ORDINANCE NO. 1950
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
FONTANA APPROVING, PURSUANT TO THE CERTIFIED
FINAL SUPPLEMENTAL ENVIRONMENTAL IMPACT
REPORT (SCH 2009091089) FOR THE PROJECT,
APPROVING DEVELOPMENT AGREEMENT (AGR) NO.
24-002 BETWEEN THE CITY OF FONTANA AND
PROLOGIS EXCHANGE 11115 HEMLOCK AVENUE LLC,
WHICH PROVIDES FOR EXTENDED ENTITLEMENT
TIMING AND ENHANCED ENVIRONMENTAL MEASURES
FOR AN APPROVED INDUSTRIAL COMMERCE CENTER
DEVELOPMENT OF APPROXIMATELY 881,826 SQUARE
FEET ON APPROXIMATELY 40.01 ACRES
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, the City of Fontana (“the City”) has found th at 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 pla nning 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, Prologis Exchange 11115 Hemlock Avenue (“Developer”) has proposed to enter into a development agreement concerning the Property located at 11115 Hemlock Avenue (Assessor Parcel Numbers 0237 -131-25,-26 and -27) (the “Property”), to provide assurances that the Property can be developed without disruption caused by a change in the City’s planning policies and requirements excep t as provided in the development agreement, which assurances will thereby reduce the actual or perceived risk of planning for and proceeding with development of the Property; and
WHEREAS, the City and Developer are supportive of entering into Development Agreement No. 24-002 ("AGR No. 24-002”) for the Property which the Developer has fee title; and
WHEREAS, Developer’s interest in the Property, including that interest to be conveyed pursuant to the AGR No. 24-002, 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 an industrial building totaling approximately 881,826 square feet to achieve the goals of the City's General Plan (“General Plan”), as further described and conditioned in the AGR No. 24 - 002 such development shall be referred to herein as the “Project”); and
WHEREAS, City has found that the AGR No. 24 -002 attached hereto as “Exhibit A” and incorporated herein by reference is consistent with City's General Plan and it has been reviewed and evaluated in accordance with Section 30-102 of the City Development Code; and
WHEREAS, City has determined that by entering into the AGR No. 24-002: (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, industrial opportunities created by the Project for residents of the City; and
WHEREAS, a Final Subsequent Environmental Impact Report (FSEIR) to the previously-certified Final Program Environmental Impact Report (FEIR) for the Southwest Industrial Park (SWIP) Specific Plan Update and Annexation (State Clearinghouse (SCH) No. 2009091089) has been prepared for this project in accordance with Sections 15063 and 15163 of the California Environmental Quality Act (CEQA) and identified the AGR No. 24-002 as a potential Project approval; and
WHEREAS, on March 19, 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 Planning Commission certified the project FSEIR (SCH #2009091089), and approved the Mitigation Monitoring and Reporting Program (MMRP) with Resolution PC Number 2024 – 020; and,
WHEREAS, on May 14, 2024, the City Council at a public hearing considered and denied Appeal (APL) No. 24 -002 and Appeal (APL) No. 24 -005 to uphold the Planning Commission’s March 19, 2024 decision approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review (DRP) No. 22 -064 along with the certif ication of a Final Subsequent Environmental Report (FSEIR) State Clearinghouse Number (SCH No. 2009091089) and adoption of a Mitigation, Monitoring, and Reporting Program, (MMRP), and
WHEREAS, the terms and conditions of the AGR No. 24 -002 have undergone review by City at publicly noticed hearings and have been found to be fair, just and reasonable, and consistent with the General Plan. Further, City found that:
(i) the economic interests of the City's citizens and the public health, safety and welfare will be best served by entering into the Development Agreement;
(ii) the development agreement is compatible with the uses authorized in, and the regulations prescribed for, the land use district in which the Property is located; (iii) the development agreement is consistent with the General Plan; (iv) the development agreement is in conformity with the public convenience, general welfare and good land use practice;
(v) the development agreement will not be detrimental to the public health, safety and general welfare; and
(vi) the development agreement will not adversely affect the orderly development or the preservation of property values for the Property or any other property; and
WHEREAS, all the notices require 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 thoug h fully set forth in this Ordinance. Pursuant to California Government Code section 65867.5(b), and based on the entire record before the City Council, including all written and oral evidence presented to the City Council, the City Council hereby finds tha t the development agreement is consistent with the General Plan because the AGR No. 24-002 will result in the development of the Property at the intensity and density allowed under the General Plan and with the restrictions and standards set forth in the City's Municipal Code.
SECTION 2. California Environmental Quality Act. Consistent with CEQA and the State CEQA Guidelines (Cal. Code Regs., tit. 14, § 15000 et seq.), EIR (State Clearinghouse No. 2022110389) was prepared for development, including the Tentative Parcel Map and Design Review. The Planning Commission certified the Project SEIR and adopted the MMRP, the City Council, and, based on the CEQA Sections 15162 through 15164, staff has determined that none of the criteria requiring a subsequent environmental document have been met and that further environmental analysis is not required, and directs Staff to file a Notice of Determination. On May 14, 2024, the City Council at a public hearing considered and denied Appeal (APL) No. 24-002 and Appeal (APL) No. 24 -005 to uphold the Planning Commission’s March 19, 2024 decision approving Tentative Parcel Map No. 23-012 (TPM No. 20710) and Design Review (DRP) No. 22 -064 along with the certification of a Final Subsequent Environmental Report (FSEIR) State Clearinghouse Number (SCH No. 2009091089) and adoption of a Mitigation, Monitoring, and Reporting Program, (MMRP).
SECTION 3. Development Agreement Findings. Based upon the entire record and all written and oral evidence presented, the City Council finds this Ordinance promotes the public health, safety and welfare of the community because the AGR No. 24 -002 will enable needed public improvements at the Property and the economic development of the Property will benefit the citizens of the City.
The City Council further finds that among the public benefits to accrue to the residents of the City as a result of AGR No. 24-002 are:
1. The revitalization of an underdeveloped site.
2. The development of onsite infrastructure upgrades that would not occur otherwise.
3. The generation of additional property tax.
4. The stimulation of adjacent areas in the City by introducing new industrial facility and opportunities.
5. The implementation of numerous City planning and economic development policies which benefit the health and fiscal welfare of the City and its residents.
6. The implementation of enhanced environmental measures.
SECTION 4. Development Agreement Approval. Pursuant to California Government Code sections 65865 et seq., the City Council hereby approves the AGR No. 24-002 between Developer and the City, a copy of which is on file with the City Clerk and attached hereto as “Exhibit A”.
SECTION 5. Recordation. The City Clerk shall cause to be recorded with the San Bernardino County Recorder a copy of the executed development agreement at the time and in the manner provided for in the development agreement.
SECTION 6. Effective Date/Publication. This Ordinance shall take effect thirty (30) days after the date of the adoption, and prior to the expiration of the 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 general circulation, published and circulated in the City of Fontana, and henceforth and thereafter the same shall be in full force and effect.
SECTION 7. Custodian of Records. The documents and materials that constitute the record of proceedings on which this Ordinance is based are located at the City Clerk’s office located at 8353 Sierra Avenue, Fontana, CA 92335. The custodian of records is the City Clerk.
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 28th day of May 2024.
READ AND APPROVED AS TO LEGAL FORM:
City Attorney
I, Germaine McClellen 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 14 th day of May 2024, and was finally passed and adopted not less than five days thereafter on the 28th day of May 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
RECORDING REQUESTED BY:
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
DEVELOPMENT AGREEMENT (AGR) NO. 24-002
A DEVELOPMENT AGREEMENT BETWEEN
CITY OF FONTANA
a California Municipal Corporation
("City")
and
PROLOGIS EXCHANGE 11115 HEMLOCK AVENUE LLC
("Owner")
DEVELOPMENT AGREEMENT (AGR) NO. 24-002
This Development Agreement (hereinafter "Agreement") is entered into effective on the date it is recorded with the San Bernardino County Recorder (hereinafter the "Effective Date") by and among the City of Fontana, a California municipal corporation (hereinafter, "CITY"), and PROLOGIS EXCHANGE 11115 Hemlock Avenue LLC, a Delaware limited liability company, (hereinafter, "OWNER"):
RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement with respect to the redevelopment of that certain real property (APN Nos. 0237-131-25, 0237-131--26 and 0237-131-27) located at 11115 Hemlock Avenue in the City of Fontana, and situated south of Santa Ana Avenue, north of Jurupa Avenue, east of Hemlock Avenue, and west of Beech Avenue in the CITY, 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 future City Councils of CITY by the obligations spe cified 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 Planning Commission of the City of Fontana reviewed and considered the Supplemental Environmental Impact Report ("SEIR") and Mitigation Monitoring and Reporting Program ("MMRP") and made findings concerning the SEIR and 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, Design Review (DRP) No. 22 -064 and Tentative Parcel Map (TPM 20710) No. 23-012, and certified the SEIR prepared for the Project; and WHEREAS, this Agreement and the Project are consistent with the CITY's Comprehensive General Plan and any Specific Plan applicable thereto; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and
WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary improvements, provide for publi c 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 order to assure development of the Property in accordance with this Agreement; and WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.
COVENANTS
NOW, THEREFORE, in consideration of the above recitals and of the mutual covenants hereinafter contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS AND EXHIBITS.
1.1 Definitions. The following terms when used in this Agreement shall be defined as follows:
1.1.1 "Agreement" means this Development Agreement.
1.1.2 "CITY" means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.
1.1.3 "Development" means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. "Development" does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.
1.1.4 "Development Agreement Policies" means t hose certain development agreement policies approved by CITY pursuant to Resolution No. 85-217, adopted on November 5, 1985, as may be amended.
1.1.5 "Development Approvals" means all permits and other entitlements for use subject to approval or issuance by CIT Y in connection with development of the Property including, but not limited to:
(a) conditional use permits and design review permits;
(b) General Plan and Zoning Code amendments;
(e) grading, encroachment and building permits.
1.1.6 "Development Exaction" means any requirement of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.
1.1.7 "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 a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, but does not include park 'iin 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 o r 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).
1.1.8 "Development Plan" means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.
1.1.9 "Effective Date" means the date the ordinance approving this Agreement becomes effective.
1.1.10 "Existing Development Approvals" means all Development Approvals approved or issued prior to the Effective Date.
1.1.11 "Existing Land Use Regulations" means all Land Use Regulations in effect on the Effective Date.
1.1.12 "General Plan" means the General Plan adopted on November 13, 2018 by Resolution No. 2018-097.
1.1.13 "Land Use Regulations" means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the
development of the property. "Land Use Regulations" does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of rights and interests which provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.
1.1.14 "OWNER" means the persons and entities listed as OWNER on page 1 of this Agreement and their successors in interest to all or any part of the Property.
1.1.15 "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 Planning Commission Resolution No. ' 0'1-4- 01,,- ,2024 in conjunction with the Planning Commission certification of the EIR.
1.1.16 "Mortgagee" means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.
1.1.17 "Project" means the development of the Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Agreement.
1.1.18 "Property" means the real property described on 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 "Subsequent Development Approvals" means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
1.1.21 "Subsequent Land Use Regulations" means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.
1.1.22 "Warehouse Indirect Source Rule" means the current version (May 7, 2021) of the South Coast Air Quality Management District's Rule 2305 Warehouse Indirect Source Rule.
1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:
Exhibit "A" - Legal Description of the Property.
Exhibit "B" - Map showing Property and its location.
Exhibit "C" - Existing development approvals.
2. GENERAL PROVISIONS.
2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.
2.2 Ownership of Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the Property or a portion thereof, and shall be so on the date of recordation of this Agreement in the office of the San Bernardino County Recorder. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of t he Property prior to the Effective Date agreeing to the terms of this Agreement and the recordation thereof in the office of the San Bernardino County Recorder.
2.3 Term; Tolling of Agreement. The initial term of this Agreement ("Term") shall commence upon exp iration of the initial two (2) year period for OWNER to exercise OWNER's rights under the Development Approvals, which period may be tolled in the event of litigation challenging CITY's issuance of the Development Approvals as set forth below, 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.
The commencement of the Term of this Agreement shall be automatically tolled in the event of a third party lawsuit challenging CITY's issuance of the Development Approvals, and shall remain tolled and in abeyance until such time as the legal action is dismissed and/or a final judgment is entered by the court resolving the action, and all applicable appeal periods are expired and/or exhausted.
2.4 Assignment.
2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 664 10 et seq., to any person, partnership, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property.
(b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY, in writing, of such sale,
transfer or assignment and shall provide CITY with an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement.
Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by Owner under this Agreeme nt. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4 .1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefi ts of this Agreement shall not inure to such purchaser, transferee 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 Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring OWNER is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring OWNER of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the Property.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above.
2.4.3 Subsequent Assignment. Any subsequent sale, transfer or assignment after an initial sale, transfer or assignment shall be made only in accordance with and subject to the terms and conditions of this Section.
2.4.4 Partial Release of Purchaser, Transferee or Assignee of Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot, which has been finally subdivided as provided for in the Development Plan and for which a commercial or industrial plot plan for development of the lot has been finally approved pursuant to the Development Plan, may submit a request, in writing, to CITY to release said lot from the obligations under this Agreement relating to all other portions of the property. Within thirty (30) days of such request, CITY shall review, and if the above conditions are satisfied shall approve the request for release and notify the purchaser, transferee or assignee in writing thereof. No such release approved pursuant to this Subsection
2.4.4 shall cause , or otherwise affect, a release of OWNER from its duties and obligations under this Agreement.
2.5 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 Sections 65865 .1 or 65868 and the Development Agreement Policies. Any 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 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 entering into this Agreement in the first instance.
2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.
Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to hav e been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement.
2.7 Notices.
(a) As used in this Agreement, "notice" includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below; or (iii) on the date of delivery shown in the records of the telegraph company after transmission by telegraph to the recipient named below. All notices shall be addressed as follows:
If to CITY:
City of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600
Copy to:
Best Best & Krieger LLP
3500 Porsche Way, Suite 200
Ontario, CA 91764
Attn: City Attorney
Telephone: (909) 989-8584
lfto OWNER:
Prologis
1800 Wazee Street, Suite 500
Denver, Colorado, 80202
Attn: General Counsel
Telephone: (303) 567-5395
Copy to:
Allen Matkins Leck Gamble Mallory & Natsis, LLP
2010 Main Street, 8th Floor
Irvine, CA 92614
Attn: Jonathan E. Shardlow, Esq.
Telephone: (949) 553-1313
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.
3. DEVELOPMENT OF THE PROPERTY.
3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.
3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications
applicable to development of the Property shall be the Existing Land Use Regulations.
In connection with any Subsequent Development Approval, CITY shall exercise its discretion in accordance with the Development Plan, and as provided by this Agreement including, but not limited to, the Reservations of Authority. CITY shall accept for processing, review and action all applications for Subsequent Development Approvals, and such applications shall be processed in the normal manner for processing such matters.
3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed.
Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo, (1984) 37 Cal.3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties' agreement, it is the parties' intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan.
3.4 Enhanced Environmental Measures; Development of the Property shall be subject to all timing and phasing requirements established by the Development Plan, except that OWNER has committed to implement certain environmental measures in conjunction with the Project's future operation such that:
(a) To the extent that a building permit has not been issued for the Project and construction commenced in reliance on a building permit by December 31, 2026, OWNER acknowledges and agrees that OWNER shall cause the Project to achieve 110% of the WAIRE Points Compliance Obligation for the Project for a period of five (5) years under the current standards (May 7, 2021) of the South Coast Air Quality Management District's Rule 2305 Warehouse Indirect Source Rule. (b) To the extent that a building permit has not been issued for the Project and construction comme nced in reliance on a building permit by December 31, 2031, OWNER acknowledges and agrees that OWNER shall cause the Project to achieve, in the City's sole discretion, for a period of five (5) years, either (i) 125% of the WAIRE Points Compliance Obligation for the Project under the current standards (May 7, 2021) of the South Coast Air Quality Management District's Warehouse Indirect Source Rule or (ii) 110% of the WAIRE Points Compliance Obligation for the Project under the standards for the South Coast Air Quality Management District's Warehouse Indirect Source Rule in effect at the time of the Project's first building permit issuance. Evidence of the increased WAIRE Points Compliance Obligation for the Project being met shall be promptly provided by OWNER to CITY based on written correspondence from South Coast Air Quality Management District.
(c) OWNER acknowledges and agrees to make a payment to CITY in the amount of $20,000 upon the issuance of the first building permit for the Project for
CITY's time and oversight in ensuring that activities are conducted in a manner designed and intended to achieve compliance with the requirements of 3.4 (a) and, if applicable, 3.4 (b).
(d) OWNER acknowledges and agrees, to the extent that a permit has not been issued of the Project's building by December 31, 2030, to make a further payment to CITY in the amount of $20,000 upon the issuance of a building permit for its time and oversight in ensure that operational activities occurring on the P roperty on or after January 1, 2031, are conducted in a manner so as to achieve 125% of the WAIRE Points Compliance Obligation for the Project. Evidence of the increased WAIRE Points Compliance Obligation for the Project being met shall be provided by OWNER to CITY based on written correspondence from South Coast Air Quality Management District. (e) To the extent that South Coast Air Quality Management District's Rule 2305 (Warehouse Indirect Source Rule) has been voided, lapsed, or otherwise ceases to exist, OWNER acknowledges and agrees that for the term of this Agreement, OWNER shall continue to meet 100% of the WAIRE Points Compliance Obligation for the Project under the current standards of the Warehouse Indirect Source Rule.
3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existin g Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit "C", and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY's reasonable discretion, a change to the Existing Development Approvals shall be deemed "minor" and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.
3.6 Reservations of Authority.
3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Property.
(a) Processing fees and charges of every kind and nature imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued.
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations governing construction standards and
specifications including, without limitation, the CITY's Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the Property. No such subsequently adopted Development Exaction shall apply if its application to the Property would physically prevent development of the Property for the uses and to the density or intensity of development set forth in the Development Plan. In the event any such subsequently adopted Development Exaction fulfills the same purposes, in whole or in part, as the fees set forth in Section 4 of this Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Agreement to the extent such fees fulfill the same purposes.
(e) Regulations which may be in conflict with the Development Plan but which are reasonably necessary to protect the public health and safety. To the extent possible, any such regulations shall be applied and construed so as to provide OWNER with the rights and assurances provided under this Agreement. (f) Regulations which are not in conflict with the Development Plan. Any regulation, whether adopted by initiative or otherwise, limiting the rate or timing of development of the Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Property. (g) (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 Subsequent Land Use Regulations which do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.
3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce.
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 exc eptions are intended to reserve to CITY all of its police power which cannot be so limited . This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.
3.7 Public Works. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction.
3.8 Provision of Real Property Interests by CITY. In any instance where OWNER is required to construct any public improvement on land not owned by OWNER, OWNER shall at its sole cost and expense provide or cause to be provided, the real property interests necessary for the construction of such public improvements.
In the event OWNER is unable, after exercising reasonable efforts, including, but not limited to, the rights under Sections 1001 and 1002 of the Civil Code, to acquire the real property interests necessary for the construction of such public improvements, and if so instructed by OWNER and upon OWNER'S provision of adequate security for costs CITY may reasonably incur, CITY shall negotiate the purchase of the necessary real property interests to allow OWNER to construct the public improvements as required by this Agreement and, if necessary, in accordance with the procedures established by law, use its power of eminent domain to acquire such required real property interests . OWNER shall pay all costs associated with such acquisition or condemnation proceedings. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.
3.9 Regulation by Other Public Agencies . It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies.
3.12 Utilities. The Project shall be connected to all utilities necessary to provide adequate water, sewer, gas, electric, and other utility service to the Project.
OWNER shall contract with the CITY for CITY-owned or operated utilities serving the Project for such prices and on such terms as may be mutually agreed to between the parties.
4. DEFAULT AND REMEDIES.
4.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.
In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.
4.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY.
(b) Due to the size, nature and scope of the project, it m ay not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.
4.3 Release. Except for non -damage remedies, including the remedy of specific performance and judicial review as provided for above, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, kn own or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage,
whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.
4.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement including providing CITY with the ability to cancel or fail to renew the business license of OWNER in the event of OWNER's default of its obligations under Section 3.4 of this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as "Default"); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of Default setting forth the nature of the default and the actions, if any, required by OWNER to cure such Default and, where the Default can be cured, OWNER has failed to take such actions and cure such Default within 60 days after the effective date of such notice or, in the event that such Default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such Default within such 60 day period and to diligently proceed to complete such actions and cure such default.
4.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.
5. THIRD PARTY LITIGATION.
5.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, herein called General Plan, and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY's determination.
CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.
5.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys' fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall
cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.
5.3 Indemnity. In addition to the provisions of 5.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER's employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole acti ve negligence or sole willful misconduct of CITY. 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.
5.4 Environment 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, i ts 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.
5.5 Reservation of Rights. With respect to Sections 5.2, 5.3 and 5.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys' fees, upon billing and accounting therefor.
5.6 Survival. The provisions of this Sections 3.4, and 5.1 through 5.6, inclusive, shall survive the termination of this Agreement, and for such purposes this Agreement shall remain recorded in the office of San Bernardino County Recorder in the event the enhanced environmental measures obligations set forth in Section 3.4 have been triggered and only for so long as the enhanced environmental measures obligations are effective.
6. MORTGAGEE PROTECTION.
The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER's sole discretion, from encumbering the Property or any
portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided s uch interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER's obligations under this Agreement.
(c) If CITY timely receives a request from a mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement.
(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER's obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY , the performance thereof shall continue to be a condition precedent to CITY's performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.
7. MISCELLANEOUS PROVISIONS.
7.1 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 Cede.
7.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written
representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.
7.3 Severability. If any term, provision, covenant or condition o f 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 thi s Agreement. Notwithstanding the foregoing, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.
7.4 Governing Law; Interpretation . This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
7.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.
7.6 Singular and Plural. As used herein, the singular of any word includes the plural.
7.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one OWNER, all obligations of such OWNERS under this Agreement shall be joint and several, and the default of any such OWNER shall be the default of all such OWNERS. Notwithstanding the foregoing, no OWNER of a single lot which has been finally subdivided and sold to such OWNER as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.
7.8 Time of Essence. Time is of the essence in the performance of .the provisions of this Agreement as to which time is an element.
7.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party's right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.
7.10 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.
7.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, epidemics, pandemics, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party's control, (including the party's employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party's control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.
7.12 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.
7.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.
7.14 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.
7.15 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.
7.16 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 e ntity regulating the development of private property and the owner of such property.
7.17 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.
7.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.
7.19 Aqe,nt for Service of Process. In the event OWNER is not a resident of the State of Caiifornia or it is an association, partnership or joint venture without a member, partner or joint venture 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 notfeasible, 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).
7.20 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.
IN WITNESS WHEREOF, the parties hereto have executed this Development Agreement on the last day and year set forth below.
OWNER: PROLOGIS EXCHANGE 11115
By: ELLC
Christian Cochrun
lts:Vf Div fi lCJG'/J1 0 '{J1'L.,
Dated:.3 /;).() 4
SEE
ATTACHED
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT CIVIL CODE§ 1189
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State of California
County of San Bernardino
On March 28, 2024
Date
before me, Brent Philip Guerrero, Notary Public
Here Insert Name and Title of the Officer
personally appeared Christian Cochrun
Name(s) of Signer(s)
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
Signature .¾
Signature of ublic
Place Notary Seal Above
----------------OPTIONAL----------------
Though this section is optional, completing this information can deter alteration of the document or fraudulent reattachment of this form to an unintended document.
Description of Attached Document
Title or Type of Document: Development Agreement (ARG) NO. 24-002 Document Date: March 28, 2024 Number of Pages: _2_8
Signer(s) Other Than Named Above:
Capacity(ies) Claimed by Signer(s)
Signer's Name: _C_hr_is_tia_n_C_oc_h_ru_n
Corporate Officer - Title(s): VP, Development Officer
□ Partner - □ Limited □ General
□Individual □ Attorney in Fact
□ Trustee □ Guardian or Conservator
□Other:
Signer Is Representing: P_ro_lo g is
Signer's Name: _
□ Corporate Officer - Title(s):
□ Partner - □ Limited □ General
□ Individual □ Attorney in Fact
□ Trustee □ Guardian or Conservator
□ Other:
Signer Is Representing:
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©2015 National Notary Association• www.NationalNotary.org • 1-800-US NOTARY (1-800-876-6827) Item #5907
Notary Public • California z
S.in rnardino County
Commission# 2403382
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.
CITY:
CITY OF FONTANA, a California
municipal corporation
By: _
Acquanetta Warren, Mayor
Dated:
By: _
Matthew C. Ballantyne, City Manager
ATTEST:
By: _
Germaine Key, City Clerk
APPROVED AS TO LEGAL FORM:
BEST BEST & KRIEGER LLP
Ruben Duran, City Attorney
7 ACKNOWLEDGMENT
State of California
County of )
On before me
personally appeared , '( ni s e rt:-;n:;-::a m:::e a=-nd::;--;-:ti-;-;-tle-othf-_:-e:_o_ff_i-ce 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 California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Signature (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.
EXHIBIT A
LEGAL DESCRIPTION
THE LAND REFERRED TO IN THIS POLICY IS DESCRIBED AS FOLLOWS:
REAL PROPERTY IN THE CITY OF FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:
PARCEL 1:
PARCEL A AS SHOWN ON CERTIFICATE OF COMPLIANCE FOR A LOT LINE ADJUSTMENT LLA NO. 98-01, AS EVIDENCED BY DOCUMENT RECORDED APRIL 01, 1998 AS INSTRUMENT NO. 19980121425 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF LOT 964 OF MAP SHOWING SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, ON FILE IN BOOK 11 OF MAPS AT PAGE 12, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA.
EXCEPTING THEREFROM THE SOUTH 310 FEET.
PARCEL 2:
PARCEL B AS SHOWN ON CERTIFICATE OF COMPLIANCE FOR A LOT LINE ADJUSTMENT LLA NO. 98-01, AS EVIDENCED BY DOCUMENT RECORDED APRIL 01, 1998 AS INSTRUMENT NO. 19980121425 OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:
ALL OF LOT 965 OF MAP SHOWING SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, ON FILE IN BOOK 11 OF MAPS AT PAGE 12, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA, TOGETHER WITH THE SOUTH 310 FEET OF LOT 964 OF MAP SHOWING
SUBDIVISION OF LANDS BELONGING TO THE SEMI-TROPIC LAND AND WATER COMPANY, ON FILE IN BOOK 11 OF MAPS AT PAGE 12, RECORDS OF SAN BERNARDINO COUNTY, CALIFORNIA.
29 of 33
EXHIBIT B
PROPERTY LOCATION
30 of 33
Exhibit C - Development Approvals (Tentative Parcel Map ) 31 of 33
Exhibit C - Development Approvals (Site Plan)
32 of 33
Exhibit C - Development Approvals (Elevations)
33 of 33