 -096 (collectively, such development shall be referred to herein as the "Project"); and WHEREAS, City desires the timely, efficient, orderly and proper development of the Project in furtherance of the goals of the General Plan; and

WHEREAS, City has found that Development AGR No. 23-096 is consistent with City's General Plan; and

WHEREAS, on April 9, 2024, pursuant to the California Environmental Quality Act (Pub. Res. Code §§ 21000 et seq.) (“CEQA”), and the State CEQA Guidelines (14 Cal.

Code Regs. §§ 15000 et seq.) the City Council approved the Initial Study/Mitigated Negative Declaration (IS/“MND”) and approved the Mitigation Monitoring and Reporting Program (“MMRP”); and

WHEREAS, City has determined that by entering into the Development Agreement: (i) City will promote orderly growth and quality development on the Property in accordance with the goals and policies set forth in the General Plan and (ii) City will benefit from increased employment and industrial opportunities created by the Project for residents of the City; and
WHEREAS, on April 9 , 2024 , a duly noticed public hearing on Development Agreement AGR No. 23 -096 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. 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 Development Agreement, the City Council has reviewed and considered the previously adopted IS/MND, any oral or written comments received, and the administrative record prior to makin g 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 89 Ordinance No. 1948

Page 3 of 41 ends

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 6.0 4 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA the Council finds that the preparation of a subsequent or supplemental environmental review is not required for the Development Agreement.

(i) the economic interests of the City's citizens and the public health, safety and welfare will be best served by entering into the Development Agreement;

(ii) the Development Agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located;

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

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

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

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

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

1. The revitalization of an underdeveloped site.
90 Ordinance No. 1948

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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 DA No. 23-096, attached hereto as “Exhibit A” and incorporated by reference herein, between CHIPT FONTANA CITRUS AVENUE, L.P., and the City of Fontana, a California municipal corporation.

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. 22 -009, whichever occurs later, provided however, if the Ordinance approving the Zoning Code Amendment is for any reason held to be invalid or unconstitutional by the decision of any court of competent 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.

APPROVED and ADOPTED this 23rd day of April 2024.

READ AND APPROVED AS TO LEGAL FORM:

City Attorney
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AYES:

NOES:

ABSENT:

ABSTAIN:

City Clerk of the City of Fontana

Mayor of the City of Fontana

ATTEST:

City Clerk
92 Ordinance No. 1948

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EXHIBIT "A"

DEVELOPMENT AGREEMENT
93 Ordinance No. 1948

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RECORDING REQUESTED BY:

Order No:

WHEN RECORDED MAIL
DOCUMENT TO:

City of Fontana
8353 Sierra Avenue
Fontana, California 92335
Attn.: City Clerk

Space Above This Line for Recorder's Use Only
Exempt from Recording Fees Pursuant
to Gov. Code§§ 27383, 6103

FONTANA CITRUS AVENUE INDUSTRIAL WAREHOUSE PROJECT
DEVELOPMENT AGREEMENT No. 23 -096

BETWEEN

THE CITY OF FONTANA,
a California municipal corporation

and
CHIPT FONTANA CITRUS AVENUE, L.P.,
a Delaware limited partnership

Dated as of April 9, 2024 for reference purposes
94 Ordinance No. 1948

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FONTANA CITRUS AVENUE INDUSTRIAL WAREHOUSE PROJECT
DEVELOPMENT AGREEMENT No. 23-096
This FONTANA CITRUS AVENUE INDUSTRIAL WAREHOUSE PROJECT DEVELOPMENT AGREEMENT No. 23 -096 ("Development Agreement and/or Agreement") is entered into by the City of Fontana, a California municipal corporation (hereinafter "City"), and CHIPT FONTANA CITRUS AVENUE, L.P., a Delaware limited partnership (hereinafter "Owner"). This Agreement is dated April 9, 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 development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and
WHEREAS, Owner has requested that City enter into this Development Agreement with respect to that certain real property located on Slover Avenue in the City, consisting of 21 parcels identified as Assessor's Parcel Numbers ("APNs") 0251-151-41, 0251-151-09, 0251-151-39, 0251-151-40, 0251-151-42, 0251-151-43, 0251-151-15, 0251-151-16, 0251-151-14, 0251-151- 19, 0251-151-20, 0251-151-21, 0251-151-22, 0251-151-10, 0251-151-44, 0251-151-07, 0251- 151-04, 0251-151-03, 0251-151-18, 0251-151-05, and 0251-151-06, as more particularly described on Exhibit "A" and shown on Exhibit "B" to this Agreement (the "Property"), and proceedings have been taken in accordance with the rules and regulations of City; and WHEREAS, by electing to enter into this Agreement, City shall bind the City, including current and future City Councils of City, by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of City; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, prior to the adoption of the Development Approvals described in this Agreement, the City Council has reviewed and considered the Mitigated Negative Declaration ("MND") and made findings concerning the mitigation measures and adopted a Mitigation Monitoring and Reporting Program ("MMRP") in accordance with CEQA and the State and City CEQA Guidelines; and
WHEREAS, Owner has filed an application for, and the City Council has approved, General Plan Amendment (GPA) No. 22-009, Zone Change Amendment (ZCA) No. 22-009, Design Plan Review (DRP) No. 22-054 and Tentative Parcel Map No.20834; and 95 Ordinance No. 1948

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WHEREAS, this Agreement and the Project are consistent with the City's Comprehensive General Plan and Zoning Code (as defined in Section 1 below), as amended; and WHEREAS, all actions taken and approvals given by City have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
WHEREAS, Development (as defined in Section 1 below) of the Property in accordance with this Agreement and Development Plan (as defined in Section 1 below) will provide substantial benefits to City and will further important policies and goals of City; and WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly Development of the Property, ensure the installation of necessary improvements, provide for public services appropriate to the Development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, Owner has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure the vesting of its legal rights to develop the Property in accordance with this Agreement and Development Plan.

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

1. DEFINITIONS AND EXHIBITS

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

1.1.1 "Agreement" means this Development Agreement.

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

1.1.3 "Owner" means CHIPT FONTANA CITRUS AVENUE, L.P., a Delaware limited partnership, and its successors in interest to all or any part of the Property.

1.1.4 "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project, including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buil dings and structures; the construction of site work and the installation of landscaping. "Development" does not include the repair, reconstruction or redevelopment of any building, structure, improvement, or facility after the construction and completion thereof if undertaken during the Term of this Agreement. 96 Ordinance No. 1948

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1.1.5 "Development Agreement Policies" means those certain development agreement policies approved by City pursuant to Ordinance No. , adopted on as may be amended, as Resolution No. ,_adopted on_,_as may be amended.

1.1.6 "Development Approval(s)" means all permits and other entitlements subject to approval or issuance by City in connection with the Development of the Property as set forth in attached Exhibit "C", including, but not limited to: general plan amendments; zone changes; tentative and final subdivision and parcel maps; design review; conditional use permits; zoning; and grading and building permits.

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

1.1.8 "Development Impact Fee" means a monetary exaction other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by City to the applicant in connection with the approval of a Development for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park "in lieu" fees specified in Government Code Section 66477, fees for processing applications for governmental regulatory actions or approvals, fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4.

1.1.9 "Development Plan" means the existing Development of the Property permitted by the Existing Development Approvals and the Existing L and Use Regulations applicable to Development of the Property.

1.1.10 "Effective Date" means the date this Agreement is recorded with the Office of the San Bernardino County Recorder.

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

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

1.1.13 "General Plan" means the General Plan adopted on [DATE] by Ordinance No. [NUMBER].

1.1.14 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of City governing the development and use of land, including, 97 Ordinance No. 1948

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without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the Development of the Property. "Land Use Regulations" do not include any City ordinance, resolution, code, rule, regulation, or official policy governing: the conduct of businesses, professions, and occupations; taxes and assessments; the control and abatement of nuisances; the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; or the exercise of the power of eminent domain.

1.1.15 "Mitigated Negative Declaration" means the Mitigative Declaration prepared for the Project.

1.1.16 "Mitigation Monitoring and Reporting Program" or "MMRP" means the mitigation monitoring and reporting program for assessing and ensuring compliance with required environmental impact mitigation measures approved by City Council Resolution No. _ ,2024 in conjunction with the City Council's certification of the MND.

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

1.1.18 "Parcel Map" means the subdivision map identified in City records as Tentative Parcel Map No. 20834 and approved by the City Council on , 2024.

1.1.19 "Project" means the Development of the Property contemplated by the Development Plan as referenced in 1.1.9, as such Development Plan may be further defined, enhanced, or modified pursuant to the provisions of this Agreement. The Project will consist of a logistics facility totaling approximately 355,995 square feet.

1.1.20 "Property" means the certain real property located on Slover Avenue in the City, consisting of 21 parcels identified as Assessor's Parcel Numbers (APNs) 0251-151-03 through-07, -09, -10, -14, -15, -16, -18, -19, -20, -21, -22, -39, -40, 41, -42, -43, and -44, as more particularly described in Exhibit "A" and shown on Exhibit "B" to this Agreement.

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

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

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

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

1.1.25 "Term" has the meaning given in Section 2.3 of this Agreement. 98 Ordinance No. 1948

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

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

2. GENERAL PROVISIONS

2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. The Development of the Property is hereby authorized and shall be carried out 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. To the extent Owner does not own fee simple title to the Property, Owner shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date, and shall continue for a period of five (5) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement.

2.4 Sale or Assignment.

2.4.1 Right to Assign. Subject to the City's written consent, which shall not be unreasonable withheld, delayed or conditioned, Owner shall have the right to sell, transfer, or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act) to any person, partnership, joint venture, affiliate, firm, or corporation at any time; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignm ent of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer, or assignment, or within fifteen (15) business days thereafter, Owner shall notify City, in writing, of such sale, transfer, or assignment and shall provide City with 1) 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 unconditionally assumes all the duties and obligations of Owner under this Agreement; and 2) the payment of the applicable processing charge to cover the CITY's review and consideration of such sale, transfer or assignment.

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purchaser, transferee or assignee to execute this Agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, tra nsferee or assignee until and unless such Agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4.

2.4.2 Release of Transferrin g Owner. Notwithstanding any sale, transfer or assignment, Owner shall continue to be obligated to the terms and conditions under this Agreement as to that portion of the Property sold, transferred or assigned, unless Owner is given a release in writing by City Manager or City Planning Director, which release shall be provided upon the full satisfaction by Owner of all of the following conditions:
(a) Owner no longer has a legal or equitable interest in all or any part of the Property sold, transferred or assigned.
(b) Owner is not then in default under this Agreement.
(c) Owner has provided City with the notice and executed assignment and assumption agreement required under Subsection 2.4.1(b) above. (d) In the event Owner still has a security instrument on file with the City at the time of transfer, the purchaser, transferee or assignee shall provide City with security equivalent to any security in place with the City and previously provided by Owner to secu re performance of its obligations hereunder.

2.4.3 Effect of Assi gnment and Release of Obli gations. In the event of a sale, transfer, or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of the Owner with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the "Retained Property"). (b) The Owner of the Retained Property shall be liable for the performance of all obligations of the Owner with respect to the Retained Property, but shall have no further obligations with respect to the transferred property. (c) The assignee's exercise, use and enjoyment of the Property or portions thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the Owner.

2.4.4 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of Section 2.4.

2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or canceled in whole or in part only by written consent of both Parties in the manner provided for in Government Code Sections 65865.1 or 65868 and the Development Agreement Policies. Any 100
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amendment of this Agreement, which amendment has been requested by Owner, shall be considered by the City only upon the payment of the applicable processing charge. This provision shall not limit any remedy of City or Owner for a Party's breach of the Agreement as provided by this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and ente ring into this Agreement in the first instance.

2.6 Termination. This Agreement shall terminate and be ofno further effect upon the occurrence of any of the following events:

2.6.l Payment of the Public Benefit Fee contained in Section 4.3.

2.6.2 Expiration of the Term ohhis Agreement as set forth herein.

2.6.3 Entry of a final judgment setting aside, voiding, or annulling the adoption of the ordinance approving this Agreement.

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

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

2.6.6 Termination by the City upon a Default by Owner, as provided in this Agreement.

2.6.7 Termination of this Agreement will not operate to automatically terminate any Development Approvals or other land use entitlements approved for the Property. Upon the termination of this Agreement, no Party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement that has occurred prior to such termination, or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4 of this Agreement by Owner to City on which construction has not yet begun shall be refunded to Owner by City.

2.6.8 The obligation of Owner to pay the Public Benefit Fee as set forth in Section

4.3 shall have been satisfied and if it has not been satisfied, then shall survive the termination of this Agreement until all buildings have been constructed on the Property pursuant to the Development Plan or otherwise.

2.7 Notices.

2.7.1 As used in this Agreement, "Notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder. 101
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2.7.2 All Notices shall be in writing and shall be considered given either:
(i) when delivered in person to the recipient named below; (ii) on the date of delivery shown on the return receipt after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, postage and postal charges p repaid, 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:

Ifto City:

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

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
Ifto Owner:

CHIPT Fontana Citrus Avenue, L.P.
527 W. 7th Street, Suite 200
Los Angeles, CA 90014
Attn: Philip J. Prassas

with a copy to:

CHIPT Fontana Citrus Avenue, L.P.
3819 Maple Avenue
Dallas, TX 75219
Attn: Lacey Sharkey
and to:

Allen Matkins Leck Gamble Mallory &
Natsis LLP
Attn: Jonathan Shardlow
2010 Main Street, 8th Floor
Irvine, CA 92614-7214
and to:

Winstead PC
500 Winstead Building
2728 N. Harwood Street
Dallas, TX 75201
Attn: Greg Zimmerman

2.7.3 Either Party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a Party or an officer or representative of a Party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
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3. DEVELOPMENT OF THE PROPERTY

3.1 Rights to Develop. Subject to the terms of this Agreement, including the Reservations of Authority, Owner shall have the vested right to develop the Property in accordance with the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement, including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to the Development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City shall exercise its reasonable discretion in the same manner that it exercises discretion under its police powers including the Reservations of Authority set forth herein. City shall accept for processing, review, and action all applications for Subsequent Development A pprovals and such applications shall be processed in the normal manner for processing such matters.

3.3 Timing of Development. The Parties acknowledge that Owner cannot at this time predict when or the rate the Property will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market 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 C al.3d 465, that the failure of the Parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such Parties' agreement, it is City's and Owner's intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan as set forth herein.

3.4 Reserved.

3.5 Changes and Amendments.

3.5.1 The Parties acknowledge that refinement and further Development of the Project may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. During the Term of this Agreement, if Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement, including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit "C" and may be further changed from time to time as provided in this Section 3.5. 103
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3.5.2 Unless otherwise required by law, as determined in City's reasonable discretion, a change to the Existing Development Approvals shall be deemed "minor" and not require an amendment to this Agreement; but instead will require only the approval of City's Director of Planning; provided the change does not:
(a) Alter the permitted uses of the Property as a whole; or (b) Increase the density or intensity of use of the Property as a whole; or
(c) Increase the maximum height and size of permitted buildings; or (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or • •• (e) Constitute a project requmng a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

The provisions of this Agreement require a close degree of cooperation between the City and the Owner. It is anticipated due to the term of this Agreement that refmements to the Development Approvals may be appropriate with respect to the details of performance of the City and the Owner.

To the extent allowable by law, the Owner and City shall retain a certain degree of flexibility as provided herein with respect to all matters, items and provisions covered in general under this Agreement and exhibits thereto. When and if the Owner finds it necessary or appropriate to make adjustments or clarifications, the Parties shall effectuate such changes, adjustments or clarifications through operating memoranda ("Operating Memoranda") approved by the Parties in writing, which reference this Section of the Agreement. Operating Memoranda are not intended to constitute an amendment to this Agreement but mere ministerial clarifications; therefore, public notices and hearings shall not be required. The City Manager shall be authorized in his sole discretion, after consultation with the Owner, to determine whether a requested clarification may be effectuated pursuant to this Section or whether the requested clarification is of such character to constitute an amendment to the Agreement which requires compliance with the provisions of this Agreement pertaining to amendments. The authority to enter into such Operating Memoranda is hereby delegated to the City Manager, and the City Manager is hereby authorized to execute any Operating Memoranda hereunder without Planning Commission or City Council action and without public hearing. Although other matters may also fall within the scope of Operating Memoranda, any amendment to this Agreement which does not relate to the Term, permitted uses of the Project, provisions for the reservation or dedication of land, grant of easement, or the conditions, terms, restrictions and requirements relating to Subsequent Development Approvals of City, revisions to Public Benefits (other than to the time for performance of such Public Benefits) or monetary exactions of Owner, shall be considered an "Operating Memorandum".

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations and fees and expenses shall apply to the Development of the Property (collectively, the "Reservations of Authority"):
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(a) Processing fees and charges of every kind and nature imposed by City to cover the estimated actual costs to City of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued. (b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals, and any other matter of procedure.
(c) Regulations, policies, and rules governing engineering and construction standards and specifications applicable, including all uniform codes adopted by the City and any local amendments to those codes adopted by the City. (d) Regulations imposing Development Exactions; During the initial 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 throughout the City. No such subsequently adopted Development Exaction within the aforementioned timeframe shall apply if its applicat ion to the Property would physically prevent Development of the Property for the uses and to the density or intensity of Development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Article 4 of this Agreement, City shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Article 4 of this Agreement to the extent such fees fulfill the same purposes. (e) Regulations that may be in conflict with the Agreement or Development Plan but that are reasonably necessary to eliminate or mitigate a serious threat to public health and safety. To the extent possible, any such regulations shall be applied uniformly to other similar projects within the City 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 Agreement or Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of Development of the Property, shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the Development of the property during the Term of this Agreement.
(g) Regulations which may conflict with this Agreement or the Development Plan, but to which the Owner consents in writing.

3.6.2 Subsequent Development Approvals. This Agreement shall not prevent City, in acting on Subsequent Development Approvals, from applying Su bsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or on the basis of any Subsequent Land Use Regulation which does not conflict with the Development Plan. Upon approval of any Subsequent Development Approval, such Subsequent Development Approval shall be deemed vested pursuant to the provisions of this Agreement, without any further action by City or Owner being required. 105
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3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations enacted after the Effective Date of this Agreement prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations; provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.

3.6.4 Intent. The Parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.7 Public Works. To the extent required by the Development Plan, Owner shall construct all public improvements related to the Project in accordance with City's or other applicable public agency's then applicable public works engineering standards.

3.8 Provision of Real Property Interests by City. In any instance where Owner is required to construct any public improvement on land not owned by Owner or the City, Owner shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements. In the event Owner is unabl e, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and I002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by Owner and upon Owner's provision of adequate security for costs City may reasonably incur, City shall negotiate the purchase of the necessary real property interests to allow Owner to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests. Owner shall pay all costs associated with such acquisition or condemnation proceedings. This Section 3.8 is not intended by the Parties to impose upon the Owner an enforceable duty to acquire land or construct any public improvements on land not owned by Owner, except to the extent that the Owner elects to proceed with the Development of the Project, and then only in accordance with valid conditions imposed by the City upon the Development of the Project under the Subdivision Map Act or other legal authority.

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

3.10 Tentative Tract Map And Other Development Approval Extensions. With respect to applications by Owner for tentative subdivision maps for portions of the Property, City agrees that Owner may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of City's subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each 106
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tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement. The City's City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond its original term, so long as subdivider files a written request for an extension wi th the City prior to the expiration of the initial five (5) year term.

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

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

4. PUBLIC BENEFITS

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

4.2 Development Impact Fees.

4.2.1 Amount and Components of Fee. Development Impact Fees (DIF) shall be paid by Owner. The Development Impact Fee amounts to be paid by Owner shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the City to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect t he ability of other public agencies that are not controlled by City to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by City.

4.2.2 Time of Payment. The fees required pursuant to this section shall be paid to City prior to the issuance of building permits. No fees shall be payable for building permits issued prior to the Effective Date of this Agreement, but the fees required pursuant to Subsection 4.2.1 shall be paid prior to the re-issuance or extension of any building permit for which such fees have not previously been paid.
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4.3 Public Benefit Fee.

4.3.1 As consideration for City's approval and performance of its obligations as set forth in this Agreement, Owner agrees to pay to the City a one -time public benefit fee in the amount of Six Dollars ($6.00) per building square foot, which is estimated to be Forty Nine Thousand Seven Hundred Twenty-Two Dollars ($49,722.00) ("Public Benefit Fee"). Payment of the Public Benefit Fee shall be in addition to any other customary fees or charges to which the Project would otherwise be subject (e.g., development impact fees and application fees). The actual amount of the Public Benefit Fee shall be set, based upon the actual building square footage of the floor areas contained within the previously commercially zoned parcel, prior to the issuance of the first certificate of occupancy for the Project, and Owner shall pay the Public Benefit Fee to the City prior to the issuance of any certificate of occupancy for the Project. The Public Benefit Fee shall not increase during the Term of this Agreement.

4.3.2 The City has sole discretion to determine the uses for the Public Benefit Fee.

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

4.3.3 Notwithstanding any provision herein to the contrary, the obligation of Owner to pay the Public Benefit Fee as set forth in Section 4.3.1 shall survive the termination of this Agreement until all buildings have been constructed on the Property pursuant to the Development Plan or otherwise. If the Public Benefit Fee has not been paid prior to the expiration of the Term, payment of the Public Benefit Fee shall be waived and shall no longer be due and payable if the City, after expiration of the Term, amends the Existing Land Use Regulations so that the Project, or other uses which previously were permitted under the Existing Land Use Regulations, no longer are legally permitted.

5. FINANCING OF PUBLIC IMPROVEMENTS.

If deemed appropriate, City and Owner will cooperate in the formation of any special assessment district, community facilities district or alternate financing mechanism to pay for the construction and/or maintenance and operation of public infrastructure facilities required as part of the Development Plan. City also agrees that, to the extent any such district or other financing entity is formed and sells bonds in order to finance such reimbursements, Owner shall be reimbursed to the extent that Owner spends funds or dedicates land for the establishment of public facilities.

Notwithstanding the foregoing, it is acknowledged and agreed by the Parties that nothing contained in this Agreement shall be construed as requiring City or the City Council to form any such district or to issue and sell bonds.
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6. REVIEW FOR COMPLIANCE

6.1 Annual Review. As required by California Government Code Section 65865.1, the Director of Planning will review this Agreement annually, on or before each anniversary of the Effective Date, in order to ascertain the good faith compliance by Owner with the terms of the Agreement. Until the Public Benefit Fee is paid, Owner shall submit an Annual Monitoring Report, in a form acceptable to the Director of Planning within 30 days after written notice from t he Planning Director. The Annual Monitoring Report shall be accompanied by a reasonable annual review and administration fee sufficient to defray the estimated reasonable costs of review and administration of the Agreement during the succeeding year. The amount of the annual review and administration fee shall be set annually by resolution of the City Council.

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

6.2.1 During either an annual or special review, the City will ascertain the good faith compliance by Owner with the terms of the Agreement.

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

6.2.4 If the City Council makes a preliminary finding that Owner has not materially complied in good faith with this Agreement, then, following notice and opportunity to cure, the City Council may modify or terminate this Agreement. Notice of Default shall be given to Owner prior to or concurrent with, proceedings under this Section.

7. PROCEEDINGS FOR MODIFICATION OR TERMINATION.

7.1 Proceedings Upon Modification or Termination. If, upon a finding under Subsection 7 that Owner has not materially complied in good faith with the terms and conditions of this Agreement, and City determines to proceed with modification or termination of this Agreement, then City shall give written notice to Owner of its intention so to do. The notice shall be given at least twenty (20) calendar days prior to the scheduled bearing and shall contain:

7.1.1 The time and place of the hearing;

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

7.1.3 Such other information as is reasonably necessary to inform Owner of the nature of the proceeding.
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The burden of proof on this issue shall be on Owner. If the City Council reasonably finds, based upon clear and convincing evidence, that Owner has not complied in good faith with the terms or conditions of the Agreement, the City Council may terminate this Agreement or modify this Agreement pursuant to a written agreement between City and Owner negotiated and signed by both Parties and impose such conditions as are reasonably necessary to protect the interests of the City.

The decision of the City Council to terminate this Agreement shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

7.3 Certificate of Agreement Compliance. If, at the conclusion of an annual or special review pursuant to this Agreement, Owner is found to be in compliance with this Agreement, City shall issue a Certificate of Agreement Compliance ("Certificate") to Owner stating that after the most recent annual or special review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in Default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after an annual or special review. Owner may record the Certificate with the County Recorder.

Whether or not the Certificate is relied upon by assignees or other transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of t he annual or special review, but was concealed from the Planning Director or City Council.

8. DEFAULT AND REMEDIES

8.1 Remedies in General. The Parties agree that the City would not have entered into this Agreement if it were to be liable for damages under this Agreement, or with respect to this Agreement or the application itself.

8.1.1 In general, and subject to those procedural prerequisites required under the Development Agreement Policies or this Agreement, each of the Parties may pursue any remedy at law or equity available for the breach of this Agreement, except that City shall not be liable in monetary damages to Owner, or to any successor in interest of Owner, or to any other person, and Owner covenants not to sue for damages or claim any monetary damages:
(a) For any breach of this Agreement or for any cause of action that arises out of this Agreement; or
(b) For the taking, impairment, or restriction of any right or interest conveyed, provided under or arising under this Agreement; or (c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 110
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8.2 Specific Performance.

8.2.1 The Parties acknowledge that monetary damages and remedies at law generally are inadequate, and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all Parties for the following reasons:

(a)
Subsection 8.1.1 above.

Monetary damages are unavailable against City as provided in (b) Due to the size, nature and scope of the Project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such time, Owner may be precluded from other options it may have had with regard to the Property or any portions thereof. Moreover, Owner has invested significant time and resources in the planning and processing of the Project. Owner will be investing even more time and resources in implementing the Project in reliance upon this Agreement and it is not possible to determine the sum of money that would adequately compensate Owner for such efforts.

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

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

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proceed to complete such actions and cure such default. The Parties may also modify this Agreement as set forth in Section 8.

8.6 Informal Resolution. The Parties recognize that good faith disagreements may arise between City and Owner during the administration and implementation of this Agreement.

The Parties will meet and confer in a good-faith attempt to resolve any dispute and will consider alternative dispute resolution mechanisms.

9. THIRD PARTY LITIGATION

9.1 General Plan Litigation. City has d etermined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. Owner has reviewed the General Plan and concurs with City's determination.

City shall have no liability in damages under this Agreement for any failure of City to perform under this Agreement or the inability of Owner to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third-Party Litigation Concerning Agreement. Owner shall defend, at its expense, including attorneys' fees, i ndemnify, and hold harmless City, its agents, officers and employees from any claim, action or proceeding against City, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim, action or proceeding, or if City fails to coope rate in the defense, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless City. City may in its discretion participate in the defense of any such claim, action or proceeding. Anything in this Agreement to the contrary notwithstanding, the Term set forth in Section 2.3 of this Agreement and the expiration date of all Development Approvals will automatically be extended by the longer of (i) the number of days in the period commencing on the date of filing any legal action of the type described in this Section and ending on the date that the claim, action or proceeding is either settled or fully and finally resolved in City's and Owner's favor, as evidenced by the expiration of all appeal periods with no further appeal bein g filed or the issuance of a full, final and non -appealable judgment or decisions; or (ii) the number of days in the period commencing on the date that a referendum conceding the Development Approvals is timely qualified for the ballot and the date that a referendum is certified resulting in upholding and approving the Development Approvals. City will execute, in recordable form, any instrument which Owner may reasonably require to evidence the extension.

9.3 Indemnity. In addition to the provisions of Section 10.2, Owner shall indemnify and hold City, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of Owner, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (Owner's employees included) or any other element of damage of any kind or nature, relating 112
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to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims and damages to the extent caused by the negligence or willful misconduct of City o r its officers, agents, employees, contractors, subcontractors, and independent contractors. Owner shall defend, at its expense, including attorneys' fees, City, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. City may in its discretion participate in the defense of any such legal action.

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

9.5 Reservation of Rights. With respect to Sections 10.2, 10.3 and 10.4 herein, City reserves the right t o either (1) approve the attorney(s) which Owner selects, hires or otherwise engages to defend City hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that Owner shall reimburse City upon written request for any and all reasonable expenses incurred for such defense, including reasonable attorneys' fees, upon billing and accounting therefor. If City chooses to conduct its own defense, City's separate counsel's billing rates shall be identical to the rates City pays for its typical municipal litigation rates for legal challenges for the type being defended.

10. MORTGAGEE PROTECTIONS

11.1 The Parties hereto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner's sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect t o the Property. City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish, or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the City in 113
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the manner specified herein for giving notices, shall be entitled to receive written notification from City of any Default by Owner in the performance of Owner's obligations under this Agreement. (c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner.

The Mortgagee shall have the right, but not the obligation, to cure the Default during the remaining cure period allowed Owner under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement.

10.2 Deposit of Legal Defense Costs. In the event of any litigation or legal challenge filed against City as described in this Section 10, then within twenty (20) calendar days following written demand by City therefor, Owner shall deposit with City funds into a deposit account maintained by City ("Fund") to reimburse City for City's costs and expenses, including without limitation reasonable attorney's fees, ultimately incurred by City to defend any such claim, action, or proceeding. The initial deposit shall be the sum of fifty thousand dollars ($50,000). The Fund, once established, shall at all times contain an amount necessary to cover not less than three ( 3) months of budgeted or anticipated expenditures by City relating to City's defense of such claim, action, or proceeding, including any and all appeals from decisions related thereto, as such budgeted or anticipated expenditures are determined by City in its reasonable discretion. For such purposes, City may from time to time, in City's reasonable discretion, make written demand upon Owner for deposit of additional funds by Owner into the Fund, in which event Owner shall deposit such additional funds into the Fund within twenty (20) calendar days following written demand by City.

11. MISCELLANEOUS PROVISIONS

11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the Parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. Any modifications to this Agreement must be in writing and signed by both Parties. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
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11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the public benefits set forth in this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and City would not have entered into this Agreement but for such provisions, and therefore in th e event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and ofno force and effect whatsoever.

11.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California.

This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the Parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting Party shall not be employed in interpreting this Agreement, all Parties having been represented by counsel in the negotiation arid preparation hereof.

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

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

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

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

11.9 Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Party, or the failure by a Party to exercise its rights upon the Default of the other Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by the other Party thereafter.

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

11.11 Force Majeure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, epidemics, pandemics, other acts of God, fires, wars, riots or similar hostilities, shortages of ma terial or labor, strikes and other labor difficulties beyond the Party's control, (including the Party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the Party's control. If any such events 115
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shall occur, the Tenn of this Agreement and the time for performance by either Party of any of its obligations hereunder will be extended for the period of time that such events prevented such performance, provided that the Tenn of this Agreement shall not be extended under any circumstances due to a force majeure event for more than five (5) years.

11.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the Party benefited thereby of the covenants to be performed hereunder by such benefited Party.

11.13 Successors in Interest. Except as specifically set forth in this Agreement, the burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the Parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes an d constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to the Development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each Party and each successor in interest during ownership of the Property or any portion thereof.

11.14 Counterparts; No Electronic Transactions. 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. In no event shall this Agreement be entered into, executed, terminated, altered, amended or modified by electronic mail or electronic record.

Except as otherwise herein provided, this Agreement may be changed or modified only by written instrument signed by duly authorized officers or representatives of the Parties hereto.

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

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

11.17 Further Actions and Instruments. Each of the Parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement.

Upon the request of either Party at any time, the other Party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement.
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11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.

11.19 Agent for Service of Process. In the event Owner is not a resident of the State of California or it is an association, partn ership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, Owner shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon Owner. If for any reason service of such process upon such agent is not feasible, then in such event Owner may be personally served with such process out of this County and such service shall constitute valid service upon Owner. Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. Owner for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

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

DEVELOPMENTAGREEMENTBETWEEN

THE CITY OF FONTANA
AND CHIPT FONTANA CITRUS AVENUE, L.P.

City

CITY OF FONTANA,
a California municipal corporation

By:
Acquanetta Warren, Mayor

By:
Matthew C. Ballantyne, City Manager

CHIPT Fontana Citrus Avenue, L.P.,
a Delaware limited partnership

By: CHIPT Fontana Citrus Avenue GP, L.L.C.,
a Delaware limited liability company,
its general partner

By: CHIPT Fontana Citrus, L.P.,
A Delaware limited partnership,
its manager
By: CHI West 119 Citrus Boyle, L.P.,
a Delaware limited partnership,
its general partner
By: CHI LTH GP, L.L.C.,
a Delaware limited liability company,
its general partner
By: /J7li'/-/CLD_L
Matthew D. Owen, Vice President
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ATTEST:

By:
Germaine Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

Ruben Duran, City Attorney
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g';{:.A,,:.yf Notary Public, State of Texas

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ACKNOWLEDGMENT

State of--Gattfom:ia-'7 ll5
County of l)alla.S
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Notary Public, personally appeare d--'- Y\..t.w })_l._._O_w . ;;:t.r\;,..._;. _,

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-:1iat the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signa - (Seal)
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.
120
Ordinance No. 1948

Page 34 of 41 ends

ACKNOWLEDGMENT

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)

121
Ordinance No. 1948

Page 35 of 41 ends

or
cma:

EXHIBIT A

TO DEVELOPMENT AGREEMENT BETWEEN
THE CITY OF FONTANA AND CHIPT FONTANA CITRUS AVENUE, L.P.

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. 20834, BEING A DNISION OF THE FOLLOWING:

ASSESSORS PARCEL NUMBERS
0251-151-07-0-000 (AFFECTS PARCEL 1)
0251-151-10-0-000 (AFFECTS PARCEL 2)
0251-151-14-0-000 (AFFECTS PARCEL 3)
0251-151-15-0-000 (AFFECTS PARCEL 4)
0251-151-16-0--000 (AFFECTS PARCEL 5)
0251-151-41-0-000 (AFFECTS PARCEL 6)
0251-151-39-0-000 (AITTCTS PARCEL 7)
0251-151-40-0-000 (AFFECTS PARCEL 8)
0251-151-43-0-000 (AFFEClS PARCEL 9)
0251-151-42-0-000 (AITTCTS PARCEL 10)
0251-151-09-0-000 (AFFECTS PARCEL 11)
0251-151-44-0--000 (AFFECTS PARCEL 12)
0251-151-19-0-000 (AFFECTS PARCEL 13)
0251-151-20-0-000 (AFFECTS PARCEL 14)
0251-151-21-0-000 (AFFECTS PARCEL 15)
0251-151-22-0--000 (AFFECTS PARCEL 16)
0251-151-05-0-000 (AFFECTS PARCEL 17)
0251-151-18-0-000 (AFFECTS PARCEL 18)
0251-I51-06-0-000 (AFFECTS PARCEL 19)
0251-151-03-0--000 (AFFECTS PARCEL 20)
0251-151-04-0-000 (AFFECTS PARCEL 21)

P-Y!CEL. 1;
1HE EAST I ACftE Of 1H[ IIEST 2.117 A<:AES CF lHE EAST 11.74 ACRES Of' THE SCUlH ll.77 ACRES OF LOT 7◄1, I\CCORDING TD PLIIT 91DWING SUl!DI\IISION OF LAHOS BB.ONGING TD Sfllt-'IROPI:: LNCl NG flA'ER CIIUPAN'I', PER PLAT RECORDED IN 90a< 11 Of IMPS, PACE 12, REC0RDS Of SAID COUNT'I'.

ARDS ,,,_,0 OIST.lNC&S COl!PVlED TO S"IREET CENTERS.

EXCEPTING ORn-1 1 FEET THE!lEOF-
PARCEL 2,
1HE EAST 1.00 ACE Cf '11 'ilEST 3.03 1,CRES Of lHE S0U1H 11.n Aa![S Of lDl 741. ACOCIIDINQ TO MM' SHQWIHC suetlMSI Of LMIOS 9D.ONCINC TO E $EIII-IR(IPI(: I.AliP AND !¥ATER c;ol,IP,lll'I', IN THE CITY OF FONTl,NA, COIJNlY Of SAN BEIUIAIIDINO. STATE CF CALIFORIIIA. PEil MAP llEIX!ll1JC) Ill Boat 11 OF liAPS, PACE 12, RECOROS Of SAIO COIJN"l'I.

AREAS AND DIST"NCES HE COMPUTEO TO STREET CEHlEl!S.

PARCEL J<
11£ WEST Q2 FEET Cf" 11£ NORn-1 1>2 IET OF 1H£ 'IE:ST 2-.llb M:IIES or lHE EAST II I ACRES or lHE NOlllH 11.7 ACIIES Of FAIW LOT 7 1. AcetffllNC 11) MAP SHOWING S!.IIIDIV1SIO!I Of LANDS l!WJ,ICICG 11) 11£ SOll-lROPIC LAND AND WATER COMPNIY, 1N lHE CIT\' OF FONTANA, COUNTY Of SAN BERNARDl!tQ, STl\1E Dr CALIFORNIA, AS PER 111,P PLAT RECORDED IN 1100K 11 Of NJ\PS. PMZ 12, OF ·MAPS, REOORDS Of SAID COUNTY, IN lltE Of IHE COUNTY RECCRCEI) OF SAID COUNTY.

EXC£Pl1NC lME OU Tl£ NORTH 10 FEET lMERD)F.

AISO E>CCEPTI G lHa!EFROM AU. 00., GAS, H'l'OIIOCNIOONS ANO 11114ERALS t'I OR UNOEJI LANO 8EI.OW A D£1'1H 500 FEET YoHHOOT 1HE RICIIT Of ENTRY IJPON Tl£ SURFACE THEl!BF, AS RESERVED IN 1HE DEEi) EOUITA8LE SAffiGS ANI> LOAN ASSOct,.no,,, .. OCRl'CRATlON, RECOl!DEIJ OOTOBER 6, 1%9, IN BOOk 7315. PAGf 3J. Cl"flCIN. l!EXXlRDS.

NO"E /\REAS AND DISTANCES ARE COMPIJTED TD 511lfET CBITERS.

PARCa 4·
11£ .-£!ST !lti FEET or Tr£ EI\ST 166.1& FEET OF 1HE YEST 2.325 ACRES Of 11£ EAST 6.19 ACRES OF 11£ NOI\TH 11.75 Aa!fS or FARII LOT 741, ACC:Olmt<G TC IIAP SH0'IIING 5U!llllVISlOH OF LANDS SB.aiGING Tl> THE SEMI-TROPIC LANI) AND WATER COMP'-NY, AS PER PLAT REQORllEI) ti SOOK 11 Of' MAPS, PAGE 12. t< Tl£ CfT'I' OF FONT.tl'<A, COUNTY Of SAN 8tm1Mll)I
EXCEPT THE SOUTH 180 FEET;
ALSO E><CEPT THE HOR1H !O FEET RESER'iED FOIi ROAD PIJIIPOSES.

N01E. AREAS .ANO DISTANCES OF 1HE ABO',,£: DESCl!IBE!J PAOf'ERTY ARE CllMl'lfED 1ll 11£ CENTER OF AIJJCl ING SllifETS ANO ROAl>S, AS SHO'lotl ON SAID MAP.

PAR E. 5:

Tr£ E..ST SO.IS FEET OF !HE '/£ST 2..l25 A ES OF THE EAST 8,195 ACRES Of 11£ MORlH 11.75 ACRES or fARN LOT 741, ACCORIIINC TO MAP SHOWINC SUBOMSICN OF LAliDS BElllllGING TO lHE SO.l-11fOl'IC LAND AND Wl,T[R COMPAH'I', IN 1)£ COUNTY OF SAN BERNARDIIIO, STI\TE Of CALFOFINIA, AS PER l'U\T RfCOIIDEO IN IIOOI< 11 Of U""S. PACE(S) 12, REOORDS OF SAID OOJOjTY, EXCCPT lME NORIH IO FU:T 1HERECF RESERVliO FOi! RO•O PURPOSES.

AI.W ElCCEl'TI O "tlEJl'.EfROf,I lHE SOUTH IBO FEET-
IIRE•S .\NO OISTANCES Of 1HE A80'l'E OEWllBED SU90114SIO!I l'IOICATE -.!AT n-lE S.oWE AllE C0Mf\l1EI) TO Sl!IEET CEhTERS.
122
Ordinance No. 1948

Page 36 of 41 ends

PARCEL 6:

TH£ MORlH 142 FEET OF lHE EAST 85 FEET Of 1HE WEST 3 ,555 M:RES OF lHE NCl!lll 11.75 ACRES OF LOT 741, EXCEPT THE l!ORlll 10 FEET, MEASIIRED TO STIIEET CEll'ltR UNES, AS PER MAPS SHOWt«: SUBOMSION OF I.ANDS BELONCIHG lO SEMI-TRCf'IC I.ANO ANO WATER Ca.IP.ANY, AS PER MAP RECOROED IN BDOI< U PAGE 12 OF' YAPS. RECORDS Of SAID COUNTY.

N011:: AREAS AND DISTANCES Of lHE /\BOVE DESCRIBED PfiOPERT'I ARE CllMl'UlEI) TD THE CEN'TER OF AOJ(OIIHG SlREETS AND ROADS, AS SIIQYIIII 011 'SAID MAP, PAACa 7;
PARCEL A:

THE SOUTH 160 fEET OF THE EAST 80.16 FEET OF lHE YEST 2.325 ACRES OF THE EAST 8.195 ACRES Of THE NORlH 11,75 ACRES OF' FARM LOT 741, ACCOR;>ING TO i,4,1.P SI-IO'l'ANG SUBOMSION QF LAHOS 8ELOHGING TO lHE SDII-TR0PIC LAICl Al.a WAlER COMP/.NY, lit THE COUh·T CF SAN BERlfARDttlO, STA.lE OF CALFOIINIA, AS PER PLAT RECORDED 11'1 8001< 11 OF MAPS, PACE(S) 12. RECORDS Of" SAID COOo,ITY A E AND OISTANCES COlolf'\JlED TO ST!'lEIT corrms AS SHOWtl 011 SAKI MAP,

PARCEL B,
THE SOUTH 160 FEET OF THE \EST lie FEET OF THE EAST 166-16 FEET Or THE WEST 2-325 ACf!ES OF THE EAST &-195 ACRES Of lHE NORTH 11.75 ACIIES OF F LOT 741, AOC II«: 10 M·lif> SHOYIING SVBDIYISIOH OF LANDS BELONGING TO THE SEMI-TROPIC I.AND AND WATER COMPANY, IH llE COONlY Of SAN BERNARDINO. STAlE QI" CALIFOR!llA,, AS ffR PLAT RE<:ORDED IN BDOI( 11 OF MN'S. PAGE{S) 12, RECORl)S Of s...iD COUNTY.

ARE'-$ ANO 01STAACES CDUPUTED TO SlREET CENTERS AS SIIO't!ti ON SAID MAP.

PAACa C:

THE MST 2.32!> ACRES Cf' THE EAST 8.19!> ACRES OF THE NORTH 11.75 ACRES OF FARM LOT 741, AOCOROING TO MN> SHO'MNG SUBDIVISION 17 LANDS BEI.ONGIMG TO THE SEMI-TROPIC LAND AND WATER COMPANY, IN THE PDUNTY OF" SAN BERNAROINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BQOK 11 OF MAPS. PAGE(S) 12, RECORDS Of SAID COUNTY,
EXCEPT TH EFROM THE MOR1H 132 FEET Of THE 'l'£5T 92 FEET.

ALSO El<CEPT THEAEF'ROIA THE EAST 165.15 FEET, AN!) AL'SO El<CEPT lHEREFT!OM, THE llORlll 10 FEET RESERVED f'OR ROAD PURPOSES.

AREAS AND DISTANCES COI.IP\JTED TD SlREET CENTERS AS SHOWN ON SAi) MAP.

PAACa II·
THE EAST 1117 FEET Of" THE WEST :u, 5 A ES OF THE TH 11.75 ACRES tlF F'ARM LOT 741, ,\COORtllNC TO MAP SHO'MNG DIVISION Of LAHOS BELONGING TO lHE SEMI-TROPIC LAND .ANO WA.lER COMPANY. IN THE COUNTY OF SAN BERNARDINO, STATE CF C"1.JFCRNIA. AS PER PLAT RECORDm IN BOOK 11 OF MAPS, PACE(S) 12, RECORPS <$' 51.ID COUNTY.

El<CEPllNG THE OU THE NORlll -42 FEET OF TitE EAST 85 FEET, ALSO El<CEPT THEREffiOM THE MORlll 10 FEET RESERIIEl) FOFI ROAD PURPOSES.

ALSO El<CEPT Tl-lER PORTION <:F l1IE LAND 00N\€l'ED TO THE CITV OF FONTN-IA, A MllNICIPAL CORPORATION IN GRMIT DEED RB:ORD£D JJNE 211,. 2010 A.S INS UlolEHT NO. 2D10- 0257!>63 Of OFAQAL RECORnS.

AREAS '-ND DISTANCES COMPUTED TO S'IREET CDITERS AS SIIO'llN OIi SAID MAP, PARCEL 9-
THE NIIRlH 1 FEET Of THE YiEST 1.67 ACRE'S OF THE EAST 7.74 Al:RES Of lHE SOUTH 11.77 A ES OF FARM LOT 741, o\CCOROING TO MAP SHOWING SUlilll\olSICIII OF LAlllS BELCNGIHG TO THE SElll-'IROPIC LANO ANI) WATER COMPANY, IN lHE COVNTY OF $AN BERNAADll!O. STATE Of CAURlRNIA, A$ PER PLJ.T IIECORDED IN 900K 11 OF MAPS. PACE{S) 12, RECORDS OF S/110 OOUNTV, AREAS ANO DISTANCES COlilPUlED TO STI!EET CENlERS .AS SH<Witl Oli SAB> MAP, P,tl!CEL 10;
TME \111.ST 3.5$5 ACRES OF THE NORTH 11.7:; AQIES OF l'A!IM I.QT 741. AC(;ORDN<l TO MAP $MOWING S\J8DIVISIO!i a" I.ANOS BELONGING TO THE SEl,lt-TRQ>IC Ll\!IO A!'ID w.-. COMP,6.li'I, IN THE COOWTY OF SAA BERNAROli.0, STAlE OF CALIFOR'.!'IIA, AS PER PLl,T RECORDED IN BOOk 11 OF IIAPS. PAGE($) 12, RECOROS OF S,r,JO COU TY.

EXC l'T THEREl'R<IM THE EAST 197 FEET THEREOF.

ALSO EXCEPTitlG lHEREFROM THE NORTH 10 FEET THEREOF, AS CONYE'!ED TO THE CDi,INTY OF SAN BERNARDINO, 8Y A DEEO RECOROED 'SEPTE1i18ER 24, 11120. IN BOOK 134, Pf,,1;£. J6 . Ofl'ICIAL RECORDS, ALSO ElCCEPTilolO 1HEJIEfft06A 'Tl!AT TION N>ITED 'R> TitE $TA1t: OF C-'UFOR>,11.-., BY A DEEi) RECORDED FEBllllAAY 24, l9511. llf BODI( 4#4, PAGE 60, OFFICIAL IIIECORDS .

ALSO EXCEPT THEREFROM PORTION OF" lllE LANO CON'¥E'YED lO THE CllY OF FONTANA, A IWNIClf'AL CCJ!PORATION IN GRN-IT DEED RECORDED ..ONE 28. 20!0 AS INS'IRlllolENT NO. 2D10-0257563 OF OfflCIAL RECOAllS.

AREA$ AND OIST,ll,CES COMP\/ TO S'IREIT CENTERS AS $110'MI QN SAIO NAP, PAACEL lt.:

THE WEST I ACRE Of THE EAST 8.74 ACRES O'" THE SllU'lli 11.77 ACRES Of FAR'M LOT 741. ACCORDING TD 1,1!,\P SHOWING SUBDllolSION Of' LANDS BELONGING ltl THE SEMI-TROPIC LAND AND WA'IER COMPANY, IN THE COUNTY OF SA)I BERNARDll+O.. STATE OF CAUFORNJA, AS PLAT RECOROEP IN 900K 11 OF 11,1,,PS, PAGE(S) 12, RECOROS OF SAID COUNTY.

AREAS ANO OISTA!fCES COl,IPIJTED TO 511lEIT CEN'IERS .AS SlfCIYl\'I 0 SAil lllt\P,

PAACEL.12:
™E '111.ST 0.87 ACflES QF TME EAST 7,74 ACRES OF 'THE SOl,ITH n.n ACRE:$ (lF FARl,4 LOT 741 ACCORDING TO Sl.lBDMSlON OF LANDS BElONCING TO SEMl-lROPIC LNID O WAl cot.lPAl<'I', AS PER PLAT RECORDED IN BOOk. 11 OF 1,IA.PS, PAGE 12, RECORDS Of SAID lY
ExCEP'llNG THEREFROM THE NMlH U,O FEET.

NOlE! AREAS AND DISTAliCES Of lHE AOOIJE OESORIBED PROPERTY Acl!E COM"UTE!l TD THE CDITER Of ADJOINIHG SlREETS ANO ROADS, J,S SHO'l'IN OH SAID 111\P. 123
Ordinance No. 1948

Page 37 of 41 ends

PAfl"i:El. 1J;
lliE EAST 93 FEET OF 'THE WEST 186 FEET OF 'THE l/t£ST 2.8& AtftES OF 1HE EAST &.87 ACRES OF 'THE ltORTII 11.75 ACRES OF FARM LDT 741, ACCORDING TO PLAT SHO'fllNG SUBDIVISION Of LANDS BELONGING TO TIIE: SEMl-ll!Cf'IC LAND AND W"-1ER CmAPANY. IN 11-IE: CITY OF FONTAN,\, COUNTY OF SAN BERNARDINO, STATE: OF CALIFORl'IIA, AS PER PLAT RECOROEO IN 900K 11 OF WAPS, PA<lE 12 RE:COROS OF SAIO CQUMTY, EXCEJ>llttG lliEllEFROM 'THE NORlHERLY 10 FEET FCfl R'OAD PURPOSES.

MEAS AMO DISTANCES COMPliTED TO STREET CENTffiS.

PARCEi.. 14:

lllE: WEST J FEET OF 1HE: EAST 18& FEET OF lH£ ¥!£ST 2-88 ACRES OF ll-lE EAST 5,67 ACRES OF THE ltOR'Tli \1,75 AC ES OF FARt.l LOT 741, o\C ING TO lliE AP SHO\IIING SIJBDIVISI OF LAIIIOS SEl..ONGlllC TI> 'THE SEMI-TROPIC Ll\l-lD {l.."lD WAlER COMP Y, IN lliE CITY OF FOtHANA, COIJNlY OF SAA 8ERNARDlltO, STATE OF CAUFO IA, AS PER PL"-T RECORDED IN !tOOI<. 11 OF MA.PS. f>ACE 12 RECORDS OF $,'JO COUNTY.

EXCEPTING TIIEREFROM THE NORlHERLY 10 FEET FDR ROAD PURPOSES.

M!EAS ANO DISTANCES COMPLl'TED TD STREET CENTERS.

fAil.CEl..l
TIIE EAST 3 FEET Of THE WEST 2.B6 A S Of 11-tE EAST 5.87 ACRES OF THE NORTII 11.75 ACRES Of LDT 741, ACCOIIDIHG TQ UM' SI-IOWING SUBPIYISIQN 0F LANDS BELONGING TO ll-lE SDl-lROPIC LANO ANI) WATER CO., IN lHE CITY OF FONTANA, CO!,JNT'r OF SAN NAffDll'lO, STATE OF CALIFORNIA, AS PE PLAT REC Da'I IN 8001< 11, PACE 12: OF MAPS, IN lliE OFFICE OF THE OOJNlY RECOADEll OF SAID COUNTY, EXCEf'llkG 'THE NMTHERLY 10 FEET RESERIBJ FCR ROAD POSES.

AREAS AND OISTMICES OF THE AeOVE OE'SCRIBED PROPERTY ARE COMPUTEt) TO TIIE CENTER LINE OF ADJOINING STREETS MID ROADS.

PARCEL 18:
lliE EAST lJ)l A ES OF lHE NORlH 1t.7tl ACRES OF FARM LOT 7♦1, ACCORDING TO MAP SHOWIMG SUBOI\IISION OF L.AHDS BELONGING TO TIIE SEMllROPIC L»lD AND WAT"Ei( COMPANY, COUNTY OF SAN BERNARDINO, ST"-lE Of CALIFORNIA, AS PEii PLAT RECORDED IN BOOK 11 CF MAPS, PAGE: 12, RECORDS OF SAID COVNTY.

ElCCEPTINC 'THEREFROM 'THE EAST 134 FEET 'THEREOF.

ALSO EXCEPTING lHEllEFROl,I THE NO!llli ID FEET TO BE RESERVED F !«>AD PURPOSES.

AREA AND DISTANCES COMPIJTEI> TO STREET CENTmS.

PARCEL 17:

lliE WEST 1,◄J ACRES OF 'THE EAST :!i,lH .\CIIES OF lliE SOOlH 11.77 AQ!ES OF FARM LOT 741. ACCl;lflDING TO l,fAP SHO\'IINC S\18Dl'IISlOM OF L.\NDS BEl.CNCIHC TO 'THE SEMI-TROPIC LANO N-10 WATEll CCl,lll'Alfl', IN lliE COUNTY OF SAN BERNARDINO, STAlE OF" C.,,LIFOF!NIA. AS PEN PLAT RECOROED IN BOOK 11, PAGE 12 OF MAPS. REC()Rj)S Of SAID COUNTY.

EXCEPTING THEREFROM THE 'AEST 60 FEET lHEREa".

ACRES ANO DISTANCES CQMPUTm TO STREET CENTERS.

PARCEi. 18:

TIIE WEST 9l.OO FEET OF TIIE: WEST 2.86 ACRES OF THE E,\ST 6.87 "'CRES OF TIIE NORn-t 11.76 ACRES. OF FARM LOT 741, ACCORDING TO 11-IE: MAP SHOWING SUIIOI\IISION Of LANDS BELONGING TO THE SEMI-TROPIC LAND ANI) WATER CQ., IN THE: Ci,JNTY OF S.ul BERNAROllolO. STATE: OF" CALIFORNIA. AS PER PLAT FIECOROEO IN 8001< 11, PACE 12 OF MAPS, RECORDS OF S/1.I0 COUNTY, EXCEPTINC 'THE NORTH 10.00 FEET FOO ROAD PURPOSES, AREAS ,61,10 DISTANCES .ARE COMPUTED TO STREET

CORNERS
PARCEL 19:
lliE WEST 60 FEET OF THE WEST 1.43 AC a'" lHE EAST 5 67 ACRES OF lHE SOU'Tli 11,77 ACRES OF FAAM LOT 741, ACCOROINC TO l,IAP SHOWINC SlJiBDIIIISION OF LN-10S BEI..Ot-fCINC TO lHE SEl,,II-TROPIO LANO AND WATER CO!.IPAI\IY, A.S PER MM' RECORDED IN BOOk 11, PACE 12 Cf" MAPS, IN 'THE a=FICE OF lliE COUNTY RECOR OF SAIO COUNTY. ACf'IEAGE OF 11-IE AEIOW: OESC'RIBE"O LOT IS COMPUlED TO 11-IE CailER Of ALL ADJOINING Sll!EET AND ROADS. AS SHOlm ON SAID MAP.

EXCEPTING THEREFROM ANY PORTION OF SAID LAND L'YING WITH1H THE LINES OF ANY PUPLIC RIGHTS QF WAY.

PAACEl. 20:

TIIE \ljEST 200 FEET OF TIIE E,\$T 3.01 ACRES OF THE SOUTII 11.11 ACRES OF FARM! LOT 741. ACCMDING TO MAP SHOWING TIIE SUBDIVISION OF' l»il>S BEUlNGIHG TD THE SEMI-TROPIC LAND A.HD WATER COMPANY, IN THE CITY OF F"ONT...NA, COUNTY OF $AN BERNARDIHO. STATE: OF CALIFQRNIA, AS PER PLAT RECORDED IN BOO!< 11 OF IJAPS. PACE 12, RECOROS OF SAID COi.lNTY-
PARtEl.. 21:

TIIE WEST ONE AND fc»llY-lHFIEE HUHOREOTHS (UJ-) ACRES CF THE EAST FOUR AND FORT'l'FOUR HUNDRE01HS (4.44) ACRES. -OF THE -SOOTH El..£\9,I ANO $£VE!ITY -SE:',£N Hl,INl)REOTHS (11.77) ACRE:$ OF" FAAM LOT NO, 741 AC DING TO 'THE MAP OF LANDS IN lliE SA!ol BERNARDINO COUNTY, CAUFQRl'llA, BELONCINC TO lHE SE)II-TRO!!'IC LAM:I ANO WATER COl,IPANY, RECOflDED 11-1 BOOK 11, AT PACE ]2, RECORDS OF SAIC COUNl'1.

MEASUREMENTS COMPlllED FROM (;f},jTf:R OF AOJOlhlNG STREET. 124
Ordinance No. 1948

Page 38 of 41 ends

EXHIBITB

TODEVELOPMENTAGREEMENTBETWEEN
THE CITY OF FONTANA AND CHIPT FONTANA CITRUS AVENUE, L.P.

Map Showing Proiect Location

t
NORTH
125
Ordinance No. 1948

Page 39 of 41 ends

EXHIBITC

TODEVELOPMENTAGREEMENTBETWEEN
THE CITY OF FONTANA AND CHIPT FONTANA CITRUS AVENUE, L.P.

Development Approvals

SITE PLAN

TENTATIVE PARCEL MAP NO. 20834

126
40 Ordinance No. 1948

ELEVATIONS

NOll'TH 11.SVATION I 3 I

WEST ILIVATfON I -4 I

GENERAL PLAN DESIGNATION - LIGHT INDUSTRIAL (1-L)

40 of 41
127
41 Ordinance No. 1948

ZONING MAP DESIGNATION - LIGHT INDUSTRIAL (M-1)

41 of 41
128
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2888 Agenda Date: 4/23/2024
Agenda #: I. Category: Consent Calendar
FROM:

Public Works
SUBJECT:

Contractor Substitution Due to Job Abandonment and Bankruptcy from Previously Awarded Construction Contract for Public Works Concrete Maintenance Project (SB-107-PW-23) RECOMMENDATION:

Approve and authorize the City Manager to execute a construction contract with Gentry General Engineering, Inc for the remaining work required to complete the construction of Public Works Concrete Maintenance Project in the amount of $168,840.00 (Bid No. SB-107-PW-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 April 11, 2023, the City Council awarded the construction contract with Stance Construction Company of Chino, CA for the construction of the Public Works Concrete Maintenance Project in the amount of $700,806.95 and 10% of contingency.

During the contract work, Stance Construction Company abruptly abandoned the job and subsequently filed for bankruptcy. In response to this challenge, the City has diligently collaborated with Guardian Group, the surety provided by Stance Construction Company, to identify a suitable path forward.

After thorough deliberation and assessment, both the City and Guardian Group have reached a consensus to issue a contract for the outstanding work to Gentry General Engineering, Inc. Staff believes that Gentry General Engineering, Inc possesses the expertise, resources, and commitment necessary to successfully complete the project to the City's satisfaction.

The Guardian Group, acting as the surety, bears full responsibility for addressing any claims related to nonpayment and covering expenses exceeding the original contract amount agreed upon between the City and Stance Construction Company.

The proposed contract amount with Gentry General Engineering, Inc. stands at $168,840.00, reflecting a fair and reasonable cost for the remaining work. This agreement will ensure the timely and high-quality completion of the project.

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129
File #: 21-2888 Agenda Date: 4/23/2024
Agenda #: I. Category: Consent Calendar
FISCAL IMPACT:

Funding is available in the FY 2023/24 budget to complete the project. Funds are allocated in the Capital Reinvestment Fund 601, Sidewalk Rehabilitation Project No. 37104326 and in Concrete Maintenance Operating Budgets 10137106 and 28137106. No further funding will be necessary to finalize the outstanding contract work.

MOTION:

Approve staff recommendation.

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Ge
ntry General Engineering, Inc
320 W Tropica Rancho Rd
Colton, CA 92324
(909) 330-1128 (Phone) (909) 330-1129 (Fax)
[email protected]
CSLB# 974279 – Class A DIR# 1000024189
Contract: Brenton Gentry, President or Dean Bates, Estimator/Project Manager Surety: Ohio Casualty Insurance Company (Liberty Mutual) Agent: Dwight Reilly, Commercial Surety Bond Agency – (714) 516-1232 No exceptions are taken to this RFP.
______________________________
Brenton Gentry, President
131
Surety: AmTrust Financial Services, Inc. ("Amtrust")
Principal: Stance Construction ("Stance")
Obligee: City of Fontana ("City")
Bond No.: PPD101403
Project: SB-107-PW-23 ("Project")
GGI No.: 572-12281

ATTACHMENT A - BID SCHEDULE OF VALUES
(bidders are REQUIRED to provide pricing in this format ONLY) Bid Item City of Fontana - Line Item Description (ALL DIMENSIONS ARE APPROXIMATE…BID AS LUMP SUM ITEMS) Units BASE BID Amount (Bidder to enter Values in this column) Notes
Village of Heritage
1 1. Cherry n/of Foothill on eastside – approx. 420 sq ft 4’’ sidewalk LS $9,900.00 2 2. 7851 Cherry – approx. 540 sq ft 4’’ sidewalk LS $12,700.00 3 3. Cherry e/side s/of Roanoke – approx. 1290 sq ft 4’’ sidewalk LS $30,200.00 4 4. Cherry e/side s/of Miller – approx. 200 sq ft 4’’ sidewalk LS $4,800.00 5 5. Drake / E Yosemite Loop - C/G asphalt slot cut 1'x13' LS $2,100.00 6 6. E Constitution / W Grand - C/G saw cutted asphalt for slot cut- not complete LS $4,800.00 7 7. NWC W Lincoln Loop / E Constitution - ADA ramp- slot cut LS $23,240.00 Remove & Replace
8 8. 8082 Palermo St - DWA has a lip LS $8,900.00
9 9. 8069 Summer Place St - DWA has a lip LS $6,700.00 10 10. 14067 Catalina Ct - Form was not removed between asphalt/gutter DWA LS $8,200.00 11 11.W Liberty pkwy S/of Edison easement C/G and slot cut 53' not done. LS $9,800.00 12 12.Remove all concrete and debris dumped in the Edison right of way LS $21,500.00 Southridge - asphalt replacement
Asphalt Restoration
13 1. 11740 Calabash 57’ LS $8,400.00
14 2. 11857 Rancharias Dr 8’ LS $1,100.00
15 3. Across from 11432 Rancharias Dr 18’ LS $2,500.00 16 4. 11460 Ridgewood Dr 18’ LS $5,700.00
17 5. Rustic at Cherry or El Contento 60’ LS $8,300.00 TOTAL BASE BID AND PROPOSAL (Lump Sum) = $168,840.00
Notes:
[1] - All dimensions are approximate. Bidders to verify in field prior to submitting bid. No adjustments will be permitted after award. [2] - Payment in Full, without retainage will be made following completion and acceptance of all work and approval of required documentation (Certified payrolls, etc) [3] - City and Surety reserve the right to reject any bid. 132
11-Mar 12-Mar 13-Mar 14-Mar 15-Mar 18-Mar 19-Mar 20-Mar 21-Mar 22-Mar Remove and Replace PCC Sidewalk -
Village of Heritage
Remove and Replace PCC Driveways,
Sidewalk, and Curb/Gutter - Various
Remove and Replace AC Pavement - All
Locations
Remove and Dispose of PCC and Debris
from Edison ROW
Punch List and Cleanup
Preliminary Work Schedule
assumes four weeks for contract execution
133
City of Fontana
Action Report
City Council Meeting
8353 Sierra Avenue
Fontana, CA 92335
File #: 21-2971 Agenda Date: 4/23/2024
Agenda #: J. Category: Consent Calendar
FROM:

Engineering
SUBJECT:

Approve an Agreement with the Inland Empire Utilities Agency, Speedway SBC Development, LLC, and San Bernardino County for Wastewater Services for Speedway SBC Development, LLC RECOMMENDATION:

Approve and authorize the City Manager to execute an agreement with the Inland Empire Utilities Agency (“IEUA”),Speedway SBC Development, LLC, and San Bernardino County (“County”)for wastewater services for Speedway SBC Development, LLC.

COUNCIL GOALS:
· To concentrate on Inter-governmental relations by working cooperatively with neighboring jurisdictions.
· To 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 Speedway Commerce Center II comprises the redevelopment of a portion of the existing Auto Club Speedway property, encompassing approximately 433 acres of the 522 acres of the Speedway property located in unincorporated San Bernardino County. The project includes 6.6 million square feet of high-cube logistics/e-commerce uses, 261,360 square feet of ancillary commercial uses, and future parking areas. The project is situated north of San Bernardino Avenue and west of Cherry Avenue.

As part of the project conditions required by the County, the developer is required to provide sewer services to the project. The developer designs and coordinates with IEUA to create an internal sewer system within the private property and connects the sewer directly to the IEUA system. The maintenance and operation of the proposed sewer system will remain with the County.

According to the Regional Contract with the contracting agency with IEUA, the contract agency can only administer the monthly wastewater billing. Since the County is not part of the contracting agency, the City will provide the billing services for this project based on the rate structure established by the City and IEUA.

FISCAL IMPACT:

There is no fiscal impact to the City since the current rate structure includes compensation of administration hours.

City of Fontana Printed on 4/17/2024Page 1 of 2
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File #: 21-2971 Agenda Date: 4/23/2024
Agenda #: J. Category: Consent Calendar
MOTION:

Approve staff recommendation.

City of Fontana Printed on 4/17/2024Page 2 of 2
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AGREEMENT FOR THE PROVISION OF SEWER SERVICE
THIS AGREEMENT FOR THE PROVISION OF SEWER SERVICE (“Agreement”) is entered into this ____ day of _______________, 202__ (“Effective Date”), by and between INLAND EMPIRE UTILITIES AGENCY, a municipal water district (“IEUA”), SPEEDWAY SBC DEVELOPMENT, LLC, a Delaware limited liability company (“Hillwood”), CITY OF FONTANA (“City”), and SAN BERNARDINO COUNTY (“County”).

RECITALS
A. IEUA is a municipal water district organized and existing pursuant to Sections 71000 et seq. of the California Water Code and is authorized to provide wastewater treatment and recycled water services to properties in the IEUA service area.

B. The City of Fontana is a general law city located within the San Bernardino County, State of California.

C. Fontana Water Company, a division of San Gabriel Valley Water Company, a California corporation, is a public utility water company subject to regulatory jurisdiction of the California Public Utilities Commission doing business in the San Bernardino County, with its principal place of business being 15966 Arrow Route, Fontana, California, and is authorized to provide public utility water service, including service of recycled water, to its customers, which are located within its service area as authorized and approved by the California Public Utilities Commission.

D. San Bernardino County Department of Public Works – Special Districts, is a Department of San Bernardino County that provides municipal-type services to unincorporated areas of San Bernardino County including, but not limited to, sewer services.

E. California Speedway, LLC, a Delaware limited liability company, successor-in- interest by conversion from California Speedway Corporation, a Delaware corporation, formerly known as The California Speedway Corporation, a Delaware corporation, successor-by-merger to Speedway Development Corporation, a California corporation (“Speedway”), IEUA, the City of Fontana, and the Fontana Water Company are parties to that certain Agreement for the Provision of Sewer and Recycled Water Service dated November 24, 2015 (the “Speedway Agreement”), pursuant to which, IEUA agreed to provide certain sewer and recycled water services to property owned by Speedway, commonly known as the Auto Club Speedway of Southern California, more particularly described in the Speedway Agreement (the “Speedway Property”).

F. Hillwood and Speedway are parties to that certain Purchase and Sale Agreement and Joint Escrow Instructions dated June 15, 2021 (“Purchase Agreement”), pursuant to which, Speedway has agreed to sell, and Hillwood has agreed to purchase, that certain portion of the Speedway Property more particularly described in Schedule “1” attached hereto (the “Hillwood Property”).

G. Hillwood desires that, after Hillwood acquires the Hillwood Property, IEUA, through City, continues to provide wastewater services to existing and future systems located on the Hillwood Property, and IEUA is willing to do the same, all upon the terms and conditions set 136

Agreement for the Provision of Sewer Service
March 2024

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Fontana City CouncilApril 23, 2024

Fontana City Council
April 23, 2024