Agenda packet — Fontana City Council, June 9, 2026 (part 1 of 4)

Tuesday, June 9, 2026
2:00 PM
City of Fontana
8437 Sierra Avenue
Fontana, CA 92335
Revised Agenda
Ord. No. 1988 Reso. No. 2026-032
Steelworkers' Auditorium
8437 Sierra Avenue
Fontana, Ca. 92335
City Council Meeting
Acquanetta Warren - Mayor
Peter A. Garcia - Mayor Pro Tem
John B. Roberts - Council Member
Jesus "Jesse" Sandoval - Council Member
Phillip Cothran - Council Member
Germaine Key - City Clerk
Janet Koehler-Brooks, City Treasurer
1 City Council Meeting Revised Agenda June 9, 2026
Welcome to a meeting of the Fontana City Council.

Welcome to a meeting of the Fontana City Council. Meetings are held at the Steelworker's Auditorium 8437 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 Steelworker's Auditorium 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.

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 Steelworker's Auditorium. All bags are subject to search. Face masks are prohibited in the Steelworker's Auditorium, but clear masks will be provided upon request to accommodate individuals with medical needs, ensuring their safety and well-being. Before entering the Steelworker's Auditorium, 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:

CEREMONIAL:

A. Ceremonial
A. Mayor Warren and City Council to recognize Outgoing
Planning Commissioner Idilio Sanchez.
26-1069
B. Mayor Warren and the City Council to accept the 2026 San Bernardino’s Best Readers’ Choice Award, presented to
Fontana Arts by the San Bernardino Sun Newspaper.
26-1055
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

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2 City Council Meeting Revised Agenda June 9, 2026
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 26-1052
Approve the minutes of May 26, 2026, Regular City Council Meeting.

Attachment No. 1- City Council Meeting Minutes 05-26-2026.pdfAttachments:

B. Adoption of Ordinance No. 1988 (Second Reading), Amending Article XV Pertaining To Provisions Of The No Net Loss
Program Including Sections 30-966 Through 30-969 And
Sections 30-971 And 30-972, Pursuant To A Categorical
Exemption In Accordance With CEQA Guidelines Sections
15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.
26-1047
Conduct a second reading by title only and adopt, Ordinance No. 1988, Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Article XV Pertaining To Provisions Of The No Net Loss Program Including Sections 30-966 Through 30-969 And Sections 30-971 And 30-972, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.

Attachment No. 1- Ord.No.1988Attachments:

C. Adoption of Ordinance No. 1989 (Second Reading), Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Sec. 30-12 Pertaining To The Definition Of Accessory Use, Principal /Primary Use, Vehicle And Truck Storage And Vehicle And Truck Parking; Sec. 30-21 Pertaining To The Expiration Of Entitlement Applications; Sec. 30-360 Pertaining To Outdoor Dining In The Public Right-Of-Way In The Downtown Core; Sec. 30-371.2 Pertaining To Parking
Requirements For Retail, Entertainment And Restaurant Uses 26-1048

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3 City Council Meeting Revised Agenda June 9, 2026
In The Downtown Core; Sec. 30-390 To Correct Section
References, Pursuant To A Categorical Exemption In
Accordance With CEQA Guidelines Sections 15060(C),
15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.

Attachment No. 1-Ord. No. 1989Attachments:

D. Adoption of Ordinance No. 1990 (Second Reading), Approving Development Agreement (Goodman) No 19-000002R1 for
Assessor’s Parcel Numbers: 0255-091-20, - 23, - 63, - 64, and -65.
26-1049
Conduct a second reading by title only and adopt, Ordinance No. 1990, Approving Development Agreement No 19-000002R1 for Assessor’s Parcel Numbers: 0255-091-20, -23, -63, -64, and -65.

Attachment No. 1- Ord. No.1990.docxAttachments:

E. Adoption of Ordinance No. 1991 (Second Reading), Approving Development Agreement (Acacia) No 23-0085R1, as to
Assessor’s Parcel Number 0255-021-17
26-1050
Conduct a second reading by title only and adopt, Ordinance No. 1991, Approving Development Agreement No 23-0085R1, as to Assessor’s Parcel Number 0255-021-17
Attachment No. 1- Ord. No. 1991.docxAttachments:

F. Adoption of Ordinance No. 1992 (Second Reading) Approving Development Agreement (North Palisades) No 23-0085R2, as to Assessor ’s Parcel Numbers 0255-011-13, 0255-011-14, 0255-011-18, 0255-011-19 AND 0255-011-25 thru 0255-011-32 26-1051
Conduct a second reading by title only and adopt, Ordinance No. 1992, Approving Development Agreement No 23-0085R2, as to Assessor’s Parcel Numbers 0255-011-13, 0255-011-14, 0255-011-18, 0255-011-19 AND 0255-011-25 thru 0255-011-32

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4 City Council Meeting Revised Agenda June 9, 2026
Attachment No. 1- Ord No. 1992.docxAttachments:

G. Award a Construction Contract for the Baseline Avenue at Palmetto Avenue Traffic Signal Project (Bid No. DE-26-161-SB) 26-0996

1. Award bid and authorize City Manager to enter into a construction contract with California Professional Engineering, Inc. for the Baseline Avenue at Palmetto Avenue Traffic Signal Project in the amount of $1,094,777.92 and authorize a 10% contingency in the amount of $109,477.79 (Bid No. DE-26- 161-SB).

2. Approve and authorize the City Manager to enter into any and all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Baseline Avenue at Palmetto Avenue Traffic Signal Project (Bid No. DE-26-161-SB).

Attachment No. 1- Vicinity Map
Attachment No. 2- Bid Results
Attachment No. 3- Bid Detail
Attachments:

H. Initiation and Intention to Levy Assessments for 2026-27 for Landscape and Lighting Maintenance Districts
26-1042

1. Adopt Resolution No. 2026-032, of the City of Fontana, California, Initiating Proceedings to Levy and Collect Assessment Within Landscape Maintenance District No. 1 for 2026-27 and Ordering the Preparation of the Engineer’s Report Therefore.

2. Adopt Resolution No. 2026-033, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 1 ("LMD #1") for 2026-27 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.

3. Adopt Resolution No. 2026-034, of the City of Fontana, California, Initiating Proceedings to Levy and Collect Assessment Within Landscape Maintenance District No. 2 for 2026-27 and Ordering the Preparation of the Engineer’s Report Therefore.

4. Adopt Resolution No. 2026-035, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 2 ("LMD # 2") for 2026-27 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.

5. Adopt Resolution No. 2026-036, of the City of Fontana, California, Initiating Proceedings to Levy and Collect Assessment Within Landscape Maintenance District No. 3 for 2026-27 and Ordering the Preparation of the Engineer’s Report Therefore.

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5 City Council Meeting Revised Agenda June 9, 2026

6. Adopt Resolution No. 2026-037 of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 3 ("LMD # 3") for 2026-27 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.

7. Adopt Resolution No. 2026-038, of the City of Fontana, California, Initiating Proceedings to Levy and Collect Assessment Within Landscape Maintenance District No. 3-1 for 2026-27 and Ordering the Preparation of the Engineer’s Report Therefore.

8. Adopt Resolution No. 2026-039, of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Landscape Maintenance District No. 3-1 ("LMD # 3-1") for 2026-27 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.

9. Adopt Resolution No. 2026-040, of the City of Fontana, California, Initiating Proceedings to Levy and Collect Assessment Within Local Lighting Maintenance District No. 3 for 2026-27 and Ordering the Preparation of the Engineer’s Report Therefore.

10. Adopt Resolution No. 2026-041 , of the City of Fontana, California, Declaring its Intention to Levy and Collect Assessments within Local Lighting Maintenance District No. 3 ("LLMD # 3") for 2026-27 and Giving Notice of and Setting the Time and Place of the Hearing on the Levy of the Proposed Assessment.

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6 City Council Meeting Revised Agenda June 9, 2026
Attachment No. 1 - LMD 1 Resolution of Initiation
Attachment No. 2 - LMD 1 Resolution of Intent
Attachment No. 3 - LMD 1 Engineer's Report
Attachment No. 4 - LMD 1 Map
Attachment No. 5 - LMD 2 Resolution of Initiation
Attachment No. 6 - LMD 2 Resolution of Intent
Attachment No. 7 - LMD 2 Engineer's Report
Attachment No. 8 - LMD 2 Map
Attachment No. 9 - LMD 3 Resolution of Initiation
Attachment No. 10 - LMD 3 Resolution of Intent
Attachment No. 11 - LMD 3 Engineer's Report
Attachment No. 12 - LMD 3 Map
Attachment No. 13 - LMD 3-1 Resolution of Initiation
Attachment No. 14 - LMD 3-1 Resolution of Intent
Attachment No. 15 - LMD 3-1 Engineer's Report - Annex 1 Attachment No. 16 - LMD 3-1 Map
Attachment No. 17 - LLMD 3 Resolution of Initiation
Attachment No. 18 - LLMD 3 Resolution of Intent
Attachment No. 19 - LLMD 3 Engineer's Report
Attachment No. 20 - LLMD 3 Map
Attachments:

I. Final Acceptance of Street, Storm Drain, Sewer, Landscape, and Signing & Striping Improvements on the northeast corner of Summit Avenue and Citrus Avenue for Tract No. 18825
(Taylor Morrison)
26-1014

1. Accept as complete the street, storm drain, sewer, landscape, and signing & striping improvements for Tract No. 18825, located on the northeast corner of Summit Avenue and Citrus Avenue.

2. Adopt Resolution No. 2026-042 , accepting sewers in Tract No. 18825 as part of the City sewer system.

Attachment No. 1- TR 18825 - SEWER ACCEPTANCE
RESOLUTION.docx
Attachment No. 2- TR 18825 - VICINITY MAP.pdf
Attachment No. 3- TR 18825 - MAP.pdf
Attachment No. 4- TR 18825 - BOND.pdf
Attachments:

J. Final Acceptance of Street, Storm Drain, Sewer, Landscape, and Signing & Striping Improvements on the northeast corner of Summit Avenue and Citrus Avenue for Tract No. 18915
(Taylor Morrison)
26-1016

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7 City Council Meeting Revised Agenda June 9, 2026

1. Accept as complete the street, storm drain, sewer, landscape, and signing & striping improvements for Tract No. 18915, located on the northeast corner of Summit Avenue and Citrus Avenue.

2. Adopt Resolution No. 2026-043 , accepting sewers in Tract No. 18915 as part of the City sewer system.

Attachment No. 1- TR 18915 - SEWER ACCEPTANCE
RESOLUTION.docx
Attachment No. 2- TR 18915 - VICINITY MAP.pdf
Attachment No. 3- TR 18915 - MAP.pdf
Attachment No. 4- TR 18915 BOND.pdf
Attachments:

K. Adopt a Resolution of the City Council of the City of Fontana, California, Approving a Right-of-Way Use Agreement with Arcadian Infracom 2, LLC for the Installation, Operation, and Maintenance of Telecommunication Facilities, Pursuant to CEQA Guidelines Sections 15303 and in the Alternative 15301, and Authorizing Filing of a Notice of Exemption
26-1018

1. Adopt Resolution No. 2026-044 , approving a Right-of-Way Use Agreement with Arcadian Infracom 2, LLC for the installation, operation, and maintenance of Telecommunication Facilities Pursuant to CEQA Guidelines Section 15303 and in the Alternative 15301, and authorizing filing of a Notice of Exemption.

2. Authorize the City Manager, or designee, to enter into the Agreement.

Attachment No. 1- Reso. Approving a Right of Way Use
Agreement with Arcadian Intracom 2 LLC for
Telecommunication Facilities.-c1.docx
Attachment No. 2- Fontana Encroachment Agreement-Arcadian (FINAL)-c1 DSH.docx
Attachment No. 3- Vicinity Map.pdf
Attachments:

L. Consideration of Release Agreement ( “Release Agreement ”) by and between the City of Fontana and HDO 4, LLC to release certain property from the land subject to that certain
Disposition Agreement entered into by the City of Fontana and HDO4, LLC approved by the City on July 2, 2020 (“Disposition Agreement”) in furtherance of promoting buildout of the Ventana at Duncan Canyon Specific Plan ( “Specific Plan ”), pursuant to an exemption from CEQA in accordance with
CEQA Guidelines Sections 15060(c)(2), 15064(d), and 15378. 26-1021
Adopt Resolution No. 2026-045, a resolution of the city council of the City of Fontana, California, approving a release agreement releasing certain real property from the obligations, conditions, and restrictions of that certain

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8 City Council Meeting Revised Agenda June 9, 2026
disposition agreement approved by the city council of the City of Fontana on July 2,2020 by and between the city of Fontana and hdo4, LLC and determining that the action is exempt from the California environmental quality act in accordance with CEQA guidelines sections 15060(c)(2), 15064(d), and 15378.

Attachment No. 1 - Resolution Approving Release Agreement Attachment No 2 - Release of Disposition Agreement (PA4) Attachments:

M. Approve an Agreement and Permit to enter with Fontana Courtplace I Housing L .P. related to certain real property located at 11196 Sierra Avenue, in Fontana, California
26-1040

1. Determine the approval of the Agreement and Permit to Enter authorizing temporary access and use of an existing property area for construction staging purposes is categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Section 15301 (Existing Facilities) and directs staff to file the notice of exemption.

2. Approve the Agreement and Permit to Enter with Fontana Courtplace I Housing L.P. Related to Certain Real Property Located at 11196 Sierra Ave, In Fontana, California; and

3. Authorize the City Manager, or designee, to execute the Agreement and any non-substantive revisions necessary to implement the Agreement.

Attachment No. 1- Courtplace Permit and Agreement to
Enter-c1.docx
Attachment No. 2- Phase 2 Staging Area Exhibit.pdf
Attachments:

N. Co-Sponsorship Application Cycle One (1) FY 2026/2027 26-1060

1. Review, and approve the sixteen ( 16) Co-Sponsorship Applications for the 2026/2027 fiscal year (July 2026 through June 2027) totaling an amount of $71,235.00 as recommended by the Parks, Community, and Human Services Commission.

2. Consider a budget adjustment for a total of $100,000 for the co-sponsorship program to be included in the 2026/2027 first-quarter requests.

Attachment A Co-Sponsorship Policy.pdf
Attachment B_Feb '26.pdf
Attachment C_Feb '26.pdf
Attachment D w_out Revenue Loss_Feb. '26.pdf
Attachment E_Priority Matrix_Feb '26.pdf
Attachments:

O. Calling of the November 3, 2026, General Municipal Election; Requesting Consolidation with the Statewide General Election to be conducted by the San Bernardino County Registrar of 26-1056

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9 City Council Meeting Revised Agenda June 9, 2026
Voters; and Providing Regulations for Candidates

1. Adopt Resolution No. 2026-046, a Resolution of the City Council of the City of Fontana, California, Calling And Giving Notice of a General Municipal Election to be held in the City of Fontana on Tuesday, November 3, 2026, for the Election of Certain Officers of the City as Required By the Provisions of the Laws of The State of California Relating To General Law Cities;

2. Adopt Resolution No. 2026-047, a Resolution of the City Council of the City of Fontana, California, Requesting the Board of Supervisors of the County of San Bernardino to Consolidate a General Municipal Election to be held on November 3, 2026, with the Statewide General Election to be held on the date Pursuant To § 10403 of the Elections Code;

3. Adopt Resolution No. 2026-048, a Resolution of the City Council of the City of Fontana, California, Adopting Regulations for Candidates for Elective Office Pertaining to Candidates Statements Submitted to the Voters at a General Municipal Election to be held on Tuesday, November 3, 2026.

Attachment No. 1- Calling of the Election - Resolution No. 2026-046
Attachment No. 2- Request for Consolidation - SB County Board of Supervisors (Resolution No. 2024-046)
Attachment No. 3- Regulations for Candidates - Candidate Statements (Resolution No. 2024-047)
Attachments:

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. Conduct a Public Hearing on the City Workforce Vacancies, Recruitment, and Retention Trends Pursuant to Assembly
26-1012

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10 City Council Meeting Revised Agenda June 9, 2026
Bill 2561 (AB 2561)
Adopt Resolution No. 2026-050 a Resolution of the City Council of the City of Fontana, California, affirming that a public hearing and presentation on the status of the City’s vacancies, recruitment and retention efforts was conducted in accordance with Assembly Bill 2561.

Attachment No. 1- Resolution Adopting Public Hearing on Vacancies, and Recruit & Retain Efforts
Attachments:

B. Adopt a Resolution Vacating a Public Right-of-Way
Easement on Highland Avenue and Oleander Avenue and
Reserving any other Public Utility Easements
26-1030
Adopt Resolution No. 2026-049, a Resolution of the City Council of the City of Fontana, California, declaring that the Public Right-of-Way Easement over Highland Avenue and Oleander Avenue is unnecessary for present or prospective public use, and vacating the same pursuant to Streets and Highway Code Section 8320 et seq., and reserving an easement for public utility purposes.

Attachment No. 1- Resolution - Vacation - Highland &
Oleander - Final Draft.doc
Attachment No. 2- Legal & Plat - 05.20.2026 - FINAL
EXHIBIT A & B.pdf
Attachment No. 3 - Staff Report - Vicinity Map.pdf
Attachments:

NEW BUSINESS:

A. New Business
A. Adoption of Disruption of Telephonic or Internet Service During Meetings Policy
26-1029
Adopt Resolution No. 2026-051, approving the proposed Disruption of Telephonic or Internet Service During Meetings policy so that the city can be in compliance with the recent SB 707 changes to the Brown Act.

Attachment No. 1- Reso 2026-51 - Disruption of Telephonic or Internet Service During Meetings - SB 707 Compliance Attachment No. 2- Fontana Policy - Disruption of Telephonic or Internet Service During Meetings - SB 707
Compliance_DRAFT.docx
Attachments:

B. Fiscal Year 2026/27 Supplemental Budget Report - City of Fontana
26-1033

1. Approve the recommended Fiscal Year 2026/27 Supplemental Budget adjustments

2. Adopt Resolution No. 2026-052, of the City Council of the City of

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11 City Council Meeting Revised Agenda June 9, 2026
Fontana establishing a General Fund Appropriations limit of $419,975,336 pursuant to Article XIII (B) of the California Constitution for Fiscal Year 2026/2027.

3. Authorize the carryforward of available budget at fiscal yearend to the following fiscal year for all capital improvement projects and one-time funded initiative, and adjust supplemental fund balances.

4. Adopt Resolution No. 2026-053, of the City Council of the City of Fontana reassigning the Purchasing Specialist Classification to the Teamsters Local 1932 City Hall Unit, and approving the updated salary table for the Executive Employees, Fontana Police Benefit Association, Fontana Police Officers’ Association, Fontana Police Management Association, Management/Confidential Employees, Teamsters Local 1932 City Hall Unit, Teamsters Local 1932 Public Works Unit for Fiscal Year 2026/2027.

5. Approve the recommended Fiscal Year 2026/2027 Hourly Billing Rate Schedule.

FY26-27 Supplemental Budget Report DIGITAL COPY.pdf
Attachment No. 2- 2026-27 Resolution City GANN.doc
Attachment No. 3- CC Reso Exec, MC, CH, PW, PBA, POA,
PMA Salary Tables 06.09.2026.pdf
Attachment No. 4- FY 26-27 Hourly Rate Schedule - Exhibit A.pdf
Attachments:

CITY MANAGER COMMUNICATIONS:

A. City Manager Communications
ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

A. Elected Officials Communications/Reports
A. Discussion and Possible Action Regarding Appointment to the Planning Commission to Fill an Unscheduled Vacancy
for the Unexpired Term Ending December 9, 2026
26-1065
ADJOURNMENT:

A. Adjournment
Adjourn to the next Regular City Council Meeting on June 23, 2026, at 2:00 p.m. in the Steelworkers' Auditorium located at 8437 Sierra Avenue, Fontana, California.

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12 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1069 Agenda Date: 6/9/2026
Agenda #: A. Category: Ceremonial Items
Ceremonial
Tuesday, June 9, 2026
2:00 P.M.

Steelworkers’ Auditorium
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Printed on 6/4/2026Page 1 of 1
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13 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1055 Agenda Date: 6/9/2026
Agenda #: B. Category: Ceremonial Items
Ceremonial
Tuesday, June 9, 2026
2:00 P.M.

Steelworkers’ Auditorium
City Council
Acquanetta Warren, Mayor
Peter Garcia, Mayor Pro Tem
John Roberts, Council Member
Jesus “Jesse” Sandoval, Council Member
Phillip W. Cothran., Council Member
City of Fontana Printed on 6/4/2026Page 1 of 1
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14 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1052 Agenda Date: 6/9/2026
Agenda #: A. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Approval of Minutes
RECOMMENDATION:

Approve the minutes of May 26, 2026, 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 May 26, 2026, 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 6/4/2026Page 1 of 1
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City of Fontana

8437 Sierra Avenue
Fontana, CA 92335

Minutes

Tuesday, May 26, 2026

2:00 PM

Steelworkers' Auditorium
8437 Sierra Avenue
Fontana, Ca. 92335
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

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CLOSED SESSION:

A. 1:30 P.M. CLOSED SESSION
The Closed Session meeting of the Fontana City Council was held at the Steelworkers’ Auditorium, 8437 Sierra Avenue, Fontana, CA 92335, on Tuesday, May 26, 2026.

Mayor Warren called the meeting to order at 1: 32 p.m. with all members of the City Council present except Council Member Sandoval.

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

PUBLIC COMMUNICATION - CLOSED SESSION:

There were no public communications received for the following items:

1. CONFERENCE WITH LEGAL COUNSEL – EXISTING LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9 (a) Name of case: Inland Coalition for Immigrant Justice v. City of Fontana.

CALL TO ORDER/ROLL CALL:

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

The Regular Meeting of the Fontana City Council was held in the Steelworkers’ Auditorium , 8437 Sierra Avenue, Fontana, CA 92335, on Tuesday, May 26, 2026.

Mayor Warren called the Regular City Council Meeting to order at 2:04 p.m.

ROLL CALL:

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

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

ABSENT: None

INVOCATION/PLEDGE OF ALLEGIANCE:

The invocation was given by Council Member Roberts, followed by the pledge of allegiance led by Council Member Cothran.

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CLOSED SESSION ANNOUNCEMENT:

City Attorney Ruben Duran reported that the City Council met in Closed Session on the item s listed on the agenda, provided direction to staff, and took no reportable action.

PUBLIC COMMUNICATIONS:

The following individuals spoke under public communications:

John Pedroza called for the removal of a Parks, Community and Human Services Commissioner, citing alleged misconduct during a police- involved incident resulting in a death, and referenced ongoing investigations and legal action related to the case.

Isabel Rios called for the removal of a Parks, Community and Human Services Commissioner, citing alleged misconduct during a police-involved incident resulting in a death, and referenced ongoing investigations and legal action related to the case.

George Joshua Sabbagh praised the City's responsiveness and available employment, housing, and community assistance resources, and expressed support for existing programs serving residents in need.

CONSENT CALENDAR:

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

A. Approval of Minutes 26-1022
Approve the minutes of May 12, 2026, Regular City Council Meeting.

B. Accept the Community Cleanup and Employment Pathway 26-0882 Grant Program from the California Department of
Transportation.

1. Accept the grant award in the total amount of $300,000.00 for the City of Fontana Beautification with Empowerment Project.

2. Authorize the City Manager, or City Manager’s designee, to enter into and transmit any documents necessary to ensure the City’s timely receipt of the Clean CA Grant Program.

C. Award Bid for Ralph M. Lewis Sports Park Artificial Turf 26-0892 Installation for Fields 5 & 6 (PW-26-180-SB).

1. Award bid and authorize the City Manager to enter into a construction 18

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contract with FieldTurf USA, Inc. for Ralph M. Lewis Sports Park Artificial Turf Installation for Fields 5 & 6 in the amount of $423,603.32 and authorize a 10% contingency in the amount of $42,360.00 (PW-26-180 -SB).

2. Authorize the City Manager to enter into any related items on behalf of the City of Fontana for Ralph M. Lewis Sports Park Artificial Turf Installation for Fields 5 & 6 (PW-26-180-SB).

D. Award a bid Construction Contract for the Comprehensive 26-0984 Pavement Rehabilitation for High-Maintenance Segments
Project (DE-26-100-SB)

1. Award bid and authorize the City Manager to enter into a construction contract with Matich Corporation for the construction of the Comprehensive Pavement Rehabilitation for High-Maintenance Segments Project in the amount of $2,025,911.00 and authorize a 10% contingency in the amount of $202,591.10 (DE-26-100-SB).

2. Approve and authorize the City Manager to enter into any and all utility agreements, utility easements, and subsequent agreements on behalf of the City of Fontana for the Comprehensive Pavement Rehabilitation for High-Maintenance Segments Project.

E. Roadway Asset Services, LLC Pavement & Asset 26-0985 Management Data Collection Services

1. Authorize the Purchasing Division to utilize the HGACBuy Cooperative Purchasing Program for Pavement and Asset Management Services under Contract No.HP08-25, per Purchasing Policies and Procedures Manual 3.1.5 Non-Competitive Proposal - by Another Public Agency.

2. Authorize the City Manager to enter into a Professional Services Agreement with Roadway Asset Services, LLC, in the amount of $242,335.00 Pavement & Asset Management Services and any future amendments.

F. Award a Professional Services Agreement with Cordoba 26-0986 Corporation for Construction Management Services for the Regional Navigation Center Tenant Improvements Project
(SQ-43-DE-23-2)

1. Award and authorize the City Manager to enter into a Professional Services Agreement with Cordoba Corporation for Construction Management Services for the Regional Navigation Center Tenant Improvements Project in the amount of $535,771.00 (Request for Proposals SQ-43-DE-23-2).

2. Approve and authorize the City Manager to enter into any future amendments to the Professional Services Agreement.

Page 5 of 10 ends

G. Annual Ford Vehicle Purchase Order Contract, Service, and 26-0994 OEM Parts Contract (PW-26-157-SP)
Award bid (PW-26-157-SP) and authorize the vehicle purchases, service, and OEM parts for two (2) years with three (3) optional annual renewals to the following bidders:

1. Fairview Ford Sales, Inc.

2. UP Opco Fontana F Inc. (dba Sunrise Ford).

H. American Rescue Plan Act Expenditure Plan Quarterly Report 26-0995 Receive and file the American Rescue Plan Act (ARPA) Expenditure Plan quarterly report.

I. Police Department Monthly Information Update 26-1002 Accept the Police Department monthly information update for March 2026.

PUBLIC HEARINGS:

A. Master Case No. 26-0011 and Municipal Code Amendment No. 26-0851 26-0002: Fontana Municipal Code amendments to Chapter 30 to modify standards for outdoor dining and parking standards in the downtown core, make revisions to the No Net Loss
program, add definitions to differentiate vehicle parking from storage, clarify timing of entitlement applications, and modify the definition of accessory land uses, pursuant to a categorical exemption from the California Environmental Quality Act (“CEQA”) in accordance with CEQA Guidelines Sections
15060(c), 15378, and 15061(B)(3).

1. Find that the adoption of the proposed ordinances are categorically exempt from the California Environmental Quality Act (“CEQA”) pursuant to CEQA Guidelines Sections 15060(c), 15378, and 15061(B)(3) (the common-sense exemption), and Sections No. 3.01, 3.22, and10.59 of the 2019 Local Guidelines for Implementing CEQA.

2. Waive full reading and introduce for first reading by title only Ordinance No. 1988 entitled: “An Ordinance Of The City Council Of The City Of Fontana, California, Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Article XV Pertaining To Provisions Of The No Net Loss Program Including Sections 30-966 Through 30-969 And Sections 30-971 And 30-972, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378.And Directing Staff To File A Notice Of Exemption. ”

3. Waive full reading and introduce for first reading by title only Ordinance No. 1989 entitled: “An Ordinance Of The City Council Of The City Of 20

Page 6 of 10 ends

Fontana, California, Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Sec. 30-12 Pertaining To The Definition Of Accessory Use, Principal/Primary Use, Vehicle And Truck Storage And Vehicle And Truck Parking; Sec. 30-21 Pertaining To The Expiration Of Entitlement Applications; Sec. 30-360 Pertaining To Outdoor Dining In The Public Right-Of-Way In The Downtown Core; Sec. 30-371.2 Pertaining To Parking Requirements For Retail, Entertainment And Restaurant Uses In The Downtown Core; Sec. 30-390 To Correct Section References, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378.And Directing Staff To File A Notice Of Exemption. ”

Mayor Warren opened the public hearing.

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

Associate Planner Cecily Session-Goins provided the staff report.

Council Member Sandoval inquired whether parking fees would be charged at the new parking structure and expressed concern about impacts on downtown businesses. City Manager Matt Ballantyne responded that there is currently no intent to charge for parking, although some spaces may be reserved for future downtown development projects.

Mayor Pro Tem Garcia asked how the 400- foot parking radius was determined and whether it would encompass most downtown businesses. Associate Planner Session- Goins explained that the radius is consistent with the existing Zoning and Development Code and was established to maximize access to City parking facilities while serving the majority of businesses within the downtown core area.

Mayor Warren expressed concern that the 400- foot parking radius may be too limiting given continued growth in the downtown area. Deputy City Manager Phil Burum responded that the radius would effectively eliminate parking requirements for much of the downtown core because those areas are served by existing and planned City parking facilities.

With no requests to speak in favor or opposition, Mayor Warren closed the public hearing.

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

B. Master Case No. 19-000016R1: Development Agreement No. 26-0927 19-000002R1 - A request to approve the first amendment to the Goodman Logistics Center Fontana III Development Agreement to extend the term of the agreement and add sustainability features, finding that the project was adequately analyzed in the previously certified Goodman Logistics Center Fontana III Environmental Impact Report (EIR) (State Clearinghouse [SCH] 21

Page 7 of 10 ends

NO. 2019039071) and the subsequent addendum, determining pursuant to CEQA guidelines Section 15162, no subsequent or supplemental EIR is required and direct staff to file of Notie of Determination.

1. Determine that the development agreement amendment together with the underlying project were adequately analyzed in the previously certified Goodman Logistics Center Fontana III Environmental Impact Report (EIR) (State Clearinghouse [SCH] No. 2019039071), along with a subsequent March 2021 Addendum, and pursuant to CEQA Guidelines Sections 15162 and 15164, no subsequent or supplemental EIR is required because there are no substantial changes in the project or its circumstances, and no new information of substantial importance has been identified that would result in any new or more severe significant environmental impacts; and

2. Waive full reading and introduce for first reading by title only Ordinance No. 1990 entitled: “An Ordinance of the City Council of the City of Fontana, California, Approving Development Agreement No 19-000002R1 for Assessor’s Parcel Numbers: 0255-091-20, -23, -63, -64, and -65.

Mayor Warren opened the public hearing.

City Clerk Key stated that two written public communications were received.

Associate Planner Cecily Session-Goins provided the staff report.

With no requests to speak in favor or opposition, Mayor Warren closed the public hearing.

ACTION: Motion was made by Council Member Roberts , seconded by Mayor Pro Tem Garcia, and passed by vote of 4-1 to approve Public Hearing Item “ B.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES:

Sandoval; ABSTAIN: None; ABSENT: None

C. Master Case No. 23-0100R1: Development Agreement (AGR) 26-0993 No. 23-0085R1 and Master Case No. 23-100R2: Development Agreement (AGR) No. 23-0085R2 - a request to amend and
restate the previously approved Development Agreement (DA) for the Citrus/Oleander Industrial Commerce Center Project to allocate the provision of public benefit fees among properties in a manner consistent with Planning Commission Resolution No. 2025-040.

Open the public hearings, receive public testimony, close the public hearings and by motion:

1. Determine that the recommended development agreement modifications are categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15060(c), 15061(B)(3) (the common-sense exemption), and 15378 and Sections No. 3.01, 3.22, 22

Page 8 of 10 ends

and 10.59 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and,

2. Determine that the development agreement modifications together with the underlying project were adequately analyzed in the previously certified Citrus and Oleander Avenue at Santa Ana Avenue Project Environmental Impact Report (EIR) (State Clearinghouse No. 2022110389) and its subsequent Addendum, and pursuant to CEQA Guidelines Section

15162, no subsequent or supplemental EIR is required because there are no substantial changes in the project or its circumstances, and no new information of substantial importance has been identified that would result in any new or more severe significant environmental impacts; and

3. Waive full reading and introduce for first reading by title only Ordinance No. 1991 entitled: “An Ordinance of the City Council of the City Of Fontana, California, Approving Development Agreement No 23-0085R1, as to Assessor’s Parcel Number 0255-021-17”

4. Waive full reading and introduce for first reading by title only Ordinance No. 1992 entitled: “An Ordinance of the City Council of the City of Fontana, California, Approving Development Agreement No 23- 0085R2, as to Assessor’s Parcel Numbers 0255-011-13, 0255-011-14, 0255-011-18, 0255-011-19 AND 0255-011-25 thru 0255-011-32”

Mayor Warren opened the public hearing.

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

Planning Manager DiTanyon Johnson provided the staff report.

Council Member Cothran asked whether the development agreement pertained only to the agreement between the City and the property owner rather than project approvals. Planning Manager Johnson confirmed that the project and zoning had already been approved and that the item concerned only the development agreement with the current property owner.

With no requests to speak in favor or opposition, Mayor Warren closed the public hearing.

ACTION: Motion was made by Council Member Roberts , seconded by Council Member Cothran, and passed by vote of 4 -1 to approve Public Hearing Item “ C.” The motion carried by the following vote: AYES: Warren, Garcia, Cothran, and Roberts; NOES:

Sandoval; ABSTAIN: None; ABSENT: None

Page 9 of 10 ends

NEW BUSINESS:

A. New Business
A. Fiscal Year 2025-26 Third Quarter Budget Status Report 26-0967 Approve the recommended Fiscal Year 2025-26 Third Quarter Budget adjustments.

Chief Financial Officer Jessica Brown provided the staff report.

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

CITY MANAGER COMMUNICATIONS:

City Manager Ballantyne highlighted several Consent Calendar items, including a $300,000 Caltrans grant for right -of-way cleanup, the award of construction work for improvements to Fields 5 and 6 at Lewis Library and Technology Center Park, $2 million in street rehabilitation projects, and the donation of a retired fire engine through Rotary International. He also announced the upcoming Fontana Days Run, noting that the event is sold out and that Travis Barker is scheduled to participate.

ELECTED OFFICIALS COMMUNICATIONS/REPORTS:

City Clerk Key congratulated her grandsons, Jackson Griffen and Jayden White, on their graduation from Summit High School this evening.

City Treasurer Koehler-Brooks thanked Chief Financial Officer Brown and Finance staff for the 3rd Quarter Budget Status Report.

Council Member Cothran reported attending the recent International Convention of Shopping Centers ( ICSC) convention and found it valuable for engaging with developers, hospitality stakeholders, and others to discuss market trends and potential opportunities for Fontana. He congratulated local graduates, including Summit High School students, and acknowledged Rotary’s partnership in the donation of a retired fire engine, noting it will continue to serve other communities. Council Member Cothran also highlighted ongoing investment in new sports fields and the City’s continued focus on development and recreation projects.

Mayor Pro Tem Garcia reported attending I CSC, describing it as an industry event focused on attracting businesses in retail, dining, office, and gathering spaces, and noted it was successful in promoting Fontana and engaging potential partners. He highlighted early visible progress downtown, including demolition and construction activity signaling the start of the area’s transformation. He also recognized the Memorial Day service at the VFW, praising recent improvements to the facility, new leadership efforts, and support for veterans and community services.

Page 10 of 10 ends

Council Member Roberts reported attending I CSC, noting strong interest at the City’s booth and opportunities to attract new businesses to relocate to Fontana. H e also attended a City-County conference, describing it as a productive forum for collaboration and exchange of ideas with regional partners.

Council Member Sandoval expressed appreciation for public safety staff, commending an officer for handling a park incident involving e- bikes in a professional manner. He recognized Cypress after -school program students for their talent showcase and congratulated his grandson Sebastian and daughter Cecelia on their academic and leadership achievements. He also congratulated graduating students across the city and highlighted opportunities available to local youth, including career pathways such as aviation training.

Mayor Warren reported on a successful I CSC conference, praising staff for their efforts in promoting Fontana and highlighting strong interest from businesses in the city’s downtown, including key marketing assets such as the F orge District, Stage Red, and traffic and population data. She emphasized positive momentum for downtown investment and business attraction.

She also recognized improvements at the VFW following a Memorial Day event and a significant revitalization effort supported by county funding. Mayor Warren congratulated graduates across the community, highlighted expanding career pathways for students, and noted strong partnerships with local schools and colleges.

Additional comments included support for upcoming community events such as Fontana Days and the Fontana Run, appreciation for C ity staff and public engagement, and a reminder for residents to stay connected and involved in city activities and services.

ADJOURNMENT:

Mayor Warren adjourned the meeting at 3: 21 p.m. to the Regular City Council Meeting on Tuesday, June 9, 2026, at 2:00 p.m. in the Steelworkers’ Auditorium located at 8 437 Sierra Avenue, Fontana, California.

_______________________
Christina Rudsell, CMC
Chief Deputy City Clerk

THE FOREGOING MINUTES WERE ADOPTED AND APPROVED BY THE FONTANA CITY COUNCIL ON JUNE 9, 2026.

_______________________
Germaine Key
City Clerk
25 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1047 Agenda Date: 6/9/2026
Agenda #: B. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1988 (Second Reading), Amending Article XV Pertaining To Provisions Of The No Net Loss Program Including Sections 30-966 Through 30-969 And Sections 30-971 And 30- 972, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.

RECOMMENDATION:

Conduct a second reading by title only and adopt, Ordinance No. 1988, Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Article XV Pertaining To Provisions Of The No Net Loss Program Including Sections 30-966 Through 30-969 And Sections 30-971 And 30- 972, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption. ..End
COUCIL GOALS:
· Promote economic development by establishing a quick, consistent development process. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.
· Concentrate on Inter-governmental relations by advocating Fontana's position in regional, state, and federal organizations.

DISCUSSION:

Ordinance No. 1988 was introduced by a vote of 5-0 at the May 26, 2026, Regular City Council Meeting.

FISCAL IMPACT:

There is no direct fiscal impact from this item.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 6/2/2026Page 1 of 1
powered by Legistar™
26 1 of 4

ATTACHMENT NO. 1
ORDINANCE NO. 1988

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

CALIFORNIA, AMENDING ARTICLE XV PERTAINING TO PROVISIONS OF THE NO NET LOSS PROGRAM INCLUDING SECTIONS 30 -966
THROUGH 30-969 AND SECTIONS 30-971 AND 30-972, PURSUANT TO

A CATEGORICAL EXEMPTION IN ACCORDANCE WITH CEQA
GUIDELINES SECTIONS 15060(C), 15061(B)(3), AND SECTION 15378 AND DIRECTING STAFF TO FILE A NOTICE OF EXEMPTION.

WHEREAS, pursuant to Government Code section 37100, the legislative body of a city may pass ordinances not in conflict with the Constitution and laws of the State or the United States; and

WHEREAS, Government Code sections 50022.1 to 50022.10 authorize a city to codify and recodify its ordinances; and

WHEREAS, through Municipal Code Amendment (“MC A”) No. 26-0002, the City of Fontana (“City”) desires to restate without substantive revision, amend and recodify certain ordinances codified in the Fontana Municipal Code (“FMC”); and

WHEREAS, the City of Fontana General Plan (“General Plan”) includes policies and actions calling for numerous updates to the FMC; and

WHEREAS, Article XV. No Net Loss Program Sections 30-966 through 30 -969 and Sections 30-971 and 30-972 are amended to modify program provisions related to allowable zoning district, minimum lot size, development standard application, unit bank capacity, and the memorialization of the use of the unit bank; and

WHEREAS, the amendments in MCA No. 26-0002 are consistent and compatible with the General Plan and are in line with goals, policies and objectives of the City, the Housing Element policies and the Zoning and Development Code; and

WHEREAS, the amendments in MCA No. 26-0002 are in conformity with appropriate land use practices and will establish appropriate development standards for the land use designations; and

WHEREAS, the amendments in MCA No. 26-0002 attached hereto as Exhibit “A” and incorporated herein by reference, will not be detrimental to the public health, safety and general welfare, nor will it adversely affect the orderly development of property; and

WHEREAS, on April 21, 2026 , the Fontana Planning Commission (“Planning Commission”) held a public meeting on MCA No. 26-0002 where it received evidence and 27 Ordinance No. 1988
2 of 4
public testimony on the Code amendments and recommended that the Fontana City Council (“City Council”) determine that the amendments are exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15378, and 15061(B)(3) (the common-sense exemption), and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA. in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be with certainty that there is no possibility that the activity in question m ay have a significant effect on the environment, the activity is not subject to CEQA; and
WHEREAS, the Planning Commission carefully considered all information pertaining to the municipal code amendments, including the staff report, and all the information, evidence, and testimony presented at its public hearing on April 21, 2026; and
WHEREAS, on May 26, 2026, the City Council held a public hearing on MCA No. 26-0002 where City Council received evidence and public testimony pertaining to the Zoning and Development Code amendments and documentation from the Planning Commission’s public hearing on April 21, 2026; and

WHEREAS, the City Council carefully considered all information pertaining to MCA No. 26-0002 that was presented at its public hearing on May 26, 2026; and

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

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

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

Section 2. CEQA. The City Council hereby determines that the code amendments are exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 1 5378, and 15061(B)(3) (the common -sense exemption) and Sections 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA.

Staff is directed to file a Notice of Determination pursuant to the foregoing.

Section 3. Municipal Code Amendment Findings. The City Council hereby makes the following finding for MCA No. 26-0002 in accordance with Section 30-40 “Purpose” of the Fontana Zoning and Development Code:

Finding: A Zoning and Development Code may be amended by changing the development st andards (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 28 Ordinance No. 1988
3 of 4
appropriate in the context of generally ac cepted planning principles, surrounding land uses, and the General Plan.

Finding of Fact: The proposed Municipal Code Amendment will provide modifications to the No Net Loss Program, making it more feasible to utilize units deposited into the unit bank. The modifications will also ensure clarity and provide more assurances in the development process as it pertains to the utilization of the No Net Loss Program units. This will streamline the City’s development requirements and processes while facilitating an increase in housing development. As such, it promotes the General Plan goals of adequate housing to meet the needs of all residents in Fontana.

Section 4. Development Code Amendment Approval. Based on the foregoing, the City Council hereby approves the amendments as set forth in MCA No. 26-0002, which is attached hereto as Exhibit “A” and incorporated herein by reference as fully set forth herein.

The City Council further stipulates that the ordinance adopting the amendments to the Zoning and Development Code, under MCA No. 26 -0002, does not apply to development applications deemed complete by the City of Fontana Planning Department prior to the ordinance’s effective date. The City C ouncil also stipulates that any such completed pre -adoption applications not conforming to these amendments after the ordinance’s effective date, once approved by the appropriate approving body, be granted legal non -conforming status, with all applications deemed complete on or after the ordinance’s adoption being subject to its provisions.

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 16860 Valencia Avenue, Fontana, CA 92335. The custodian or records is the City Clerk.

Section 7. Certification. The City Clerk of the City Council shall certify 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.
29 Ordinance No. 1988
4 of 4

APPROVED AND ADOPTED this 9th day of June 2026.

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 26th day of May 2026, and was finally passed and adopted not less than five days thereafter on the 9th day of June 2026, 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
30 “EXHIBIT A”

AMENDMENT TO FONTANA MUNICIPAL CODE CHAPTER 30
(*Additions shown in underline, deletions shown in strikeout)

ARTICLE XV. NO NET LOSS PROGRAM

Sec. 30-965. Purpose and authority.

The City desires to ensure its compliance with Senate Bill 330 (SB330) and establish a no Net Loss Density Bonus Program for certain residential projects. This chapter provides, concurrent with the approval of any change in zone from a residential use to a less intensive or non -residential use, a density bonus will become available to project applicants subsequently seeking to develop property for residential use within the City. In doing so, the proposed Section will ensure that there is no net loss of residential capacity within the City as required by SB330.

On October 9, 2019, the California Legislature adopted SB330 which, among other things, adopted Government Code § 66300, declared a housing crisis in the State of California and imposed certain requi rements designed to streamline the construction of new housing, and prevent the loss of existing housing and land available for future residential use, unless the City concurrently changes the development standards, policies, and conditions applicable to other areas of the affected jurisdiction to ensure no net loss in residential capacity. SB330 became effective on January 1, 2020.

Sec. 30-966. Definitions.

Except as otherwise expressly set forth herein, the following words and terms as used in this chapter shall have the following meanings:

Density Bonus. A density increase of up to those percentages above the otherwise maximum residential density as specified in this chapter.

Density Bonus/Transfer Agreement. A legally binding agreement between a developer of a Housing Development and the City containing such terms and conditions as determined by the City Attorney, which ensures that the requirements of this chapter are satisfied.

Density Bonus Units. Those residential units granted pursuant to the provisions of this chapter, that exceed the maximum residential density for the development site and that are available in the Unit Bank.

Director of Planning. The Director of Planning of the City of Fontana.

Housing Development. Construction projects consisting of five or more residential units or Lots, including single-family and multifamily, that are proposed to be constructed pursuant to this chapter.

Lot. (1) a Lot when shown as a delineated Lot of land with a number or other designation on a parcel map or tract map and not to be used for the common benefit of other Lots recorded in the Office of the County Recorder of San Bernardino County and 31 legally created under the Subdivision Map Act ; (2) a Lot of land held under separate ownership from adjacent property that constitutes a legal lot under applicable Law.

Maximum Residential Density. The maximum number of residential units permitted by the City's General Plan Land Use Element and Zoning and Development Code, applicable to the subject property at the time an application for the construction of a Housing Development is deemed complete by the City, excluding the additional units permitted by this chapter.

Unit Bank. The number of units available to the No Net Loss Program as a result of a change of zone from a residential use to a less intensive residential use or a non- residential use. The Director of Planning, or his or her designee, shall have the sole authority to administer and maintain the Unit Bank balances, credits and availability as he or she determines, which determination shall be final.

Sec. 30-967. Requirements.

The City shall grant a density bonus through the No Net Loss Program to projects which meet the following criteria:
(1) The project is on a parcel of at least one acre, or the applicant is processing an application concurrently with a parcel merger of two or more Lots or more which will create a Lot of not less than one-acre.
(2)(1) The project takes place in one of the following residential zones in the City:
a. Residential Estate (R-E).
b. Single-Family Residential (R-1).
c. Medium-Density Residential (R-2).
d. High-Density Residential (R-3).
e. Multi-Family Medium-High Residential (R-4).
f. Multi-Family/High Residential (R-5).
g. Residential Planned Community (R-PC).
h. Form-Based Code (FBC).
(3)(2) In determining the number of Density Bonus Units to be granted transferred) pursuant to this section, the maximum allowable residential density for the site shall be calculated as follows:
a. Multiplying the maximum density allowed under the applicable zoning designation and multiplying the result by 1.2 for a 20 percent density bonus. If the result, including the density bonus, contains a fraction of a unit, the number of allowable units shall be determined by rounding down to the nearest whole number if the fraction is below 0.5. Calculations containing fractions of 0.5 or above shall be rounded up. 32 b. Density bonuses in the No Net Loss Program can be combined with other density bonus programs as established in Article II, Division 25 - Density Bonus of the Fontana Municipal Code.

1. In no case shall the number of No Net Loss/Density Bonus Units awarded under the No Net Loss Program exceed the number of units in the Unit Bank.

2. In no case shall the number of No Net Loss/Density Bonus Units available in the Unit Bank exceed 2,200 1,600 units.
(4)(3) A Density Bonus/Transfer Agreement shall be required for any project seeking a density bonus as part of the No Net Loss Density Bonus Program. (5)(4) The Planning Department shall publish the available num ber of units available in the Unit Bank on the Planning Department's page on the City's website. The number of units available is expected to change periodically and, as such, any information contained on the City's website, or any other published source shall be considered draft for informational purposes only. Confirmation of the number of units available shall be made upon submittal of a development application, including the payment of appropriate fees.

Sec. 30-968. Types of bonuses allowed.
(a) Density Bonus. The density bonus allowed by this chapter shall consist of those density increases specified in Section 30-967 above the maximum residential density applicable to the site as of the date of the project land use permit application. (b) Mixed use zoning allows the Housing Development to include nonresidential uses.

Approval of mixed -use activities in conjunction with the No Net Loss program is permissible if authorized elsewhere under the Fontana Municipal Code and subject to those requirements. A density bonus will be granted only for the residential portion of a mixed use development.

Sec. 30-969. Development standards.

All development standards for the base zone and/or overlay district shall be met. Granting of a density bonus does not constitute approval of or grounds for modification or waiver of any development standard or other requirement of the Fontana Municipal Code.

A proportional adjustment (up to 20%) shall be allowed for the following development standards: building setbacks, minimum lot area and dimensions, and lot coverage.

Sec. 30-970. Processing of no net loss program requests.

An Application which proposes to change a land use designation or zoning ordinance to a less intensive use may request concurrent approval by the City Council to transfer the unit reduction to a No Net Loss Density Bonus Bank for the purpose of complying with SB330.

An Application which proposes to utilize units available in the No Net Loss Density Bonus Bank shall submit a density bonus transfer application in conjunction with the permit and entitlement application submittal package required for the proje ct. A density 33 bonus transfer application pursuant to this chapter shall be processed along with the application for development. The process for obtaining preliminary approval of the Density Bonus Transfer Agreement, shall be as follows:
(1) Filing. An applicant proposing a Housing Development pursuant to this chapter shall submit a concurrent application for a Density Bonus Transfer Agreement as part of the submittal of any formal request for approval of a Housing Development. The application, whether a pre-application or a formal application, shall include:
(2) A general description of the proposed project, general plan description, applicable zoning, maximum possible density permitted under the current zoning and general plan description and such other information as is necessary. (3) A calculation of the density bonus allowed pursuant to this division. (4) A statement detailing the number of density bonus units being proposed over and above the number of units normally permitted by the applicable zoning and general plan description.
(5) City review of and action on the applicant's proposal for a density bonus shall occur concurrently with the processing of any other required entitlements, if any.

The fact that another required entitlement might be sub ject to discretionary approval does not subject the application for a density bonus/transfer under this section to discretionary approval; they will merely be processed at the same time.

Sec. 30-971. No net loss program density bonus agreement memorandum. (a) The terms of the draft density bonus/transfer agreement (Agreement) shall be reviewed and revised documented as appropriate in a project memorandum requested by the applicant and issued by the Director of Planning and the City Attorney for final appro val. (b)At a minimum, t The Agreement memorandum shall include the following:(1) Tthe total number of units, both permitted and available through the density bonus/transfer, proposed within the Housing Development.; (2) A schedule for completion and occupancy of the units; and (3) A description of remedies for breach of the Agreement by either party. (b) A project that qualifies for a unit bank density bonus and complies with all other objective development standards inclusive of those standards modified by the No Net Loss program shall have its unit bank request processed ministerially by the City within 30 days of the City’s receipt of written correspondence indicating that the project seeks a unit bank density bonus.

Sec. 30-972. Implementation.
(a) The provisions of this chapter shall be administered by the Planning Department. (b) Projects requesting density bonus/transfer through this No Net Loss Program are subject to processing through the requirements in this chapter. 34 (c) A project that qualifies and uses a unit bank density bonus and complies with all other objective development standards shall be considered consistent with local objective development standards for the purpose of any applicable state law.

35 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1048 Agenda Date: 6/9/2026
Agenda #: C. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1989 (Second Reading), Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Sec. 30-12 Pertaining To The Definition Of Accessory Use, Principal/Primary Use, Vehicle And Truck Storage And Vehicle And Truck Parking; Sec. 30-21 Pertaining To The Expiration Of Entitlement Applications; Sec. 30-360 Pertaining To Outdoor Dining In The Public Right-Of-Way In The Downtown Core; Sec. 30-371.2 Pertaining To Parking Requirements For Retail, Entertainment And Restaurant Uses In The Downtown Core; Sec. 30-390 To Correct Section References, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.

RECOMMENDATION:

Conduct a second reading by title only and adopt, Ordinance No. 1989, Amending Multiple Sections Of The Fontana Municipal Code, Including Amendments To Sec. 30-12 Pertaining To The Definition Of Accessory Use, Principal/Primary Use, Vehicle And Truck Storage And Vehicle And Truck Parking; Sec. 30-21 Pertaining To The Expiration Of Entitlement Applications; Sec. 30-360 Pertaining To Outdoor Dining In The Public Right-Of-Way In The Downtown Core; Sec. 30-371.2 Pertaining To Parking Requirements For Retail, Entertainment And Restaurant Uses In The Downtown Core; And Sec. 30-390 To Correct Section References, Pursuant To A Categorical Exemption In Accordance With CEQA Guidelines Sections 15060(C), 15061(B)(3), And Section 15378, And Directing Staff To File A Notice Of Exemption.
..End
COUCIL GOALS:
· Promote economic development by establishing a quick, consistent development process. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.
· Concentrate on Inter-governmental relations by advocating Fontana's position in regional, state, and federal organizations.

DISCUSSION:

Ordinance No. 1989 was introduced by a vote of 5-0 at the May 26, 2026, Regular City Council Meeting.

FISCAL IMPACT:

There is no direct fiscal impact from this item.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 6/2/2026Page 1 of 1
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ATTACHMENT NO. 1
ORDINANCE NO. 1989

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

CALIFORNIA, AMENDING MULTIPLE SECTIONS OF THE FONTANA
MUNICIPAL CODE, INCLUDING AMENDMENTS TO SEC. 30 -12

PERTAINING TO THE DEFINITION OF ACCESSORY USE,

PRINCIPAL/PRIMARY USE, VEHICLE AND TRUCK STORAGE AND
VEHICLE AND TRUCK PARKING; SEC. 30 -21 PERTAINING TO THE EXPIRATION OF EN TITLEMENT APPLICATIONS; SEC. 30-360

PERTAINING TO OUTDOOR DINING IN THE PUBLIC RIGHT -OF-WAY IN THE DOWNTOWN CORE; SEC. 30-371.2 PERTAINING TO PARKING

REQUIREMENTS FOR RETAIL, ENTERTAINMENT AND RESTAURANT
USES IN THE DOWNTOWN CORE; SEC. 30 -390 TO CORRECT

SECTION REFERENCES, PURSUANT TO A CATEGORICAL

EXEMPTION IN ACCORDANCE WITH CEQA GUIDELINES SECTIONS
15060(C), 15061(B)(3), AND SECTION 15378 .AND DIRECTING STAFF TO FILE A NOTICE OF EXEMPTION.

WHEREAS, pursuant to Government Code section 37100, the legislative body of a city may pass ordinances not in conflict with the Constitution and laws of the State or the United States; and

WHEREAS, Government Code sections 50022.1 to 50022.10 authorize a city to codify and recodify its ordinances; and

WHEREAS, the City of Fontana General Plan (“General Plan”) includes policies and actions calling for numerous updates to the FMC; and

WHEREAS, Section 30-12. – List of definitions. is amended to modify the definition of primary/principal land use and accessory land use and to add definitions for vehicle and truck storage and vehicle and truck parking; and

WHEREAS, Section 30-21. – Expiration of application . is amended to correct a reference to the Planning Department and Director of Planning and remove the statement that inactivity is required to withdraw entitlement applications that have not been deemed complete within 180 days of submittal; and

WHEREAS, Section 30-360. – Special use regulations. is amended to modify the standards and permit requirements for outdoor dining in the downtown core; and

37 Ordinance No. 1989

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WHEREAS, Section 30-371.2. Sierra core. is amended to eliminate the parking requirement for retail, entertainment and restaurant uses in the downtown core located within 400 feet of a City-owned parking lot or structure; and

WHEREAS, Section 30-390. Off-street parking and loading standards. is amended correct a section reference; and

WHEREAS, the amendments in MCA No. 26-0002 are in conformity with appropriate land use practices and will establish appropriate development standards for the land use designations; and

WHEREAS, on April 21, 2026 , the Fontana Planning Commission (“Planning Commission”) held a public meeting on MCA No. 26-0002 where it received evidence and public testimony on the Code amendments and recommended that the Fontana City Council (“City Council”) determine that the amendments are exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15378, and 15061(B)(3) (the common-sense exemption), and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA. in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA; and
WHEREAS, the Planning Commission carefully considered all information pertaining to the municipal code amendments, including the staff report, and all the information, evidence, and testimony presented at its public hearing on April 21, 2026; and
WHEREAS, on May 26, 2026, the City Council held a public hearing on MCA No. 26-0002 where City Council received evidence and public testimony pertaining to the Zoning and Development Code amendments and documentation from the Planning Commission’s public hearing on April 21, 2026; and

WHEREAS, the City Council carefully considered all information pertaining to MCA No. 26-0002 that was presented at its public hearing on May 26, 2026; and

WHEREAS, all other legal prerequisites to the adoption of this Ordinance have occurred.
38 Ordinance No. 1989

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

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

Section 2. CEQA. The City Council hereby determines that the code amendments are exempt pursuant to the California Environmental Quality Act (CEQA) Guidelines Sections 15060(c), 15378, and 15061(B)(3) (the common -sense exemption) and Sections 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA.

Staff is directed to file a Notice of Determination pursuant to the foregoing.

Finding: A Zoning and Development Code may be amended by changing the development standards (text) or zoning designation map boundaries of any zone whenever such an a mendment 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.

Finding of Fact: The proposed Municipal Code Amendments will clarify and streamline the City’s development requirements and processes while facilitating housing, commercial development and supporting the business community. As such, they promote the General Plan goals of adequate housing to meet the needs of all residents in Fontana and promoting a diversified economy.

The City Council further stipulates that the ordinance adopting the amendments to the Zoning and Development Code, under MCA No. 26 -0002, does not apply to development applications deemed complete by the City of Fontana Planning Department prior to the ordinance’s effective date. The City Council also stipulates that any such completed pre -adoption applications not conforming to these amendments after the ordinance’s effective date, once approved by the appropriate approving body, be granted legal non -conforming status, with all applications deemed complete on or after the ordinance’s adoption being subject to its provisions.

39 Ordinance No. 1989

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

APPROVED AND ADOPTED this 9th day of June 2026.

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
40 Ordinance No. 1989

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ATTEST:

_____________________________________
City Clerk
41 “EXHIBIT A”

AMENDMENT TO FONTANA MUNICIPAL CODE CHAPTER 30
(*Additions shown in underline, deletions shown in strikeout)

Article I. – GENERAL PROVISIONS AND DEFINITIONS

Sec. 30-12. – List of definitions.

Accessory dwelling unit means a residential dwelling unit that provides independent living facilities: including permanent provisions for living, sleeping, eating, cooking, and sanitation, for one or more persons.
(1) An accessory dwelling unit may be located within a legally established primary dwelling or legally established accessory structure. The existing space of a legally established primary dwelling means the space within the building envelope of the dwelling, which includes basements, attics, and garages, accessory structures.
(2) An accessory dwelling unit could also include an efficiency unit, as defined in California Health and Safety Code § 17958.1, and a manufactured home, as defined in California Health and Safety Code § 18007.

Accessory use means a use of land, building, or portion thereof which is subordinate to the principal use of the land or building and located on the same lot with such principal use. Accessory uses occupy a maximum of 35% of the overall floor area or site area (for outdoor land uses), whichever is less.

Acreage, gross means all land within a defined area, including private ownerships and future public rights-of-way, easements, etc.
…
Pre-zoning means the act of designating, in advance of annexation, the district to be applicable to a site upon subsequent annexation of that site to the City of Fontana.

Primary/principal use means a use which acts as the main function of a site as it relates to intensity, square footage, activity and/or traffic generation. Primary/principal uses occupy a minimum of 65% of the overall floor area or site area (for outdoor land uses).

Private club means a building and related facilities owned or operated by a corporation, association, or group of individuals established for the fraternal, s ocial, educational, recreational or cultural enrichment of its members and not primarily for profit, and whose members meet certain prescribed qualifications for membership and pay dues.
…
Parking structure means a structure used for the parking of vehicles where parking is accommodated on two or more levels.

42 Parking, vehicle and truck means leaving a vehicle temporarily at/on an off-street facility designed and designated primarily for the parking of empty commercial vehicles, trailers, trucks and buses. Vehicle and truck parking does not include leaving vehicle overnight.

Parks, public means an open space intended for public recreational use which is operated by the City.

…
Statuary, retail sales. See "nursery."

Storage, vehicle and truck means leaving a vehicle at/on an off -street facility designed and designated primarily for leaving vehicles overnight.

Structure means anything constructed or built. An edifice or building of any kind, or any piece of work artificially built up or composed of p arts joined together in some definite manner.
…

Remainder of section to remain unchanged

Sec. 30-21. - Expiration of application.

If the applicant does not provide the information and materials necessary for a pending application to be deemed complete within 180 days after written notification of incompleteness and there has been no activity on the project, the application shall expire and be deemed withdrawn. The Director of Community Development Planning may grant one 180-day extension provided the request is made in writing prior to the expiration date.

Planning Division Department may refund any unexpended portion of the application fee.

After expiration of the application or extension, if granted, a new application, including fees, plans, exhibits, and other materials will be required to commence processing of any project on the same property. The Director shall provide written no tice to the applicant and shall also notify the applicant of the opportunity for appeal.

43 Sec. 30-360. Special use regulations.
…
(c) Outdoor dining in the public right -of-way. The purpose of the regulations and standards in this section are to allow increased business and pedestrian traffic, encourage appropriate outdoor dining opportunities within public rights -of-way and to ensure that the space used for outdoor dining within the public right -of-way will service a public purpose. This section does not apply to outdoor dining on private property.

(1) Location permitted. Outdoor dining areas within the public right -of-way are permitted on all commercially utilized properties, provided all development standards are met.

(2) Permits required. It shall be unlawful for any business to use the public sidewalk and/or public right -of-way for outdoor dining without first obtaining a valid minor use permit and encroachment permit.

a. Minor outdoor dining. Outdoor dining projecting no more than four feet from the building façade where the restaurant entry is located and meeting all design and operational standards shall obtain an encroachment permit from the City Engineer.

b. Major outdoor dining. Outdoor dining projecting more than four feet from the building façade where the restaurant entry is located and meeting all design and operational standards shall obtain a minor use permit from the Planning Department and an encroachment permit from the City Engineer.

(3) Establishment of an outdoor dining area shall require site plan review and permit issuance. Any person or business wishing to operate an outdoor dining area shall apply for a permit by submitting the following to the City:

a. The site floorplan for the proposed outdoor dining are a shall include the following:

1. Chairs, tables, umbrellas, pl anters, signs and any other fixtures and furnishings to be included in the outdoor dining operation.

2. The applicants primary eating establishment or food court and the proposed circulation to and from the outdoor dining area, as well as pedestrian circulation at the perimeter of the outdoor dining area.

3. The public sidewalk or public right -of-way to be occupied with dimensions of the entire sidewalk or right -of-way and the clearance proposed for pedestrian access.

44 4. Names of and mMain entrances to the businesses immediately adjacent to the applicant's eating establishment.

b. Specifications and photographs of all proposed chairs, tables, umbrellas, signs, railings railing connections to the public sidewalk or right -of-way and the adjacent building, or other furnishing.

(4) Design standards for outdoor dining area.

a. The outdoor dining area shall be designed to facilitate sit -down dining activity through the utilization of chairs and tables. It shall also be compact and shall be clearly delineated to promote a visual relationship between the dining area and the surrounding pedestrian areas.

1. Minor outdoor dining areas shall not project further than four feet from the building façade.

b. Sidewalk clearance. Outdoor dining is permitted only where the sidewalk is wide enough to adequately accommodate both the usually pedestrian traffic in the area and the operation of the proposed activity. A clear, continuous pedestrian path not less than five (5) feet in width shall be required for unimpeded pedestrian circulation outside of the outdoor dining area. The minimum width of said pedestrian path may be increased by the City Engineer in areas requiring public utility access. Pedestrian path means a continuous, obstruction-free sidewalk area between the outside boundary of the dining area and any obstruction including, but not limited to, parking meters, street trees, landscaping, streetlights, bus benches, public art, and curb lines.

c. Restaurant entry clearance. No outdoor dining area shall be l ocated to block access either to or from a building. A minimum unobstructed clearance which extends two feet to either side of both door jambs shall be maintained.

d. Corner locations. Where an outdoor dining area is located on a corner, the outdoor dining area shall not be permitted within three feet of the corner of the building, along both frontages. Where an outdoor dining area is located adjacent to a driveway or an alley, the outdoor dining area shall not be permitted within five feet of the driveway or alley. These requirements may be modified at the discretion of the City Engineer or Director of Planning in locations where the sidewalk adjacent to the proposed outdoor dining area is wider than usual, where the perimeter of the building has an unusu al configuration, or where public safety is at risk.

e. Floor level. The floor of the outdoor dining area shall be at the same level as the sidewalk, and no alterations to the sidewalk or coverings on the sidewalk shall be permitted, unless expressly approved by the City Engineer.

45 f. The permittee shall not expand its outdoor dining area onto the sidewalk frontage of an adjacent business. Music Restricted. Musical instruments or sound reproduction systems are not permitted in outdoor dining areas.

g. Adjacent business restriction. An outdoor dining area may be located directly adjacent to another outdoor dining area. No separation between outdoor dining areas shall apply. No permittee shall expand their outdoor dining area onto the sidewalk frontage of an adjacent business.

h. Parking area restriction. In no case shall an outdoor dining area be located directly to parking, unless separated by a landscape barrier at least four feet deep and three feet high.

i. The design and appearance of all proposed improvements or furniture, including, but not limited to, tables, chairs, benches, umbrellas, and planters, to be placed in the sidewalk dining area shall present a coordinated and concerted theme and shall be comp atible with the appearance and design of the principal building.

j. A perimeter barrier shall be provided for the outdoor dining area. However, no barrier shall be required if the applicant proposes to limit the outdoor dining area to one row of tables and chairs abutting the wall of the establishment and if no alcohol will be served outside.

k. All barriers shall complement the building façade as well as any street furniture and shall be between 24 inches and 36 inches in height.

l. Barriers shall be removable. Barriers need not be removed each evening or night, but shall be capable of being removed, if needed, using recessed sleeves and posts, or by wheels that can be locked into place.

m. Barriers shall be able to withstand inclement weather and 1 00 pounds of horizontal force at the top of the barriers when in their fixed positions.

n. Objects placed on the sidewalk shall not interfere with or obstruct line -of-sight and shall maintain a clear sight triangle.

o. Any umbrellas, heater, or similar feature used in an outdoor dining area shall be safely secured. All heaters shall be in compliance with applicable fire code.

p. Outdoor lighting fixtures shall complement the style of the site. Lighting fixtures shall not create glare to pedestrians on the adjacent right -of-way and shall illuminate only the outdoor dining area. Outdoor lighting may be installed on the façade of the building or in the dining area in front of the façade.

q. Signage advertising alcohol products on umbrellas shall be prohibited. 46 (5) Parking. Space used for outdoor dining in the public right-of-way shall not be added to the gross square footage of the food service establishment when calculating parking requirements.

(6) Standards of operation.

a. The management of the eating establishment shall be responsible for operating the outdoor dining area and shall not delegate or assign the responsibility.

b. Hours of operation for the outdoor dining areas are to coincide with those of the associated indoor restaurant. When the establishment ceases serving food for the day, further seating in the outdoor dining area shall be prohibited and the outdoor dining area shall close when the patrons already seated in it leave.

c. The operator shall not permit t he following outside of the building: food preparation, utensils, glasses, napkins, and condiments on unoccupied tables, busing service stations, or trash and garbage storage. All exterior surfaces within the outdoor dining area shall be easily cleaned and shall be kept clean at all times by the permittee.

d. The permittee shall maintain the outdoor dining area and the adjoining street, curb, gutter, and sidewalk in a neat, clean, and orderly condition at all times.

This shall include all tables, chairs, benches, displays, or other appurtenances placed in the public right-of-way. Provisions shall be made for trash receptacles to service the sidewalk dining area. The operator shall remove the debris to a closed receptacle. No debris shall be swept, washed, or blown into the sidewalk, gutter or street.

e. Awnings and umbrellas shall be kept clean and in good condition at all times.

Umbrellas shall not advertise alcohol products.

f. Musical instruments or sound reproduction systems are permitted in outdoor dining areas but shall be maintained at sufficiently low volumes so as not to adversely affect the neighboring businesses, residents, or users of the public right-of-way beyond the outdoor dining area, or in violation of the City of Fontana Noise Ordinance.

g. Fixtures and equipment approved by the City pursuant to an outdoor dining area permit may remain in and on the sidewalk during such time that an outdoor dining permit is in effect.

h. Upon revocation or termination of an outdoor dining permit, al l fixtures and equipment shall immediately be removed from the sidewalk, and the sidewalk returned to its original condition.

47 i. No bar serving alcohol shall be allowed in the outside dining area. Alcohol service.

1. Minor outdoor dining. No alcohol shall be allowed in the out door dining area.

2. Major outdoor dining. Alcohol may be served in the outdoor dining area provided the area is enclosed and meets all other standards of the California Alcohol Beverage Control.

(7) Special closures. The City of Fontana shall have the right and power, acting through the City Manager or his/her designee, to prohibit the operation of an outdoor dining area at any time because of anticipated or actual problems or conflicts in the use of the sidewalk or right-of-way area. Such problems or conflicts may arise from, but are not limited, festivals, parades, marches and similar events, repairs and widening of the streets or sidewalks, or emergencies occurring in the area. To the extent possible, the permittee shall be given prior notice of any time period during which the operation of the outdoor dining area or the outdoor dining area shall be prohibited by the City.
…

Remainder of section to remain unchanged.

Sec. 30-371.2. Sierra core.

The Sierra core is the commercial core of Fontana and functions as the city center.

Uses include a mixture of commercial, retail, entertainment, office, and residential.

Building placement shall be close to the streets and integrated within the pedestrian realm. Architect ural features should provide shade and variation in building design.

…

Parking

Required Spaces
Residential 1.25 per unit
Nonresidential Uses Under 6,000 Square Feet No parking required Nonresidential Uses Over 6,000 Square Feet 50% of the requirements in the Zoning Code (30-
685.A)
Retail, Entertainment and Restaurant Uses Over
6,000 Square Feet Within 400 Feet of City-Owned
Public Parking Lot or Structure
No parking required
48 …

All other portions of the section to remain unchanged.

Sec. 30-390. Off-street parking and loading standards.
(a) Off-street parking standards.
(1) Off-street parking requirements shall be set forth in Division 5 4, which outlines the development standards by zoning district.
(2) Off-street parking dimensions shall be as set forth in Table 30 -390.A.—Off- Street Parking Dimensions below. Any type of stall not listed shall refer to Section 30-606 of the Zoning and Development Code.

Table 30-390.A.—Off-Street Parking Dimensions
Type of Stall Minimum Size (feet)
Standard 9 × 18
Garage/Carport 10 × 20
Parallel 8 × 21
Compact 8 × 16
Tandem 9 × 35
30° 9 × 17
45° 9 × 18
60° 9 × 21

The remainder of the section to remain unchanged.

49 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1049 Agenda Date: 6/9/2026
Agenda #: D. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1990 (Second Reading), Approving Development Agreement No 19- 000002R1 for Assessor’s Parcel Numbers: 0255-091-20, -23, -63, -64, and -65.

RECOMMENDATION:

Conduct a second reading by title only and adopt, Ordinance No. 1990, Approving Development Agreement No 19-000002R1 for Assessor’s Parcel Numbers: 0255-091-20, -23, -63, -64, and -65. ..End
COUCIL GOALS:
· Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.

DISCUSSION:

Ordinance No. 1990 was introduced by a vote of 4-1 at the May 26, 2026, Regular City Council Meeting.

FISCAL IMPACT:

There is no direct fiscal impact from this item.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 6/2/2026Page 1 of 1
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ATTACHMENT NO. 1
ORDINANCE NO. 1990

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

CALIFORNIA, APPROVING THE FIRST AMENDMENT TO
DEVELOPMENT AGREEMENT NO. 19 -000002R1, FOR ASSESSOR’S
PARCEL NUMBERS 0255-091-20, -23, -63, -64, AND -65, FINDING THAT

THE PROJECT WAS ADEQUATELY ANALYZED IN THE PREVIOUSLY

CERTIFIED GOODMAN LO GISTICS CENTER FONTA NA III

ENVIRONMENTAL IMPACT REPORT (EIR) (STATE CLEARINGHOUSE
[SCH] NO. 2019039071 ) A ND THE SUBSEQUENT ADDENDUM ,
DETERMINING PURSUANT TO CEQA GU IDELINES SECTION 151 62

THAT NO SUBSEQUENT OR SUPPLEMENTAL EIR IS REQUIRED, AND

DIRECT STAFF TO FILE A NOTICE OF DETERMINATION

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

WHEREAS, the City of Fontana Planning Commission (“Planning Commission”) has found that development agreements strengthen the public pl anning process, encourage private participation in comprehensive planning reduce s the economic costs of development, allow s for orderly planning of public improvements and services, allocates costs to achieve maximum utilization of public and private resou rces in the development process, and ensures that appropriate measures are taken to enhance and protect the environment; and

WHEREAS, pursuant to Section 30-322 of the ZDC and Section 4 of City Council Resolution No. 85-217, the Planning Commission shall conduct a public hearing on any proposed development agreements in accordance with Government Code Section 65867 and shall adopt a resolution recommending approval or denia l of the proposed development agreement to the City Council, including the reasons for its recommendation and an evaluation of the relationship of the proposed development agreement or amendment to applicable general and specific plans, as well as zoning requirements; and

WHEREAS, on June 23, 2020 the City of Fontana (“City”) approved entitlements for the GLC Fontana III Project (MCN No. 19 -000016), an industrial commerce center consisting of three buildings, through a General Plan Amendment (GPA 19 -000001), Zone Change (ZCA 19-000001), Specific Plan Amendment (SPA 19 -000001), Tentative Parcel Map (TPM 19-000002), Design Review (DRP 19-000005), and the certification of 51 Ordinance No. 1990
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the Goodman Logistics Center Fontana III Environmental Impact Report (EIR) (State Clearinghouse (SCH) No. 2019039071) (collectively, GLC Fontana III Development); and

WHEREAS, concurrent with the GLC Fontana III Development, the City Council approved Ordinance No. 1840 authoriz ing Development Agreement No. 19 -000002 for the project (“DA”); and

WHEREAS, on April 20, 2021, the Planning Commission approved MCN No. 21 - 000002 which consisted of Tentative Parcel Map No. 20354, Conditional Use Permit No. 21-001 and Administrative Site Plan No. 21-002 with an Addendum to the project’s EIR to subdivide the southern portion of the project site and establish a tractor trailer parking lot; and

WHEREAS, the DA together with the underlying project, was adequately analyzed in the previously certified Goodman Logistics Center Fontana III EIR (SCH No. 2019039071) and the subsequent Addendum . Pursuant to CEQA Guidelines Section 15162, no subsequent or supplemental EIR is required because there are no substantial changes to the project or its circumstances, and n o new information of substantial importance has been identified that would result in any new or more severe significant environmental impacts; and

WHEREAS, the DA gave GLC Fontana III vested rights to develop the GLC Industrial Center Development consistent with the SWIP, and in exchange obliged GLC III, LLC. (the “Applicant”) to provide specified public benefit fees to the City; and

WHEREAS, the City received an application from the Applicant on April 6, 2026, for an Amendment to the DA (“AGR No. 19-000002R1”) to amend the term of the DA and include sustainability features; and

WHEREAS, the terms and conditions of AGR No. 19-000002R1 were reviewed by the Planning Commission at a duly noticed public hearing held on May 5, 2026, at which time the Planning Commission recommended that the City Council approve the amendment; and

WHEREAS, the terms and conditions of AGR No. 19-000002R1 were found to be fair, just and reasonable, and it was further determined that (i) the economic interests of the City's residents, as well as the public health, safety and welfare , will be best served by the amendment; (ii) the amendment is consistent with the General Plan; (iii) the amendment conforms to public convenience, ge neral welfare and sound land use practices; (iv) the amendment will not be detrimental to the public health, safety and general welfare; and (v) the amendment will not adversely affect the orderly development or the preservation of property values for the subject property or any other property; and

WHEREAS, on May 26, 2026, the City Council held a public hearing on AGR No. 19-000002R1 where it received evidence and public testimony and documentation from the Planning Commission’s public hearing on May 5, 2026; and 52 Ordinance No. 1990
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WHEREAS, the City Council carefully considered all information pertaining to AGR No. 19-000002R1 presented at its public hearing on May 26, 2026; and

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

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

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

Section 2. Compliance with the California Environmental Quality Act. Based on the substantial evidence set forth in the record, including but not limited to, the Goodman Logistics Center Fontana III EIR and the subsequent Addendum thereto, and all related information presented to the City Council , the C ouncil finds pursuant to State CEQ A sections 15162 and 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA that the preparation of a subsequent or supplemental EIR is not required for the proposed Projects because the Project:

A. Will not result in substantial changes that would require major revisions of the Goodman Logistics Center Fontana III EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and

B. Will not result in substantial changes with respect to the circumstances under which the project is developed that would require major revisions of the Goodman Logistics Center Fontana III EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and

C. Does not present new information of substantial importance that was not known and could not have known with the exercise of reasonable diligence at the time the Goodman Logistics Center Fontana III Project EIR documents were certified showing any of the following:

(i) The Modified Project would have one or more significant effects not discussed in the EIR;

(ii) That significant effects previously examined would be substantially more severe than shown in the EIR;

(iii) That mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects, but the lead agency declined to adopt such 53 Ordinance No. 1990
4 of 5
measures; and

(iv) That mitigation measures or alternatives are considerably different from those analyzed would substantially reduce one or more significant effects on the environment, but w hich the leady agency declined to adopt

Section 3. Public Health, Safety and Welfare. Based on the entire record before it and all written and oral evidence presented, the City Council hereby finds that AGR No. 19-000002R1 promotes the public health, safety and welfare of the community because it will enable enhanced sustainability and environmental improvements at the project site, as well as support economic development within the surrounding communities and the City as a whole.

Section 4. Approval. The City Council hereby approves AGR No. 19-000002R1, in substantially the form attached hereto as Exhibit A and incorporated herein by this reference.

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

54 Ordinance No. 1990
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APPROVED AND ADOPTED this 9th day of June 2026.

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
55 Exhibit A

56 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 Govt. Code §§ 27383, 6103

FIRST AMENDMENT TO THE GOODMAN LOGISTICS CENTER

FONTANA III DEVELOPMENT AGREEMENT

This First Amendment to the Goodman Logistics Center Fontana II Development Agreement (“First Amendment”) is made and entered into as of _____ by and between the City of Fontana, a California municipal corporation (“CIT Y”), and GLC FONTANA III LLC , a Delaware limited liability company (“DEVELOPER”).

Recitals

a. CITY, through its City Council, and DEVELOPER entered into that certain Goodman Logistics Center Fontana III Development Agreement (“DA”), dated June 23, 2020.

b. The Effective Date of the DA is March 9, 2021.

c. Unless otherwise set forth herein, the defined terms used in this First Amendment shall be as defined in the DA.

d. The DA allows for the Development of the Property in accordance with its terms and pursuant to the approved Development Plan and provides substantial benefits to CITY that will further important policies and goals of CITY.

e. The DA provides that DEVELOPER and CITY may mutually agree to extend the Term of the DA, provided such extension agreement is in writing.

f. The Parties mutually wish to extend the Term of the DA for an additional ten (10) years and to clarify additional design features that will be incorporated by DEVELOPER into the Project in exchange for the benefits set forth in this First Amendment.

57 g. Except for extending the Term of the DA and specifying those design features that DEVELOPER shall incorporate into the Project as set forth in Sections 1 and 2, below, this First Amendment does not otherwise modify any provisions of the DA.

Agreement

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. Recitals. The foregoing recitals are true, correct and hereby incorporated into this First Amendment by this reference as though fully set forth herein.

2. Term Extension. The Term of the DA is extended by an additional ten (10) years from the Effective Date, for a total term of twenty (20) years from the Effective Date.

3. Project Design Features. The Project, having been approved prior to the adoption of Ordinance No. 1891 with the DA vesting same, is not subject to the requirements of Ordinance No. 1891. However, DEVELOPER agrees and covenants to incorporate the following design features (collectively, the “Design Features”) into those portions of the Project that have not been constructed as of the date that the City approves this First Amendment:

a. Any new trees installed will be 36-inch box trees and shall be spaced no greater than 40 feet on center.

b. DEVELOPER will install signage indicating a three-minute diesel truck engine idling restriction shall be posted on site along entrances to the site and in the dock areas and shall be strictly enforced by the facility operator.

c. Prior to issuance of certificate of occupancy facility operators shall establish and submit for approval to the Planning Director a truck routing plan to and from the state highway system based on the city's latest truck route map. The plan shall describe the operational characteristics of the use of the facility operator, including, but not limited to, hours of operations, types of items to be stored within the building, and proposed truck routing to and from the facility to designated truck routes that avoids passing sensitive receptors, to the greatest extent possible. The plan shall include measures, such as signage and pavement markings, queuing analysis and enforcement, for preventing truck queuing, circling, stopping, and parking on public streets. Facility operator shall be responsible for enforcement of the plan. A revised plan shall be submitted to by the Planning Director prior to a business license being issued by the city for any new tenant of the property. The Planning Director shall have discretion to determine if changes to the plan are necessary including any additional measures to alleviate truck routing and parking issues that may arise during the life of the facility.
58 d. Signs and drive aisle pavement markings shall clearly identify the on-site circulation pattern to minimize unnecessary on-site vehicular travel.

e. Facility operators shall post signs in prominent locations inside and outside of the building indicating that off-site parking for any employee, truck, or other operation related vehicle is strictly prohibited. City may require facility operators to post signs on surface streets indicating that off-site truck parking is prohibited by city ordinance and/or the truck routing plan.

f. Signs shall be installed in public view with contact information for a local designated representative who works for the facility operator and who is designated to receive complaints about excessive dust, fumes, or odors, and truck and parking complaints for the site, as well as contact information for the SCAQMD's on-line complaint system and its complaint call-line: 1-800-288- 7664. Any complaints made to the facility operator's designee shall be answered within 72 hours of receipt.

g. Signs shall be installed at all truck exit driveways directing truck drivers to the truck route as indicated in the truck routing plan and state highway system.

h. On-site motorized operational equipment shall be ZE (zero emission equipment).

i. The office portion of a building's rooftop that is not covered with solar panels or other utilities shall be constructed with light colored roofing material with a solar reflective index ("SRI") of not less than .29. This material shall be the minimum solar reflective rating of the roof material for the life of the building.

j. The Project shall include a minimum 100 kilowatt (kw) solar generation facility.

This facility shall incorporate decorative screening and facility along with screening shall be depicted on plans to be submitted for review and approval from the Planning Director prior to installation.

k. All building roofs shall be solar-ready, which includes designing and constructing buildings in a manner that facilitates and optimizes the future installation of a rooftop solar photovoltaic (PV) system.

l. A minimum of 10% of all passenger vehicle parking will have EV conduit infrastructure for future charging stations. Signage shall be installed indicating EV charging stations and specifying that spaces are reserved for clean air/EV vehicles. Unless superior technology is developed that would replace the EV charging units, facility operator and any successors in interest shall be responsible for maintaining the EV charging stations in working order for the life of the facility.

59 m. Bicycle racks are required per section 30-714 of the zoning and development code and in the amount required for warehouse uses by table 30-714 of the zoning and development code. The racks shall include locks as well as electric plugs to charge electric bikes. The racks shall be located as close as possible to employee entrance(s). Nothing in this section shall preclude the warehouse operator from satisfying this requirement by utilizing bicycle parking amenities considered to be superior such as locating bicycle parking facilities indoors or providing bicycle lockers.

n. Cool surface treatments shall be added to all drive aisles and parking areas or such areas shall be constructed with a solar-reflective cool pavement such as concrete.

o. To ensure that warehouse electrical rooms are sufficiently sized to accommodate the potential need for additional electrical panels, either a secondary electrical room shall be provided in the building, or the primary electrical room shall be sized 25 percent larger than is required to satisfy the service requirements of the building or the electrical gear shall be installed with the initial construction with 25 percent excess demand capacity.

p. DEVELOPER will install a conduit and associated infrastructure to charge future electric yard equipment and electric trucks.

q. Use of low VOC architectural and industrial maintenance coatings (e.g., paints) shall be required.

r. The facility operator shall incorporate a recycling program.

s. The following environmentally responsible practices shall be required during construction: (1)The contractor shall use reasonable best efforts to deploy the highest rated CARB Tier technology that is available at the time of construction.

Prior to permit issuance, the construction contractor shall submit an equipment list confirming equipment used is compliant with the highest CARB Tier at the time of construction. Equipment proposed for use that does not meet the highest CARB Tier in effect at the time of construction, shall only be approved for use at the discretion of the planning director and shall require proof from the construction contractor that, despite reasonable best efforts to obtain the highest CARB Tier equipment, such equipment was unavailable.(2)Use of electric-powered hand tools, forklifts, and pressure washers.(3)Designation of an area in any construction site where electric-powered construction vehicles and equipment can charge.(4)Identification in site plans of a location for future electric truck charging stations and installation of a conduit to that location.(5)Diesel-powered generators shall be prohibited except in case of emergency or to establish temporary power during construction.

t. A property maintenance program shall be submitted for review and approval by the Planning Director or his/her designee prior to the issuance of building permits. 60 The program shall provide for the regular maintenance of building structures, landscaping, and paved surfaces in good physical condition, and appearance. The methods and maximum intervals for maintenance of each component shall be specified in the program.

u. Property owner shall provide facility operator with information on incentive programs such as the Carl Moyer Program and voucher incentive program and shall require all facility operators to enroll in the United States Environmental Protection Agency's SmartWay Program.

4. Exhibits. The following documents are attached hereto and, by this reference, are incorporated into and made a part of this Agreement and shall replace the DA exhibits:

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

5. Recordation of Agreement. This Agreement shall be recorded with the San Bernardino County Recorder within the period required by Section 65868.5 of the Government Code.

[SIGNATURES ON FOLLOWING PAGE]

CITY OF FONTANA,
a California municipal corporation

By: _____________________

61 GLC FONTANA III LLC,
a Delaware limited liability company

By: ______________________
Name: ______________________
Title: ______________________
Dated: ______________________

UPDATED EXHIBIT A TO

DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA AND GLC FONTANA III, LLC

Legal Description of the Property

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF FONTANA, 62 IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

1. THE NORTH 93.3 FEET OF THE WEST HALF OF LOT 775, 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 RECORDED IN BOOK 11, PAGE 12 OF MAPS, RECORDS OF SAID COUNTY.

SAVING AND EXCEPTING THEREFROM THAT PORTION THEREIN LYING WITHIN THE EAST 6.17 ACRES OF THE WEST HALF OF SAID LOT.

2. THE NORTH 175 FEET OF THE WEST 300 FEET OF THE SOUTH HALF OF LOT 770, ACCORDING TO PLAT SHOWING SUBDIVISION OF LANDS BELONGING

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

FONTANA, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED IN BOOK 11 OF MAPS, PAGE 12, RECORDS OF SAID COUNTY.

3. PARCEL 1 OF PARCEL MAP NO. 20084, IN THE CITY OF FONTANA, COUNTY

OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 255, PAGES 74 THROUGH 79, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

4. PARCEL 2 OF PARCEL MAP NO. 20084, IN THE CITY OF FONTANA, COUNTY

OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 255, PAGES 74 THROUGH 79, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

5. PARCEL 3 OF PARCEL MAP NO. 20084, IN THE CITY OF FONTANA, COUNTY

OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 255, PAGES 74 THROUGH 79, INCLUSIVE, OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

UPDATED EXHIBIT B TO

DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA AND GLC FONTANA III, LLC

Map showing Property and its location

63 UPDATED EXHIBIT E TO

DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF FONTANA AND GLC FONTANA III, LLC

Existing Development Approvals

A. General Plan Amendment No. 19-001, approved by City Council Resolution No. 2020-071 on June 23, 2020.
64 B. Southwest Industrial Park (SWIP) Specific Plan Amendment No. 19-002 approved by City Ordinance No. 1839 on June 23, 2020.

C. Zone Change No. 19-01, approved by City Council Ordinance No. 1838 on June 23, 2020.

D. Tentative Parcel Map No. 18109 (TPM No. 19-002), approved by the City Council on June 23, 2020.

E. Design Review No. 19-005, approved by the City Council on June 23, 2020.

F. Goodman Logistics Center Fontana III Environmental Impact Report (EIR) (SCH No. 2019039071) certified by City Council Resolution No. 2020-071 on June 23, 2020.

G. Design Review Sign Program No. 19-007, approved by City Council on June 23, 2020.

H. Tentative parcel Map 20354, Conditional Use Permit 21-001 and Administrative Site Plan 21-002, approved by Planning Commission on April 20, 2021

65 City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1050 Agenda Date: 6/9/2026
Agenda #: E. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1991 (Second Reading), Approving Development Agreement No 23- 0085R1, as to Assessor’s Parcel Number 0255-021-17.

RECOMMENDATION:

Conduct a second reading by title only and adopt, Ordinance No. 1991, Approving Development Agreement No 23-0085R1, as to Assessor’s Parcel Number 0255-021-17 ..End
COUCIL GOALS:
· Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.

DISCUSSION:

Ordinance No. 1991 was introduced by a vote of 4-1 at the May 26, 2026, Regular City Council Meeting.

FISCAL IMPACT:

There is no direct fiscal impact from this item.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 6/2/2026Page 1 of 1
powered by Legistar™
66 1 of 5

ATTACHMENT NO. 1
ORDINANCE NO. 1991

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT NO. 23 -0085R1, AS TO ASSESSOR’S PARCEL
NUMBER 0255 -021-17, MAKING ASSOCIATED C ALIFORNIA

ENVIRONMENTAL QUALITY ACT FINDINGS, AND DIRECT ING
STAFF TO FILE A NOTICE OF EXEMPTION.

WHEREAS, the City of Fontana previously granted entitlements for the Citrus/Oleander Industrial Commerce Center Project through its approvals of a General Plan Amendment (22-004), Zone Change (22-005), Specific Plan Amendment (22-002), Tentative Parcel Maps (TPMs 22 -009, -030, and -031), and Design Reviews (22 -029, - 061, and -062) (collectively, Citrus Oleander Entitlements); and

WHEREAS, concurrent with the Citrus Oleander Entitlements, the City Council of the City of Fontana approved Ordinance No. 1935 which authorized the City to enter into Development Agreement No. 23-085 (DA) with Acacia Real Estate Group, Inc. (Acacia); and

WHEREAS, the DA gave Acacia vested rights to develop the Citrus/Oleander Industrial Commerce Center Project consistent with the Citrus Oleander Entitlements, and in exchange obliged Acacia to provide specified public benefit fees to the City; and

WHEREAS, in October 2025, the Fontana Planning Commission (Planning Commission) considered and approved Design Review 22-062-R2, to reduce the size of one of the industrial commerce center buildings (originally approved in Design Review 22-062) from 193,462 square feet to approximately 83,632 square feet, and to reduce the size of that property from 8.7 acres to 4.6 acres; and

WHEREAS, Resolution No 25-040 approving Design Review 22-062-R2 requires two separate amendments to the DA – one for Assessor’s Parcel Numb er 0255-021-17 (Acacia Property) and one for the Assessor’s Parcel Numbers 0255 -011-13, 0255-011- 14, 0255 -011-18, 0255 -011-19 and 0255 -011-25 thru 0255 -011-32 (North Palisades Property) – to accomplish the following: (1) require the cumulative payment of public benefit fees of not less than $4,300,000 – half due at building permit and half due a certificate of occupancy – with the Acacia Property responsible for $881,678 and the North Palisades Property responsible for $3,418,322; (2) update the vested entitlements under the DA amendment for the Acacia Property to include Design Review 22 -062-R2; (3) require the parties executing the DA amendments to warrant and represent that they are the legal or equitable owners of the property; (4) require that the DA amendments be recorded in the Office of the San Bernardino County recorder within thirty days after City Council approval; (5) prohibit either DA amendment from taking effect unless both DA 67 Ordinance No. 1991
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amendments take effect; and (6) rescind the 22-062-R2 design review approval if both of the DA amendments are not timely recorded; and

WHEREAS, consistent with Planning Commission direction, City staff together with representatives of the future owners of the Acacia Property negotiated and prepared a DA amendment that, together with a separately negotiated and concurrently presented DA amendment for the North Palisades Property, accomplishes the intent and direction provided in Planning Commission Resolution No. 25-040.

WHEREAS, on April 21, 2026, the Planning Commission held a public meeting on AGR No. 23-0083R1 where it received evidence and public testimony on the Acacia DA Amendment and unanimously recommended in Resolution No. PC 2026-017 that the Fontana City Council (City Council) (1) determine that the Acacia DA Amendment is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and 15378 and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment; (2) determine that the Acacia DA Amendment together with the underlying project were adequately analyzed in the previously certified Citrus and Oleander Avenu e at Santa Ana Avenue Project Environmental Impact Report (EIR) (State Clearinghouse No. 2022110389) and its subsequent Addendum, and pursuant to CEQA Guidelines Section 15162, no subsequent or supplemental EIR is required because there are no substantial changes in the project or its circumstances, and no new information of substantial importance has been identified that would result in any new or more severe significant environmental impacts; and (3) adopt an ordinance approving the Acacia DA Amendment.

WHEREAS, on April 10, 2026, notice of the May 26, 2026, City Council public hearing for the Acacia DA amendment was published in the Sun Newspaper and was posted at designated City bulletin boards; and

WHEREAS, on May 26, 2026, the City Council held a public hearing on the Acacia DA Amendment where the City Council received evidence and public testimony pertaining to the Amendment and documentation from the Planning Commission’s public hearing on April 21, 2026; and

WHEREAS, the City Council carefully considered all information pertaining to the Acacia DA Amendment, including the staff report, Planning Commission recommendations, findings, and all the information, evidence, and testimony presented at its public hearing on May 26, 2026,

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

68 Ordinance No. 1991
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THE CITY COUNCIL OF THE CITY OF FONTANA , CALIFORNIA DOES ORDAIN AS FOLLOWS:

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

Section 2. Compliance with the California Environmental Quality Act . The City Council has reviewed and considered the Acacia DA Amendment and find s and determines that the amendment is categorically exempt from the CEQA pursuant to CEQA Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and 15378 and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment; and Section 3. Additional Basi s for Compliance with the California Environmental Quality Act. Based on the substantial evidence set forth in the record, including but not limited to, the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR and the subsequent Addendum thereto, and all related information presented to the City Council, the City Council finds and determines pursuant to State CEQA sections 15162 and 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA that the preparation of a s ubsequent or supplemental EIR is not required because the project:

A. Will not result in substantial changes that would require major revisions of the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR due to the involvement of new significant enviro nmental effects or a substantial increase in the severity of previously identified significant effects; and

B. Will not result in substantial changes with respect to the circumstances under which the project is developed that would require major revisions of the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and

C. Does not present new information of substantial importance that was not known and could not have known with the exercise of reasonable diligence at the time the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR documents were certified showing any of the following:

(i) The modified project would have one or more significant effects not discussed in the EIR;

(ii) That significant effects previously examined would be substantially more severe than shown in the EIR;
69 Ordinance No. 1991
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(iv) That mitigation measures or alternatives are considerably different from those analyzed would substanti ally reduce one or more significant effects on the environment, but which the leady agency declined to adopt

Section 4 . Approval of Acacia DA Amendment . The Acacia DA Amendment, attached hereto as Exhibit “A”, is hereby approved and the Mayor is hereby authorized to execute the Acacia DA Amendment on behalf of the City. The City Manager, or his or her designee, is directed and authorized to do all of the following:
(i) Prepare a final version of the Acacia DA Amendment for execution and recording that fully reflects the action of the City Council in adopting the Acacia DA Amendment , subject to review and approval of the City Attorney; and

(ii) Make all necessary and appropriate clerical, typographical, formatting, and non-substantial corrections or revisions to the adopted Acacia DA Amendment prior to execution and recording; and

(iii) Implement the Acacia DA Amendment in accordance with its terms.

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

APPROVED AND ADOPTED this 9th day of June 2026.

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
71 “EXHIBIT A”

ACACIA DA AMENDMENT

Recorded at request of: )
Clerk, City Council )
City of Fontana )
)
When recorded return to: )
City of Fontana )
8353 Sierra Avenue )
Fontana, CA 92335 )
Attention: City Clerk )
)
Exempt from Filing Fees, Government Code Section 6103

DEVELOPMENT AGREEMENT 23-0085R1

FIRST AMENDMENT TO AND RESTATEMENT OF DEVELOPMENT AGREEMENT NO. 23-085, APPLICABLE TO THE ACACIA PROPERTY

AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation

and

ACACIA REAL ESTATE GROUP, INC.,

72 60410144.1/200475.0009
DEVELOPMENT AGREEMENT NO. 23-0085R1
This First Amendment to and Restatement of Development Agreement 23 -0085, Applicable to the Acacia Property (hereinafter “Amended and Restated Agreement”) is entered into effective on _______ (hereinafter the “ Effective Date”) by and among the City of Fontana, a California municipal corporation (hereinafter, “CITY”), and Acacia Real Estate Group, Inc. (hereinafter, “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of su ch property, pursuant to Section 65864 et seq. of the Government Code; and WHEREAS, OWNER filed an application for, and the City Council of the City of Fontana (“City Council”), approved, three design reviews (DRP No. 22-029R1, DRP No. 22-062R1, and DRP No . 22-061R1); three tentative parcel maps (TPM No. 22 -009R1, TPM No. 22-030R1, and TPM No. 22-031R1), a general plan amendment (GPA No. 23- 004), a zone code amendment (ZCA No. 23 -006), a specific plan amendment (SPA No. 23-004), and a development agreement (collectively, MCN No. 23-100) (hereinafter the “Project”) for that certain real property located north of Santa Ana Avenue, east of Citrus Avenue, and west of Cypress Avenue, identified as Assessor’s Parcel Numbers (“APN(s)”) 0255-021-17, -18, -22 thru -24; and 0255-011-13, -14, -18, -19, -25 thru -32, as more particularly described on Exhibit “A-1” to this Amended and Restated Agreement (the “Property”); and
WHEREAS, APN 0255 -021-17 is located north of Santa Ana Avenue, east of Oleander Avenue, and west of Cypress Avenue, as more particularly described on Exhibit “A-2” to this Amended and Restated Agreement (“Acacia Property”); and WHEREAS, APNs 0255 -011-13, 0255 -011-14, 0255 -011-18, 0255 -011-19 and 0255-011-25 thru 0255 -011-32 are located north of Santa Ana Avenue, east of Citrus Avenue, and west of Oleander Avenue, as more particularly described on Exhibit “A-3” to this Amended and Restated Agreement (“North Palisades Property”); and WHEREAS, APNs 0255-021-18, and 0255-021-22 thru 0255-021-024 are located north of Santa Ana Avenue, east of Oleander Avenue, west of Cypress Avenue, as more particularly described on Exhibit “A-4” (“Remaining Original DA Property”); and WHEREAS, the owners of the Property were aware of the Project and expressly authorized and consented to the filing and approval of the related applications, including the application for and approval and execution of Development Agreement No. 23 -085 (“Original DA”), with the CITY in connection therewith; and WHEREAS, the CITY and OWNER ente red into the Original DA on or about November 15, 2023, and the Original DA was recorded against the Property in the Official Records of San Bernardino County on December 18, 2023, as document number 2023 - 0311188; and
73 60410144.1/200475.0009
WHEREAS, subsequent to the execution of the Original DA, OWNER desired to change its plans for the development of the Property and to limit the scope of its development to the Acacia Property (“Acacia Project”); and WHEREAS, OWNER has determined that it no longer requires the remaining parcels of the Property outside the Acacia Property for the purposes of its current project, and in connection therewith desires to enter into this Amended and Restated Agreement, as applicable only to the Acacia Property; and
WHEREAS, NP SANTA ANA LLC desires to acquire the North Palisades Property for development of the portion of the Project planned for the North Palisades Property (“North Palisades Project ”), and in connection therewith enter into a separate Amendment to and Restatement of the Original DA ( “NP Santa Ana Amended and Restated Agreement”), as applicable only to the North Palisades Property; and WHEREAS, by electing to enter into this Amended and Restated Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Amended and Restated 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 Amended and Restated Agreement; and
WHEREAS, prior to the adoption of the Development Approvals described in this Amended and Restated Agreement, the City Council reviewed, considered, and certified the Environmental Impact Report (“ EIR”) for the Citrus/Oleander Industrial Center of which the Project, as that term is defined below, is a part, and made findings concerning the mitigation measures for the Project, and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and CITY CEQA Guidelines; and
WHEREAS, this Amended and Restated 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, publ ic hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Amended and Restated Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
74 60410144.1/200475.0009
WHEREAS, this Amended and Restated Agreement will eliminate uncertainty in planning and provide for the orderly development of the Acacia Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the Acacia Project, and generally serve the purposes for which development agreements under Sections 65864 et seq of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Acacia Property in accordance with this Amended and Restated 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 Amended and Restated Agreement shall be defined as follows:

1.1.1. “Acacia Project ” the development of the Acacia Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Amended and Restated Agreement.

1.1.2. “Acacia Property” means APN 0255-021-17, which is located north of Santa Ana Avenue, east of Oleander Avenue, and west of Cypress Avenue, as shown on Exhibit “A-2”.

1.1.3. “Amended and Restated Agreement” means this First Amendment to and Restatement of Development Agreement No. 23-0085.

1.1.4. “APN(s)” means assessor’s parcel numbers as used by the San Bernardino County Clerk/Recorder.

1.1.5. “Certificate” has the meaning assigned to that term in Section 6.6.

1.1.6. “CITY” means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California.

1.1.7. “City Council” means the City Council of the City of Fontana, California.

1.1.8. “Development” means the improvement of the Acacia Property for the purposes of completing the structures, improvements and facilities comprising the Acacia Project including, but not limited to: grading; the construction of infrastructure and 75 60410144.1/200475.0009
public facilities related to the Acacia Project whether located within or outside the Acacia 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.

1.1.9. “Development Approvals ” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Acacia Property including, but not limited to:
(a) conditional use permits and design review permits;
(b) tentative parcel maps;
(c) General Plan and Zoning Code amendments; and,
(d) grading, encroachment and building permits.

1.1.10. “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.

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

1.1.12. “Development Plan ” m eans the Existing Development Approvals and the Existing Land Use Regulations, as those terms are defined herein, applicable to development of the Property.

1.1.13. “Effective Date” means the date upon which all of the following have occurred: (1) the ordinance approving this Amended and Restated Agreement becomes effective, (2) the ordinance approving the NP Santa Ana Amended and Restated Agreement becomes effective, (3) this Amended and Restated Agreement has been executed by the fee owner of the Acacia Property and delivered to the CITY within one 76 60410144.1/200475.0009
hundred twenty (120) days following the approval (second reading) of the ordinance approving this Amended and Restated Agreement; and (4) the NP Santa Ana Amended and Restated Agreement has been executed by the fee own er of the North Palisades Property and delivered to the CITY within the later of (a) one hundred twenty (120) days following the close of escrow for acquisition of the North Palisades Property by the “OWNER” (as that term is defined in the NP Santa Ana Ame nded and Restated Agreement) and (b) one hundred twenty (120) days following the entitlements for the North Palisades Property becoming final and non-appealable (and in no event more than 210 days following the City’s grant of entitlements for the North Palisades Property).

1.1.14. “EIR” means the Environmental Impact Report for the Citrus/Oleander Industrial Center as certified by the City Council, designated as State Clearinghouse number 2022110389.

1.1.15. “Existing Development Approvals ” means all Development Approvals approved or issued on or prior to the Effective Date.

1.1.16. “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date.

1.1.17. “Fund” has the meaning assigned to that term in Section 9.2.

1.1.18. “General Plan” means the Comprehensive General Plan of the City of Fontana, as such General Plan existed as of the Effective Date of this Amended and Restated Agreement.

1.1.19. “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of proposed buildings, the provisions for reserva tion or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Acacia 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.

1.1.20. “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. 77 60410144.1/200475.0009

1.1.21. “North Palisades Project” the development of the North Palisades Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of the NP Santa Ana Amended and Restated Agreement.

1.1.22. “North Palisades Property” means APNs 0255-011-13, 0255-011- 14, 0255-011-18, 0255-011-19 and 0255 -011-25 thru 0255 -011-32, which are located north of Santa Ana Avenue, east of Citrus Avenue, and west of Oleander Avenue, as shown on Exhibit “A-3”.

1.1.23. “NP Santa Ana Amended and Restated Agreement ” means an amendment to and restatement of the Original DA, entered into by and between the CITY and the fee owner of the North Palisades Property, which shall be applicable to and binding upon the fee owner of the North Palisades Property and its successors in interest.

1.1.24. “OWNER” means the persons and entities listed as OWNER on page 1 of this Amended and Restated Agreement and their successors in interest to all or any part of the Acacia Property.

1.1.25. “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 Amended and Restated Agreement.

1.1.26. “Property” means the real property described on Exhibit “A-1” as shown on to this Amended and Restated Agreement.

1.1.27. “Public Benefit Fee ” means the public benefit fee to be paid by OWNER as described in Section 4.3 of this Amended and Restated Agreement.

1.1.28. “Remaining Original DA Property” means APNs 0255-021-18, and 0255-021-22 thru -24, which are located north of Santa Ana Avenue, east of Oleander Avenue, and west of Cypress Avenue, as shown on Exhibit “A-4”.

1.1.29. “Reservations of Authority ” means the rights and authority excepted from the assurances and rights provided to OWNER under this Amended and Restated Agreement and reserved to CITY under Section 3.6 of this Amended and Restated Agreement.

1.1.30. “Subsequent Development Approvals ” means all Development Approvals required subsequent to the Eff ective Date in connection with development of the Acacia Property.

1.1.31. “Subsequent Land Use Regulations ” means any Land Use Regulations adopted and effective after the Effective Date of this Amended and Restated Agreement.

1.1.32. “Term” has the meaning assigned to that term in Section 2.3. 78 60410144.1/200475.0009

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

Exhibit “A-1” — Legal Description the Property.

Exhibit “A-2” — Legal Description the Acacia Property.

Exhibit “A-3” — Legal Description the North Palisades Property.

Exhibit “A-4” — Legal Description of Remaining Original DA Property Exhibit “B” — Map showing Property and its location.

Exhibit “C” – Form of Assignment and Assumption Agreement Exhibit “D” – Subsequent Development Approvals Integrated Into Vested Rights under Section 3.5

2. GENERAL PROVISIONS.

2.1 Binding Effect of Original DA.
(a) Upon the occurrence of the Effective Date, the Acacia Property shall be subject to this Amended and Restated Agreement. OWNER agrees and acknowledges that (1) the Original DA shall remain in full force and effect unless and until the Effective Date occurs, and (2) if this Amended and Restated Agreement and/or the NP Santa Ana Amended and Restated Agreement are r escinded or invalidated for any reason, the Original DA shall remain binding upon and applicable to the Acacia Property, its owners, and their successors in interest.

(b) Development of the Acacia Property is hereby authorized and shall be carried out o nly in accordance with the terms of either this Amended and Restated Agreement (if, and for so long as, this Amended and Restated Agreement is effective and applicable to the Acacia Property) or the Original DA.

(c) For so long as this Amended and Resta ted Agreement is effective and applicable to the Acacia Property, this Amended and Restated Agreement shall supersede the Original DA in its entirety with respect to the Acacia Property.

(d) For the avoidance of doubt, if either (1) this Amended and Restated Agreement has not been executed by the fee owner of the Acacia Property within one hundred twenty (120) days following the approval (second reading) of the ordinance approving this Amended and Restated Agreement; or (2) the NP Santa Ana Amended and Restated Agreement has not been executed by fee owner of the North Palisades Property within 79 60410144.1/200475.0009
the later of (a) one hundred twenty (120) days following the close of escrow for acquisition of the No rth Palisades Property by the “OWNER” (as that term is defined in the NP Santa Ana Amended and Restated Agreement) and (b) one hundred twenty (120) days following the entitlements for the North Palisades Property becoming final and non -appealable (and in n o event more than 210 days following the City’s grant of entitlements for the North Palisades Property), then this Amended and Restated Agreement shall never become effective, and the Original DA shall remain binding upon and applicable to the Acacia Prope rty, its owners, and their successors in interest.

2.2 Ownership of Acacia Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the Acacia Property. Prior to CITY’s execution and recordation of this Amended and Restated Agreement, OWNER shall submit to CITY reasonable proof of its fee ownership of the Acacia Property as determined by CITY in its sole and absolute discretion.

2.3 Term. The initial term of this Amended and Restated 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 Amended and Restated Agreement. Notwithstanding the foregoing, the term of this Amended and Restated Agreement may be extended for an additional five (5) years following expiration of the initial term, provided the following have occurred:

(a) OWNER provides at least ninety (90) days written notice to CITY prior to the expiration of the initial term; and

(b) OWNER shall have obtained building permits for at least sixty -seven percent (67%) of the gross area of the industrial building(s) contemplated by the Acacia Project; and

The initial term and, if and upon extension, the 5 -year extension, shall sometimes be referred to herein collectively as the “Term.”

The term of this Amended and Restated Agreement shall not be considered to run and shall toll for any period in which the Acacia Project is being challenged or litigated by a third-party.

2.4 Assignment.

2.4.1 Right to Assign . OWNER shall have the right to sell, transfer or assign the Acacia Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410 et seq.) to any person, partnership, joint venture, firm or corporation at any time during the term of this Amended 80 60410144.1/200475.0009
and Restated 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 Amended and Restated Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or a ssignment of any right or interest under this Amended and Restated Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Acacia Property. (b) Concurrent with any such sale, transfer or assignment, or wit hin fifteen (15) business days thereafter, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement, in a form substantially similar to that attached hereto as Exhibit “C” which has been d eemed 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 Amended and Restated Agreement. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Amended and Restated Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Amended and Restated Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Amended and Restated Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.

2.4.2 Release of Transferring Owner . Notwithstanding any sale, transfer or assignment, a transferring owner shall continue to be obligated under this Amended and Restated 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 Acacia Property.
(b) OWNER is not then in default under this Amended and Restated Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

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.
81 60410144.1/200475.0009

2.4.4 Partial Release of Purchaser, Transferee or Assignee of Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot within the Acacia Property, 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 Amended and Restated Agreement relating to all other portions of the Acacia 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 Amended and Restated Agreement.

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

2.5 Amendment or Cancellation of Amended and Restated Agreement . This Amended and Restated 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 Agreem ent Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Amended and Restated Agreement. Any amendment of this Amended and Restated Agreement which has been requested by OWNER shall only be processed and considered by the CITY upon the payment of the applicable processing charge.

2.6 Termination. This Amended and Restated Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated ter m of this Amended and Restated Agreement as set forth in Section 2.3.
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(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Amended and Restated Agreement (in which case the Original DA shall remain binding upon and applicable to the Acacia Property, its owners, and their successors in interest).
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Amended and Restated Agreement (in which case the Original DA shall remain binding upon and applicable to the Acacia Property, its owners, and their successors in interest).
(d) Completion of the Acacia Project in accordance with the terms of this Amended and Restated Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications. (e) Termination of this Amended and Restated Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.

Termination of this Amended and Restated Agreement shall not constitute termination of any other land use entitlements or agreements approved for the Acacia Property. Upon the termination of this Amended and Restated 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 Amended and Restated Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Amended and Restated Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of thi s Amended and Restated Agreement by OWNER to CITY buildings on which construction has not yet begun shall be refunded to OWNER by CITY.

2.7 Notices.
(a) As used in this Amended and Restated 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
83 60410144.1/200475.0009
Fontana, CA 92335
Attn: City Manager
Telephone: (909) 350-7600

Copy to:

Best, Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441

If to OWNER:

Acacia Real Estate Group, Inc.

Attn: David B. Pittman
260 Newport Center Drive, Suite 100
Newport Beach, CA 92660
Telephone: (714) 270-0777

Copy to:

Allen Matkins Leck Gamble Mallory & Natsis, LLP
Attn: Jonathan Shardlow
2010 Main Street, 8th Floor,
Irvine, CA 92614
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 Amended and Restated Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Acacia Property in accordance with, and to the extent of, the Development Plan. The Acacia Project shall remain subject to all Subsequent Development Approvals required to complete the Acacia Project as contemplated by the Development Plan.

Except as otherwise p rovided in this Amended and Restated Agreement, the permitted uses of the Acacia 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.

If the either (1) this Amended and Restated Agreement has not been executed by the fee owner of the Acacia Property within one hundred twenty (120) days following the approval (second reading) of the ordinance ap proving this Amended and Restated 84 60410144.1/200475.0009
Agreement; or (2) the NP Santa Ana Amended and Restated Agreement has not been executed by the fee owner of the North Palisades Property within one hundred twenty (120) days following the approval (second reading) of the o rdinance approving the NP Santa Ana Amended and Restated Agreement, then (A) OWNER shall take no action in furtherance of development of the Project without the CITY’s prior written approval, which CITY may grant or withhold in its sole and absolute discre tion, (B) all entitlements and approvals issued for or in connection with the Project shall be deemed automatically rescinded by CITY without further action by the CITY and without any further obligation by the CITY to the OWNER with respect thereto, and s hall be null and void and of no further force or effect, and (C) CITY may, in its sole and absolute discretion, elect to take formal action to rescind any entitlements issued for or in connection with the Project; OWNER expressly waives and releases any an d all rights, vested or otherwise, that it may have to object to or interfere with such formal action.

3.2 Effect of Amended and Restated Agreement on Land Use Regulations .

Except as otherwise provided under the terms of this Amended and Restated Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Acacia Property, the density and intensity of use of the Acacia Property, the maximum height and size of proposed buildings, and the des ign, improvement and construction standards and specifications applicable to development of the Acacia 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 Amended and Restated 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 Acacia 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 Acacia Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4. Notwithstanding anything to the contrary set forth in this Section 3.3 or in this Amended and Restated Agreement, CITY acknowledges that OWNER shall have no obligation to construct the Acacia Project and that OWNER shall not be subject to any penalty nor shall CITY be entitled to any legal or equitable remedy, including, without limitation, a claim for specific perfo rmance of this Amended and Restated Agreement, if OWNER determines not to construct the Acacia Project for any reason.
85 60410144.1/200475.0009

3.4 Phasing Plan. Development of the Acacia Property shall be subject to all timing and phasing requirements established by the Development Plan.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Acacia Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Amended and Restated Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit “D” 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 Amended and Restated Agreement provided such change does not:
(a) Alter the permitted uses of the Acacia Property as a whole; or, (b) Increase the density or intensity of use of the Acacia 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 Acacia 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 Amended and Restated Agreement, the following Subsequent Land Use Regulations shall apply to the development of the Acacia 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.
86 60410144.1/200475.0009
(c) Regulations, policies, and rules governing construction standards and specifications including, without limitation, the CITY’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations imposing Developmen t Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the Acacia Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a de fined area of benefit which includes the Acacia Property. No such subsequently adopted Development Exaction shall apply if its application to the Acacia Property would physically prevent development of the Acacia 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 Amended and Restated Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Amended and Restated Agreement to the extent such fees fulfill the same purposes.
(e) Regulations which may be in conflict with the Developm ent 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 Amended and Restated 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 Acacia Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the Acacia Property.

3.6.2 Subsequent Development Approvals . This Amended and Restated 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 Amended and Restated Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Re gulations 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 Amended an d Restated Agreement, prevent or preclude compliance with one or more of the provisions of this Amended and Restated Agreement, such provisions of this Amended and Restated Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Amended and Restated 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 rende r such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more 87 60410144.1/200475.0009
provisions of this Amended and Restated Agreement, and the CITY does not agree, th e OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non - monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief ( or other similar non-monetary relief).

3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Amended and Restated 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 Amended and Restated 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 w ork 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 an d 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 Amended and Restated 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 Acacia P roject, and then only in accordance with valid conditions imposed by the CITY upon the development of the Acacia 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 Acacia Property separately from or jointly with CITY and this Amended and Restated Agreement does not limit the authority of such other p ublic agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY. 88 60410144.1/200475.0009

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

3.11 Vesting Tentative Maps . If any tentative or final subdivision map, or tentative or final parcel map, heretofore or hereafter approved in connection with development of the Acacia Property, is a vesting map under the Subdivision Map Act (Government Code Section 66410 et seq.) and if this Amended and Restated 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 Amended and Restated Agreement. Except as set forth immediately above, development of the Acacia Property shall occur only as provided in this Amended and Restated Agreement, and the provisions in this Amended and Restated Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.

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

3.13 Effect of Original DA on Remaining Original DA Property. The Original DA shall remain effective and binding as to the Remaining Original DA Property. Without limiting the foregoing, the owner of the Remaining Original DA Property shall remain obliged to fulfill the public benefit obligations set forth in Section 4 of the Original DA, undiminished by the payment of p ublic benefit obligations under this Amended and Restated Agreement and/or under the NP Santa Ana Amended and Restated Agreement.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Acacia Property will result in subs tantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Amended and Restated 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 Acacia Project.

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4.2 Development Impact Fees.

4.2.1 Amount and Components of Fee(s). Development Impact Fees shall be paid by OWNER. The Development Impact Fees to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Amended and Restated Agree ment 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 Amended and Restated Agreement shall affect the 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 req uired pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permits. No fees shall be payable for building permits issued prior to the Effective Date of this Amended and Restated Agreement, but the fees required pursuant to S ubsection 4.2.1 shall be paid prior to the re-issuance or extension of any building permit for which such fees have not previously been paid.

4.2.3 Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.2.1 for the dedication of land, the construction of improvements or the payment of fees.

4.3 Public Benefit Fee . Prior to the issuance of the Building Permit for any building on the Acacia Property, as consideration for the privileges conferred by this Amended and Restated Agreement, OWNER shall pay to the CITY a public benefit fee totaling $440,839. Prior to issuance of a Certificate of Occupancy for a building on the Acacia Property, as consideration for the privileges conferred by this Amended and Restated Agreement, OWNER shall pay to CITY an additional one-time public benefit fee totaling $440,839 (for a total public benefit fee payment in the amount of $881,678).

4.4 Public Benefit Fee Advance and Reimbursement . If prior to a Final Certificate of Occupancy for a building east on the Acacia Property, CITY has not issued a building permit for the development of a portion of the North Palisades Property in accordance with the Development Plan, OWNER shall advance the sum of $618,322 to the CITY. CITY shall refund to OWNER the amount of $618,322 within thirty (30) days following CITY’s issuance of a building permit for the development of a portion of the North Palisades Property in accordance with the Development Plan.

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 to finance such reimbursements, OWNER may be reimbursed to the extent that OWNER spends funds 90 60410144.1/200475.0009
or dedicates land for the establishment of public facilities. Notwithstanding the foregoing, nothing contained in this Amended and Restated Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic Review . The Planning Director shall review this Amended and Restated Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by OWNER with the terms of the Amended and Restated Agreement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the Planning Director, within thirty (30) days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied b y an annual review and administration fee sufficient to defray the estimated costs of review and administration of this Amended and Restated Agreement during the succeeding year.

The amount of the annual review and administration fee shall be set annually or as deemed necessary by resolution of the City Council.

6.2 Special Review. The City Council may order a special review of compliance with this Amended and Restated Agreement at any time. The Planning Director shall conduct such special reviews.

6.3 Procedure.
(a) During either a periodic review or a special review, OWNER shall be required to demonstrate good faith compliance with the terms of this Amended and Restated Agreement. The burden of proof on this issue shall be on OWNER. (b) Upon completion of a periodic review or a special review, the Planning Director shall submit a report to the City Council setting forth the evidence concerning good faith compliance by OWNER with the terms of this Amended and Restated Agreement and his or her recommended finding on that issue. (c) If the City Council finds on the basis of substantial evidence that OWNER has complied in good faith with the terms and conditions of this Amended and Restated Agreement, the review shall be concluded.
(d) If the City Council makes a preliminary finding that OWNER has not complied in good faith with the terms and conditions of this Amended and Restated Agreement, the Council may modify or terminate this Amended and Restated Agreement as provided in Section 6.4 and Section 6.5. No tice of default as provided under Section

7.4 of this Amended and Restated Agreement shall be given to OWNER prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.

6.4 Proceedings Upon Modification or Termination . If, upon a finding un der Section 6.3, CITY determines to proceed with modification or termination of this Amended and Restated Agreement, CITY shall give written notice to OWNER of its intention to do so. The notice shall be given at least ten calendar days prior to the schedu led hearing and shall contain:
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(a) The time and place of the hearing;
(b) A statement as to whether CITY proposes to terminate or to modify this Amended and Restated Agreement; and,
(c) Such other information as is reasonably necessary to inform OWNER of the nature of the proceeding.

6.5 Hearing on Modification or Termination . At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard.

OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Amended and Restated 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 this Amended and Restated Agreement, the City Council may terminate this Amended and Restated Agreement or modify this Amended and Restated Agreement to impose such conditions as are reasonably necessary to obtain compliance with the terms of this Amende d and Restated Agreement. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Amended and Restated Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“ Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Amended and Restated Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain informa tion necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder.

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

7. DEFAULT AND REMEDIES.

7.1 Remedies in General . It is acknowledged by the parties that CITY would not have entered into this Amended and Restated Agreement if it were to b e liable in damages under this Amended and Restated Agreement, or with respect to this Amended and Restated 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 Amended and Restated 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 92 60410144.1/200475.0009
claim any damages against CITY or it s agents, employees, officers, attorneys, and representatives:
(a) For any breach of this Amended and Restated Agreement or for any cause of action which arises out of this Amended and Restated Agreement; or (b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Amended and Restated 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 Amended and Restated Agreement.

7.2 Specific Performance. Except as set forth in Section 3.3, above, the parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Amended and Restated Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 7.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Acacia Property to its natural condition once implementation of this Amended and Restated Agreement has begun. After such implementation, OWNER may be foreclosed from other ch oices it may have had to utilize the Acacia Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Acacia Project in agreeing to the terms of this Amended and Restated Agreement and will be investing even more significant time and resources in implementing the Acacia Project in reliance upon the terms of this Amended and Restated Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

7.3 Release. Except for non-damage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Amended and Restate d Agreement or because of the terms of this Amended and Restated Agreement.

7.4 Termination or Modification of Amended and Restated Agreement for Default of OWNER. Subject to the provisions contained in Subsection 6.5 herein, CITY may terminate or modify t his Amended and Restated Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Amended and 93 60410144.1/200475.0009
Restated Agreement, or to comply in good faith with the terms of this Amended and Restated Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Amended and Restated 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 p eriod but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

7.5 Termination of Amended and Restated Agree ment for Default of CITY .

OWNER may terminate this Amended and Restated Agreement only in the event of a default by CITY in the performance of a material term of this Amended and Restated 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 o r, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8. THIRD PARTY LITIGATION.

8.1 General Plan Litigation . CITY has determined that this Amended and Restated Agreement is consistent with the 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 Amended and Restated Agreement for any failure of CITY to perform under this Amended and Restated Agreement or the inability of OWNER to develop the Acacia Property as contemplated by the Development Plan of this Amended and Restated 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.

8.2 Third Party Litigation Concerning Amended and Restated Agreement .

OWNER shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any c laim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Amended and Restated Agreement or the approval of any permit granted pursuant to this Amended and Restated 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 the reafter 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.
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8.3 Indemnity. In addition to the provisions of 8.2 above, OWNER shall indemnify and hold CI TY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including r easonable attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions.

CITY may in its discretion participate in the defense of any such legal action.

8.4 Environmental As surances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Acacia Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including reasonable attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

8.5 Reservation of Rights . With respect to Sections 8.2, 8.3 and 8.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including reasonable attorneys’ fees, upon billing and accounting therefor.

8.6 Survival. The provis ions of this Sections 8.1 through 8.6, inclusive, shall survive the termination of this Amended and Restated Agreement.

9. MORTGAGEE PROTECTION.

9.1 Encumbrances. The parties hereto agree that this Amended and Restated Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Acacia 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 Acacia Property. CITY a cknowledges that the lenders providing such financing may require certain Amended and Restated Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in go od 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 th is Amended and Restated 95 60410144.1/200475.0009
Agreement. Any Mortgagee of the Acacia Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Amended and Restated Agreement nor a breach of this Amended and Restated Agreement shall defea t, render invalid, diminish or impair the lien of any mortgage on the Acacia 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 Acacia 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 Amended and Restated 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 Amended and Restated 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 Amended and Restated Agreement.
(d) Any Mortgagee who comes into possession of the Acacia 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 Acacia Property, or part thereof, subject to the terms of this Amended and Restated Agreement. Notwithstanding any other provision of this Amended and Restated Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Amended and Restated 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 Amended and Restated Agreement.

9.2. Deposit of Legal Defense Costs. In the event of any litigation or legal challenge filed against CITY as described in this Section 9, then within twenty (20) calendar days following written demand by CITY therefor, Owner shall deposit with CITY funds into a deposit account maintained by CITY (“ Fund”) to reimburse CITY for CITY’s costs and expenses, including without limitation attorney’s fees, ultimately incurred by CITY to defend any such claim, action, or proceeding. The initial deposit shall be the sum of fifty thousand dollars ($50,000). The Fund, once established, shall at all times contain an amount necessary to cover not less than three (3) months of budgeted or anticipated expenditures by CITY relating to CITY’s defense of such claim, action, or proceeding , including any and all appeals from decisions related thereto, as such budgeted or anticipated expenditures are determined by CITY in its sole and absolute discretion. For such purposes, CITY may from time to time, in CITY’s sole and absolute discretion, make written demand upon Owner for deposit of additional funds by Owner into the Fund, in 96 60410144.1/200475.0009
which event Owner shall deposit such additional funds into the Fund within twenty (20) calendar days following written demand by CITY.

10. MISCELLANEOUS PROVISIONS.

10.1 Recordation of Amended and Restated Agreement . This Amended and Restated Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. If the parties to this Amended and Restated Agreement or their successors in interest amend or cancel this Amended and Restated Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifie s the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Amended and Restated Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

10.2 Entire Agreement. This Amended and Restated Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillar y 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 d etermine the terms or conditions of this Amended and Restated Agreement.

10.3 Severability. If any term, provision, covenant or condition of this Amended and Restated Agreement shall be determined invalid, void or unenforceable, the remainder of this Amended and Restated 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 Amended and Restated Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Amended and Restated Agreement, including the payment of the fees set forth therein, are essential elements of this Amended and Restated Agreement and CITY would not have entered into this Amended and Restated Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Amended and Restated Agreement shall be null and void and of no force and effect whatsoever.

10.4 Governing Law; Interpretation . This Amended and Restated Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Amended and Restated 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 Amended and Restated Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.
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10.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Amended and Restated Agreement.

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

10.7 Joint and Several Obligations. If at any time during the term of this Amended and Restated Agreement the Acacia Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Amended and Restated Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners. Notwiths tanding 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 Amended and Restated Agreement except as provided under Section 4 hereof.

10.8 Time of Essence . Time is of the essence in the performance of the provisions of this Amended and Restated Agreement as to which time is an element.

10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Amended and Restated 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 Amended and Restated Agreement thereafter.

10.10 No Third Party Beneficiaries . This Amended and Restated 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 Amended and Restated Agreement.

10.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations un der this Amended and Restated 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 Amended and Restated 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 Amended and Restated Agreement shall not be extended under any circumstances for more than five (5) years.

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

10.13 Successors in Interest . The burdens of this Amended and Restated Agreement shall be binding upon, and the benefits of this Amended and Restated 98 60410144.1/200475.0009
Agreement shall inure to, all successors in interest to the parties to this Amended and Restated Agreement. All provisions of this Ame nded and Restated 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 Acacia Property: (a) is for the benefit of and is a burden upon every portion of the Acacia Property; (b) runs with the Acacia Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Acacia Property or any portion thereof.

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

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

10.16 Acacia Project as a Private Undertaking . It is specifically understood and agreed by and between the parties hereto that the development of the Acacia 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 inde pendent contracting entity with respect to the terms, covenants and conditions contained in this Amended and Restated Agreement.

No partnership, joint venture or other association of any kind is formed by this Amended and Restated Agreement. The only relat ionship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

10.17 Further Actions and Instruments . Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Amended and Restated Agreement and the satisfaction of the conditions of this Amended and Restated Agreement. Upon the request of either party at any time, th e 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 Amended and Restated Agreem ent to carry out the intent and to fulfill the provisions of this Amended and Restated Agreement or to evidence or consummate the transactions contemplated by this Amended and Restated Agreement.

10.18 Eminent Domain. No provision of this Amended and Rest ated Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

10.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint ve nture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, 99 60410144.1/200475.0009
then in any such event, OWNER shall file with the Planning Director, upon its execution of this Amended and Restated Agreement, a designa tion 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 Amended and Restated Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

10.20 Estoppel Certificate . Within th irty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Amended and Restated Agreement is unmodified and in full force and effe ct or there have been specified (date and nature) modifications to the Amended and Restated Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Amended and Restated Agreemen t or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Amended and Restated Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’s issuance of such certificates.

10.21 Authority to Execute. The person or persons exe cuting this Amended and Restated Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Amended and Restated 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 Amended and Restated Agreement on the last day and year set forth below.

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OWNER

ACACIA REAL ESTATE GROUP, INC.,
a California corporation

By:

David Pittman
Its: President

Dated:

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ACKNOWLEDGMENT

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

State of California
County of )

On before me,
______________________________
_______
(insert name and title of the
officer)

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

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

WITNESS my hand and official seal.

Signature _________________________________ (Seal)

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CITY:

CITY OF FONTANA, a California
municipal corporation

By:_____________________________
Acquanetta Warren, Mayor

Dated: __________________

By: ____________________________
Matthew C. Ballantyne, City Manager

ATTEST:

By:_____________________________
Germaine Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

________________________________
City Attorney
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ACKNOWLEDGMENT

State of California
County of )

On before me,
______________________________
_______
(insert name and title of the
officer)

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

WITNESS my hand and official seal.

Signature _________________________________ (Seal)

5703203.2
27967-940

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EXHIBIT “A-1”

LEGAL DESCRIPTION OF THE PROPERTY

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EXHIBIT “A-2”

LEGAL DESCRIPTION OF THE ACACIA PROPERTY

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EXHIBIT “A-3”

LEGAL DESCRIPTION OF THE NORTH PALISADES PROPERTY

107

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EXHIBIT “A-4”

LEGAL DESCRIPTION OF THE REMAINING ORIGINAL DA PROPERTY

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EXHIBIT “B”

MAP SHOWING PROPERTY AND ITS LOCATION

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EXHIBIT “C”

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

[SEE FOLLOWING PAGES]

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Recording Requested by and
When Recorded Return To:

_____________________
_____________________
_____________________
_____________________

_____________________________________________________________________ (Space above this line for recorder's use only)
DOCUMENTARY TRANSFER TAX: $-0- (No consideration)

PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT (the
“Agreement”) is made and entered into as of ____________ _, 202_, by and between ___________________ (“ Assignor”) and ___________________ (“Assignee”) having an address at ______________________________, with reference to the following recitals.

RECITALS

A. Assignor was the owner of approximately ____ gross acres of land area located in the City of Fontana, County of San Bernardino, State of California, more particularly described in Exhibit “A” attached hereto (“Project Site”).

B. Assignor and the City of Fontana, a California municipal corporation (“City”), are parties to that certain “First Amendment and Restatement of Development Agreement No. 23-085, Applicable to the _________ Property”, dated ______________ (the “Development Agreement”), relating to the development of the Project Site (the “Project”). The Development Agreement is recorded as instrument _________________ in San Bernardino County Official Records.

C. Assignor has transferred a portion of the Project Site, generally described as ____________________ and more particularly described in Exhibit “B ” attached hereto (the “Assigned Property”) to Assignee in accordance with the terms of a grant deed and (iv) retained ownership of the remainder of the Project Site, consisting of _____________________ (the “Retained Property”). [NTD: IF THE ASSIGNMENT

IS A FULL ASSIGNMENT, THEN PROVISIONS RELATING TO RETAINED OBLIGATIONS WILL BE REMOVED]
D. In accordance with Section 2.4 of the Development Agreement, Assignor desires to assign all rights and obligations of Assignor under the Development Agreement as to the Assigned Property (“Assigned Property Rights and Obligations”) 111

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and (ii) retain, as the owner of the Retained Property, all remaining obligations under the Development Agreement (the “Retained Property Rights and Obligations”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1. Effective Date. This Agreement shall not be deemed to be effective unless and until the transfer of title to the Assigned Property from Assignor to Assignee occurs, as evidenced by the recordation of a grant deed in the San Bernardino County Official Records conveying the Assigned from Assignor to Assignee (the date of recordation of such grant deed, the “Effective Date”).

2. Assignment of Development Agreement. Assignor does hereby sell, transfer, assign, convey and deliver to Assignee all of Assignor's rights, title, obligations, and interests in the Assigned Property Rights and Obligations. This Agreement is only intended to assign the Assigned Property Rights and Obligations and does not assign any other rights or obligations under the Development Agreement. Assignor makes no representation or warranties, express or implied, to Assignee concerning the Development Agreement, except as provided herein.

3. Assumption of Responsibilities. Assignee hereby assumes, as of the Effective Date, the Assigned Property Rights and Obligations and agrees to observe and fully perform all of the duties and obligations of Assignor under the Development Agreement with respect to the Assigned Property Rights and Obligations and to be subject to all of the terms and conditions of the Development Agreement with respect to the Assigned Property Rights and Obligations, in each case to the extent arising on or after the Effective Date. Assignor and Assignee acknowledge and agree that, from and after the Effective Date, Assignee shall be the “Owner” under the Development Agreement with respect to the Assigned Property and the Assigned Property Rights and Obligations.

4. Amendments. Any amendments or modifications to this Agreement must be in writing, signed by duly authorized representatives of each of the parties hereto, acknowledged and approved by the City, and recorded in the Official Records for San Bernardino County, California.

5. Governing Law; Venue. This Agreement and the legal relations of the parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its principles of conflicts of law. All rights and obligations of the Parties under this Assignment are to be performed in the City of Fontana, and the County of San Bernardino shall be the venue for any legal action or proceeding that may be brought, or arise out of, in connection with or by reason of this Agreement. 112

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6. Severability. Any provision of this Agreement which shall prove to be invalid, void, or illegal shall in no way affect, impair, or invalidate any other provision hereof and such other provisions shall remain in full force and effect.

7. Further Assurances. Each party shall execute and deliver such other certificates, agreements and documents and take such other actions as may be reasonably required to consummate or implement the transactions contemplated by this Agreement provided the same does n ot increase such party’s obligations and liabilities or reduce such party’s rights under this Agreement and/or the Development Agreement other than to a de minimis extent.

8. Authority of Signatories to Bind Principals. The persons executing this Agreement on behalf of their respective principals represent that (i) they have been authorized to do so and that they thereby bind the principals to the terms and conditions of this Agreement and (ii) their respective principals are properly and duly organized and existing under the laws of __________, and are permitted to do business in, the State of California.

9. No Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof.

10. Interpretation. The parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both parties, and the parties agree that since both have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it.

11. Recordation. Assignor and Assignee shall record this Agreement against the Assigned Property in the Official Records contemporaneously with the recordation of the instrument conveying title to the Assigned Property to Assignee and prior to the lien of any security interest that will encumber the Assigned Property after the conveyance.

12. Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which counterparts taken together shall constitute but one and the same instrument. [SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date set forth above.

“Assignor”

______________________________
a _________ limited liability company

By: _______________________________
Name: ____________________________
Title: ______________________________
“Assignee”

______________________________
a ___________ limited liability company

By: _______________________________
Name: ____________________________
Title: ______________________________
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EXHIBIT “A”

Project Site Legal Description

115

ATTACHMENT NO. 1

Page 50 of 51 ends

EXHIBIT “B”

Assigned Property Legal Description

116

EXHIBIT “D”

SUBSEQUENT DEVELOPMENT APPROVALS INTEGRATED INTO VESTED RIGHTS UNDER SECTION 3.5

117
City of Fontana
Action Report
City Council Meeting
8437 Sierra Avenue
Fontana, CA 92335
File #: 26-1051 Agenda Date: 6/9/2026
Agenda #: F. Category: Consent Calendar
FROM:

City Clerk
SUBJECT:

Adoption of Ordinance No. 1992 (Second Reading), Approving Development Agreement No 23- 0085R2, as to Assessor’s Parcel Numbers 0255-011-13, 0255-011-14, 0255-011-18, 0255-011-19 AND 0255-011-25 thru 0255-011-32.

RECOMMENDATION:

Conduct a second reading by title only and adopt, Ordinance No. 1992, Approving Development Agreement No 23-0085R2, as to Assessor’sParcel Numbers 0255-011-13, 0255-011-14, 0255-011- 18, 0255-011-19 AND 0255-011-25 thru 0255-011-32
..End
COUCIL GOALS:
· Promote economic development by pursuing business attraction, retention, and expansion. · Promote economic development by being business friendly at all levels and striving to constantly improve the city's competitiveness.

DISCUSSION:

Ordinance No. 1992 was introduced by a vote of 4-1 at the May 26, 2026, Regular City Council Meeting.

FISCAL IMPACT:

There is no direct fiscal impact from this item.

MOTION:

Approve staff recommendation.

City of Fontana Printed on 6/2/2026Page 1 of 1
powered by Legistar™
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ATTACHMENT NO. 2
ORDINANCE NO. 1992

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF

FONTANA, CALIFORNIA, APPROVING DEVELOPMENT
AGREEMENT NO. 23 -0085R2, AS TO ASSESSOR’S PARCEL
NUMBERS 0255 -011-13, 0255-011-14, 0255 -011-18, 0255 -011-19 AND 0255 -011-25 THRU 0255 -011-32, MAKING ASSOCIATED

CALIFORNIA ENVIRONMENTAL QUALITY ACT FINDINGS, AND
TO DIRECTING STAFF TO FILE A NOTICE OF EXEMPTION.

WHEREAS, in October 2025, the Fontana Planning Commission (Planning Commission) considered and approved Design Review 22-062-R2, to reduce the size of one of the industrial commerce center build ings (originally approved in Design Review 22-062) from 193,462 square feet to approximately 83,632 square feet, and to reduce the size of that property from 8.7 acres to 4.6 acres; and

WHEREAS, Resolution No 25-040 approving Design Review 22-062-R2 requires two separate amendments to the DA – one for Assessor’s Parcel Number 0255 -021-17 (Acacia Property) and one for the Assessor’s Parcel Numbers 0255 -011-13, 0255-011- 14, 0255 -011-18, 0255 -011-19 and 0255 -011-25 thru 0255 -011-32 (North Palisades Property) – to accomplish the following: (1) require the cumulative payment of public benefit fees of not less than $4,300,000 – half due at building permit and half due a certificate of occupancy – with the Acacia Property responsible for $881,678 and the North Palisades Property responsible for $3,418,322; (2) update the vested entitlements under the DA amendment for the Acacia Property to include Design Review 22 -062-R2; (3) require the parties executing the DA amendments to warrant and represent that they are the legal or equitable owners of the property; (4) require that the DA amendments be recorded in the Office of the San Bernardino County recorder within thirty days after City Council approval; (5) prohibit either DA amendment from taking effect unless both DA amendments take effect; and (6) rescind the 22-062-R2 design review approval if both of the DA amendments are not timely recorded; and
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WHEREAS, consistent with Planning Commission direction, City staff together with representatives of the future owners of the North Palisades Property negotiated and prepared a DA amendment that, together with a separately negotiated and concurrently presented DA amendment for the Acacia Property, accomplishes the intent and direction provided in Planning Commission Resolution No. 25-040.

WHEREAS, on April 21, 2026, the Planning Commission held a public meeting on AGR No. 23-0085R2 where it received evidence and public testimony on the North Palisades DA Amendment and unanimously recommended in Resolution No. PC 2026-017 that the Fontana City Council (City Council) (1) determine that the North Palisades DA Amendment is categorically exempt from the California Environmental Quality Act (CEQA) pursuant to CEQA Guidelines Sections 15060(c), 15061(B)(3) (the common - sense exemption), and 15378 and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effect on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment; (2) determine that the North Palisades DA Amendment together with the underlying project were adequately analyzed in the previously certified Citrus and Oleander Avenue at Santa Ana Avenue Project Environmental Impact Report (EIR) (State Clearinghouse No. 2022110389) and its subsequent Addendum, and pursuant to CEQA Guidelines Section 15162, no subsequent or supplemental EIR is required because there are no substantial changes in the project or its circumstances, and no new information of substantial importance has been identified that would result in any new or more severe significant environmental impacts; and (3) adopt an ordinance approving the North Palisades DA Amendment.

WHEREAS, on April 10, 2026, notice of the May 26, 2026 , City Council public hearing for the North Palisades DA amendment was published in the Sun Newspaper and was posted at designated City bulletin boards; and

WHEREAS, on May 26, 2026, the City Council held a public hearing on the North Palisades DA Amendment where the City Council received evidence and public testimony pertaining to the Amendment and documentation from the Planning Commission’s public hearing on April 21, 2026; and

WHEREAS, the City Council carefully considered all information pertaining to the North Palisades DA Amendment, including the staff report, Planning Commission recommendations, findings, and all the information, evidence, and testimony presented at its public hearing on May 26, 2026,

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

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

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

Section 2. Compliance with the California Environmental Quality Act . The City Council has reviewed and considered the North Palisades DA Amendment and finds and determines that the amendment is categorically exempt from the CEQA pursuant to CEQA Guidelines Sections 15060(c), 15061(B)(3) (the common -sense exemption), and 15378 and Sections No. 3.01, 3.22, and 10.59 of the 2019 Local Guidelines for Implementing CEQA, in that the activity is covered by the general rule that CEQA applies only to projects which have the potential for causing a significant effec t on the environment where it can be with certainty that there is no possibility that the activity in question may have a significant effect on the environment; and Section 3. Additional Basis for Compliance with the California Environmental Quality Act. Based on the substantial evidence set forth in the record, including but not limited to, the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR and the subsequent Addendum thereto, and all related information presented to the City Council, the City Council finds and determines pursuant to State CEQA sections 15162 and 15164 and Section 8.06 of the City of Fontana’s 2019 Local Guidelines for Implementing CEQA that the preparation of a subsequent or supplemental EIR is not required because the project:

A. Will not result in substantial changes that would require major revisions of the Citrus and Oleander Avenue at Santa Ana Avenue Project EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and

(i) The modified project would have one or more significant effects not discussed in the EIR;

(ii) That significant effects previously examined would be substantially more severe than shown in the EIR;
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Section 4. Approval of North Palisades DA Amendment. The North Palisades DA Amendment, attached hereto as Exhibit “A”, is hereby approved and the Mayor is hereby authorized to execute the North Palisades DA Amendment on behalf of the City. The City Manager, or his or her designee, is directed and authorized to do all of the following:
(i) Prepare a final version of the North Palisades DA Amendment for execution and recording that fully reflects the action of the City Council in adopting the North Palisades DA Amendment, subject to review and approval of the City Attorney; and

(ii) Make all necessary and appropriate clerical, typographical, formatting, and non -substantial corrections or revisions to the adopted North Palisades DA Amendment prior to execution and recording; and

(iii) Implement the North Palisades DA Amendment in accordance with its terms.

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

Ordinance No. 1992
5 of 5

APPROVED AND ADOPTED this 9th day of June 2026.

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
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“EXHIBIT A”

NORTH PALISADES DA AMENDMENT

DEVELOPMENT AGREEMENT 23-0085R2

FIRST AMENDMENT TO AND RESTATEMENT OF DEVELOPMENT AGREEMENT NO. 23-085, APPLICABLETO THE NORTH PALISADES PROPERTY

AN AMENDED AND RESTATED DEVELOPMENT AGREEMENT BETWEEN

CITY OF FONTANA
a California Municipal Corporation

and

NORTH PALISADE PARTNERS, LLC

ATTACHMENT NO. 5
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DEVELOPMENT AGREEMENT NO. 23-0085R2
This First Amendment to and Restatement of Development Agreement 23-085, Applicable to the North Palisades Property (hereinafter “ Amended and Restated Agreement”) is entered into effective on _______ (hereinafter the “ Effective Date”) by and among the City of Fontana, a California municipal corporation (hereinafter, “CITY”), and North Palisade Partners, LLC , a Delaware Limited Liability Company. (hereinafter, “OWNER”):

60410144.1/200475.0009
Records of San Bernardino County on December 18, 2023, as document number 2023- 0311188; and
WHEREAS, subsequent to the execution of the Original DA, Acacia desired to limit the scope of its development to the Acacia Property (“Acacia Project”), and to enter into a separate amendment to and restatement of the O riginal DA (“Acacia Amended and Restated Agreement”), as applicable only to the Acacia Property; and WHEREAS, in connection with revising its development plans, Acacia determined that it no longer requires the remaining parcels of the Property outside th e Acacia Property for the purposes of its current project; and
WHEREAS, OWNER has acquired the North Palisades Property for development of the portion of the Project planned for the North Palisades Property (“North Palisades Project”), and in connection t herewith desires to enter into this Amended and Restated Agreement, as applicable only to the North Palisades Property; and WHEREAS, by electing to enter into this Amended and Restated Agreement, CITY shall bind future City Councils of CITY by the obligati ons specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Amended and Restated 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 Amended and Restated Agreement; and
WHEREAS, prior to the adoption of the D evelopment Approvals described in this Amended and Restated Agreement, the City Council reviewed, considered, and certified the Environmental Impact Report (“ EIR”) for the Citrus/Oleander Industrial Center of which the Project, as that term is defined below, is a part, and made findings concerning the mitigation measures for the Project, and adopted a Mitigation Monitoring and Reporting Program in accordance with CEQA and the State and CITY CEQA Guidelines; and
WHEREAS, this Amended and Restated Agreement a nd 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 requireme nts for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Amended and Restated Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
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WHEREAS, this Amended and Restated Agreement will eliminate uncertainty in planning and provide for the orderly development of the North Palisades Property, ensure progressive installation of necessary improvements, provide for public services appropriate to the development of the North Palisades 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 futur e incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the North Palisades Property in accordance with this Amended and Restated Agreement.

1. DEFINITIONS AND EXHIBITS.

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

1.1.1. “Acacia Amended and Restated Agreement ” means an amendment to and restatement of the Original DA, entered into by and between the CITY and the fee owner of the Acacia Property, which shall be applicable to and binding upon the fee owner of the Acacia Property and its successors in interest.

1.1.2. “Acacia Project ” the development of the Acacia Property contemplated by the Development Plan as such Plan may b e further defined, enhanced or modified pursuant to the provisions of the Acacia Amended and Restated Agreement.

1.1.3. “Acacia Property” means APN 0255-021-17, which is located north of Santa Ana Avenue, east of Oleander Avenue, and west of Cypress Avenue, as shown on Exhibit “A-2”.

1.1.4. “Amended and Restated Agreement” means this First Amendment to and Restatement of Development Agreement No. 23-085.

1.1.5. “APN(s)” means assessor’s parcel numbers as used by the San Bernardino County Clerk/Recorder.

1.1.6. “Certificate” has the meaning assigned to that term in Section 6.6.

1.1.7. “CITY” means the City of Fontana, a municipal corporation, organized and existing pursuant to the laws of the State of California. 127

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1.1.8. “City Council” means the City Council of the City of Fontana, California.

1.1.9. “Development” means the improvement of the North Palisades Property for the purposes of completing the structures, improvements and facilities comprising the North Palisades Project including, but not limited to: grading; the construction of infrast ructure and public facilities related to the North Palisades Project whether located within or outside the North Palisades Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maint enance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

1.1.10. “Development Approvals ” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the North Palisades Property including, but not limited to:
(a) conditional use permits and design review permits;
(b) tentative parcel maps;
(c) General Plan and Zoning Code amendments; and,
(d) grading, encroachment and building permits.

1.1.11. “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.

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

1.1.13. “Development Plan ” means the Existing Development Approvals and the Existing Land Use Regulations, as those terms are defined herein, applicable to development of the Property.
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1.1.14. “Effective Date” means the date upon which all of the following have occurred: (1) the ordinance approving this Amended and Restated Agreement becomes effective, (2) the ordinance approving the Acacia Amended and Restated Agreement becomes effective, (3) the Acacia Amended and Restated Agreement has been executed by the fee owner of the Acacia Property and delivered to the CITY within one hundred twenty (120) days following the approval (second reading) of the ordinance approving the Acacia Amended and Restated Agreement; and (4) this Amended and R estated Agreement has been executed by the fee owner of the North Palisades Property and delivered to the CITY within the later of (a) one hundred twenty (120) days following the close of escrow for acquisition of the North Palisades Property by OWNER and (b) one hundred twenty (120) days following the entitlements for the North Palisades Property becoming final and non -appealable (and in no event more than 210 days following the City’s grant of entitlements for the North Palisades Property).

1.1.15. “EIR” means th e Environmental Impact Report for the Citrus/Oleander Industrial Center as certified by the City Council, designated as State Clearinghouse number 2022110389.

1.1.16. “Existing Development Approvals ” means all Development Approvals approved or issued on or prior to the Effective Date.

1.1.17. “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effective Date.

1.1.18. “Fund” has the meaning assigned to that term in Section 9.2.

1.1.19. “General Plan” means the Comprehensive General Plan of the City of Fontana, as such General Plan existed as of the Effective Date of this Amended and Restated Agreement.

1.1.20. “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of proposed buildings, the provisions for reservation or dedication of land for pu blic purposes, and the design, improvement and construction standards and specifications applicable to the development of the North Palisades Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or offici al 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; 129

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(e) the exercise of the power of eminent domain.

1.1.21. “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.

1.1.22. “North Palisades Project” the development of the North Palisades Property contemplated by the Development Plan as such Plan may be further defined, enhanced or modified pursuant to the provisions of this Amended and Restated Agreement.

1.1.23. “North Palisades Property” means APNs 0255-011-13, 0255-011- 14, 0255-011-18, 0255-011-19 and 0255 -011-25 thru 0255 -011-32, which are located north of Santa Ana Avenue, east of Citrus Avenue, and west of Oleander Avenue, as shown on Exhibit “A-3”.

1.1.24. “OWNER” means the persons and en tities listed as OWNER on page 1 of this Amended and Restated Agreement and their successors in interest to all or any part of the North Palisades Property.

1.1.25. “Project” means the development of the Property contemplated by the Development Plan as such Plan m ay be further defined, enhanced or modified pursuant to the provisions of this Amended and Restated Agreement.

1.1.26. “Property” means the real property described on Exhibit “A-1” as shown on to this Amended and Restated Agreement.

1.1.27. “Public Benefit Fee ” means the public benefit fee to be paid by OWNER as described in Section 4.3 of this Amended and Restated Agreement.

1.1.30. “Subsequent Development Approvals ” means all Development Approvals required subsequent to the Effective Date in connection with development of the North Palisades Property.

1.1.31. “Subsequent Land Use Regulations ” means an y Land Use Regulations adopted and effective after the Effective Date of this Amended and Restated Agreement.

1.1.32. “Term” has the meaning assigned to that term in Section 2.3. 130

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

Exhibit “A-1” — Legal Description the Property.

Exhibit “A-2” — Legal Description the Acacia Property.

Exhibit “A-3” — Legal Description the North Palisades Property.

Exhibit “A-4” — Legal Description of Remaining Original DA Property Exhibit “B” — Map showing Property and its location.

Exhibit “C” – Form of Assignment and Assumption Agreement Exhibit “D” – Subsequent Development Approvals Integrated Into Vested Rights under Section 3.5

2. GENERAL PROVISIONS.

2.1 Binding Effect of Original DA.
(a) Upon the occurrence of the Effective Date, the North Palisades Property shall be subject to this Amended and Restated Agreement. OWNER agrees and acknowledges that (1) the Original DA shall remain in full force and effect unless and until the Effective Date occurs, and (2) if this Amended and Restated Agreement and/or the Acacia Amended and Restated Agreement are rescinded or invalidated for any reason, the Original DA shall remain binding upon and applicable to the No rth Palisades Property, its owners, and their successors in interest.

(b) Development of the North Palisades Property is hereby authorized and shall be carried out only in accordance with the terms of either this Amended and Restated Agreement (if, and for so long as, this Amended and Restated Agreement is effective and applicable to the North Palisades Property) or the Original DA.

(c) For so long as this Amended and Restated Agreement is effective and applicable to the North Palisades Property, this Amended and Restated Agreement shall supersede the Original DA in its entirety with respect to the North Palisades Property.

(d) For the avoidance of doubt, if either (1) the Acacia Amended and Restated Agreement has not been executed by the fee owner of the Acacia Property within one hundred twenty (120) days following the approval (second reading) of the ordinance approving the Ac acia Amended and Restated Agreement; or (2) this Amended and Restated Agreement has not been executed by fee owner of the North Palisades Property within the later of 131

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(a) one hundred twenty (120) days following the close of escrow for acquisition of the No rth Palisades Property by OWNER and (b) one hundred twenty (120) days following the entitlements for the North Palisades Property becoming final and non -appealable (and in no event more than 210 days following the City’s grant of entitlements for the North Palisades Property), then this Amended and Restated Agreement shall never become effective, and the Original DA shall remain binding upon and applicable to the North Palisades Property, its owners, and their successors in interest.

2.2 Ownership of North Palisades Property. OWNER represents and covenants that it is the legal or equitable owner of the fee simple title to the North Palisades Property.

Prior to CITY’s execution and recordation of this Amended and Restated Agreement, OWNER shall submit to CITY reasonable proof of its fee ownership of the North Palisades Property as determined by CITY in its sole and absolute discretion.

2.3 Term. The initial term of this Amended and Restated Agreement shall commence on the Effective Date and shall continue f or a period of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Amended and Restated Agreement. Notwithstanding the foregoing, the term of this Amended and Restated Agreement may be extended for an addit ional five (5) years following expiration of the initial term, provided the following have occurred:

(a) OWNER provides at least ninety (90) days written notice to CITY prior to the expiration of the initial term; and

(b) OWNER shall have obtained buildi ng permits for at least sixty -seven percent (67%) of the gross area of the industrial building(s) contemplated by the North Palisades Project; and

The initial term and, if and upon extension, the 5 -year extension, shall sometimes be referred to herein collectively as the “Term.”

The term of this Amended and Restated Agreement shall not be considered to run and shall toll for any period in which the North Palisades Project i s being challenged or litigated by a third-party.

2.4 Assignment.

2.4.1 Right to Assign . OWNER shall have the right to sell, transfer or assign the North Palisades Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410 et seq.) to any person, partnership, joint venture, firm or corporation at any time during the term of this Amended and Restated Agreement; provided, however, that any such sale, 132

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transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Amended and Restated Agreement and be made in strict compliance with the following conditions precedent:
(a) No sale, transfer or assignment of any rig ht or interest under this Amended and Restated Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the North Palisades Property. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY, in writing, of such sale, transfer or assignment and shall provide CITY with an executed agreement, in a form substantially similar to that attached hereto as Exhibit “C” which has been deemed reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Amended and Restated Agreement. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Amended and Restated Agreement. Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Amended and Restated Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Amended and Restated Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed.

2.4.2 Release of Transferring Owner . Notwithstanding any sale, transfer or assignment, a transferring owner shall continue to be obligated under this Amended and Restated 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 a ll or any part of the North Palisades Property.
(b) OWNER is not then in default under this Amended and Restated Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

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2.4.4 Partial Release of Purchaser, Transferee or Assignee of Industrial or Commercial Lot. A purchaser, transferee or assignee of a lot within the North Palisades Property, 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 Amended and Restated Agreement relating to all other portions of the North Palisades 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 Amended and Restated Agreement.

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

2.5 Amendment or Cancellation of Amended and Restated Agreement . This Amended and Restated Agreement may be amended or canceled in whole or in part only by written consent of all parties in the manner provided for in Government Code Section 65868 and the Development Agreement Policies. This provision shall not limit any remedy of CITY or OWNER as provided by this Amended and Restated Agreement. Any amendment of this Amended and Restated Agreement which has been requested by OWNER shall only be processed and considered by the CITY upon the payment of the applicable processing charge.

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(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Amended and Restated Agreement (in which case the Original DA shall remain binding upon and applicable to the North Palisades Property, its owners, and their successors in interest). (c) The adoption of a referendum measure overriding or repealing the ordinance approving this Amended and Restated Agreement (in which case the Original DA shall remain binding upon and applicable to the North Palisades Property, its owners, and their successors in interest).
(d) Completion of the North Palisades Project in accordance with the terms of this Amended and Restated Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.
(e) Termination of this Amended and Restated Agreement based on any default of OWNER and following the termination proceedings required by the Development Agreement Policies.

Termination of this Amended and Restated Agreement shall not constitute termination of any other land use entitlements or agreements approved for the North Palisades Property. Upon the termination of this Amended and Restated 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 Amended and Restated Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Amended and Restated Agreement. Upon such termination, any public facili ties and services mitigation fees paid pursuant to Section 4.2 of this Amended and Restated Agreement by OWNER to CITY buildings on which construction has not yet begun shall be refunded to OWNER by CITY.

If to CITY:

City of Fontana
135

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

Copy to:

Best, Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
Attn: City Attorney
Telephone: (909) 989-8584
Facsimile: (909) 944-1441

If to OWNER:

North Palisade Partners, LLC
Attn: Brian Wong
303 N. Glenoaks Blvd., Suite 340
Burbank, CA 91502
Telephone: (310) 242-1612

Copy to:

Allen Matkins Leck Gamble Mallory & Natsis, LLP
Attn: Jonathan Shardlow
2010 Main Street, 8th Floor,
Irvine, CA 92614
Telephone: (949) 553-1313

3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop . Subject to the te rms of this Amended and Restated Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the North Palisades Property in accordance with, and to the extent of, the Development Plan. The North Palisades Project shall re main subject to all Subsequent Development Approvals required to complete the North Palisades Project as contemplated by the Development Plan. Except as otherwise provided in this Amended and Restated Agreement, the permitted uses of the North Palisades 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.
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If the either (1) the Acacia Amended an d Restated Agreement has not been executed by the fee owner of the Acacia Property within one hundred twenty (120) days following the approval (second reading) of the ordinance approving the Acacia Amended and Restated Agreement; or (2) this Amended and Re stated Agreement has not been executed by the fee owner of the North Palisades Property within one hundred twenty (120) days following the approval (second reading) of the ordinance approving this Amended and Restated Agreement, then (A) OWNER shall take no action in furtherance of development of the Project without the CITY’s prior written approval, which CITY may grant or withhold in its sole and absolute discretion, (B) all entitlements and approvals issued for or in connection with the Project shall be deemed automatically rescinded by CITY without further action by the CITY and without any further obligation by the CITY to the OWNER with respect thereto, and shall be null and void and of no further force or effect, and (C) CITY may, in its sole and abso lute discretion, elect to take formal action to rescind any entitlements issued for or in connection with the Project; OWNER expressly waives and releases any and all rights, vested or otherwise, that it may have to object to or interfere with such formal action.

3.2 Effect of Amended and Restated Agreement on 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 Amended and Restated 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 North Palisades Property will be developed. Such decisions depend upon numerous factors which are not w ithin 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 North Palisades Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment, subject only to any timing or phasing requirements set forth in the Development Plan or the Phasing Plan set forth in Section 3.4. Notwithstanding anything to the contrary set forth in this Section 3.3 or in this Amended and Restated Agreement, CITY acknowledges that OWNER shall have no obliga tion to construct the North Palisades Project and that OWNER shall not be subject to any penalty nor shall CITY be entitled to 137

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any legal or equitable remedy, including, without limitation, a claim for specific performance of this Amended and Restated Agree ment, if OWNER determines not to construct the North Palisades Project for any reason.

3.4 Phasing Plan . Development of the North Palisades Property shall be subject to all timing and phasing requirements established by the Development Plan.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the North Palisades Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Amended and Restated Agreement including the Reservations of Authority. If approved, any such change in the Existing Development Approvals shall be incorporated herein as Exhibit “D” 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 a n amendment to this Amended and Restated Agreement provided such change does not:
(a) Alter the permitted uses of the North Palisades Property as a whole; or,
(b) Increase the density or intensity of use of the North Palisades 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 North Palisades Property as a whole; or, (e) Constitute a project requiring a subse quent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

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(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records, hearings, reports, recommendations, appeals and any other matter of procedure.
(c) Regulations, policies, and rules governing construction standards and specifications including, without limitation, the CITY’s Building Code, Plumbing Code, Mechanical Code, Electrical Code, Fire Code and Grading Code. (d) Regulations imposing Development Exactions; provided, however, that no such subsequently adopted Development Exaction shall be applicable to development of the North Palisades Property unless such Development Exaction is applied uniformly to development, either throughout the CITY or within a defined area of benefit which includes the North Palisades Property. No such subsequently adopted Development Exaction shall apply if its application to the North Palisades Property would physically prevent development of the North Palisades 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 Amended and Restated Agreement, CITY shall allow a credit against such subsequently adopted Development Exaction for the fees paid under Section 4 of this Amended and Restated 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 p rovide OWNER with the rights and assurances provided under this Amended and Restated 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 North Palisades Property shall be deemed to conflict with the Development Plan and shall therefore not be applicable to the development of the North Palisades Property.

3.6.2 Subsequent Development Approvals . This Amended and Restated 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 Amended and Restated 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.

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with such State or Federal laws or regulations, provided, however, that this Amended and Restated Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Amended and Restated Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non - monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.6.4 Intent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by cont ract 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 Amended and Restated 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 Amended and Restated 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 interes ts 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 Amended and Restated 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. O WNER 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 OW NER, except to the extent that the OWNER elects to proceed with the development of the North Palisades Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the North Palisades 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 140

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of the development of the North Palisades Property separately from or jointly with CITY and this Amended and Restated Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

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

3.11 Vesting Tentative Maps . If any tentative or final subdivision map, or tentative or final parcel map, heretofore or hereafter approved in connection with development of the North Palisades Property, is a vesting map under the Subdivision Map Act (Government Code Section 66410 et seq.) and if this Amended and Restated Agreement is determined by a final judgment to be invalid or unenforceable insofar as it grants a vested right to de velop 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 Amended and Restated Agreement. Except as set forth immediately above, develop ment of the North Palisades Property shall occur only as provided in this Amended and Restated Agreement, and the provisions in this Amended and Restated Agreement shall be controlling over any conflicting provision of law or ordinance concerning vesting maps.

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

3.13 Effect of Original DA on Remaining Original DA Property. The Original DA shall remain effective and binding as to the Remaining Original DA Property. Without limiting the foregoing, the owner of the Remaining Original DA Property shall remain obliged to fulfill the public benefit obligations set forth in Section 4 of the Original DA, undiminished by the payment o f public benefit obligations under this Amended and Restated Agreement and/or under the Acacia Amended and Restated Agreement.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the North Palisades Property will result in substantial public needs which will not be fully met by the Development Plan and further acknowledge and agree that this Amended and Restated Agreement confers substantial private benefits on OWNER which should be balanced by 141

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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 North Palisades Project.

4.2 Development Impact Fees.

4.2.1 Amount and Components of Fee(s). Development Impact Fees shall be paid by OWNER. The Development Impact Fees to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Amended and R estated Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees.

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

4.2.3 Credits. OWNER shall be entitled to credit against the fees required pursuant to Subsection 4.2.1 for the dedication of land, the construction of improvements or the payment of fees.

4.3 Public Benefit Fee . Prior to the issuance of the Building Permit for any building on the North Palisades Property, as consideration for the privileges conferred by this Amended and Restated Agreement, OWNER shall pay to the CITY a public benefit fee totaling $1,709,161. Prior to issuance of a Certificate of Occupancy for a building on the North Palisades Property, as consideration for the privileges conferred by thi s Amended and Restated Agreement, OWNER shall pay to CITY an additional one -time public benefit fee totaling $1,709,161 (for a total public benefit fee payment in the amount of $3,418,322).

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 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, nothing contained in this Amended and Restated Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds. 142

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6. REVIEW FOR COMPLIANCE.

6.1 Periodic Review . The Planning Director shall review this Amended and Restated Agreement annually, on or before the anniversary of the Effective Date, in order to ascertain the good faith compliance by OWNER with the terms of the Amended and Restated A greement. OWNER shall submit an Annual Monitoring Report, in a form acceptable to the Planning Director, within thirty (30) days after written notice from the Planning Director. The Annual Monitoring Report shall be accompanied by an annual review and admi nistration fee sufficient to defray the estimated costs of review and administration of this Amended and Restated Agreement during the succeeding year.

The amount of the annual review and administration fee shall be set annually or as deemed necessary by resolution of the City Council.

6.2 Special Review. The City Council may order a special review of compliance with this Amended and Restated Agreement at any time. The Planning Director shall conduct such special reviews.

7.4 of this Amended and Restated Agreement shall be given to OWNER prior to or concurrent with, proceedings under Section 6.4 and Section 6.5.

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(b) A statement as to whether CITY proposes to terminate or to modify this Amended and Restated Agreement; and,
(c) Such other information as is reasonably necessary to inform OWNER of the nature of the proceeding.

6.5 Hearing on Modification or Termination . At the time and place set for the hearing on modification or termination, OWNER shall be given an opportunity to be heard.

OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Amended and Restated 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 this Amended and Restated Agreement, the City Council may terminate this Amended and Restated Agreement or modify this Amended and Restated Agreement to impose such conditions as are reasonably necessary to obtain compliance with the terms of this Amended and Restated Agreement. T he decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.6 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Amended and Restated Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“ Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Amended and Restated Agreement remains in effect and (2) OWNER is not in default. The Certificate shall be in recordable form, shall contain information necessary to communica te constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder.

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

7. DEFAULT AND REMEDIES.

7.1 Remedies in General . It is acknowledged by the parties that CITY would not have entered into this Amended and Restated Agreement if it were to be liable in damages under this Amended and Restated Agreement, or with respect to this Amended and Restated Agreement or the application thereof.

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claim any damages against CITY or its agents, employees, office rs, attorneys, and representatives:
(a) For any breach of this Amended and Restated Agreement or for any cause of action which arises out of this Amended and Restated Agreement; or (b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Amended and Restated 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 Amended and Restated Agreement.

7.2 Specific Performance. Except as set forth in Section 3.3, above, the parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non-monetary relief are particularly appropriate remedies for the enforcement of this Amended and Restated Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 7.1 above.
(b) Due to the size, nature and scope of the projec t, it may not be practical or possible to restore the North Palisades Property to its natural condition once implementation of this Amended and Restated Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the North Palisades Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the North Palisades Project in agreeing to the terms of this Amended and Restated Agreemen t and will be investing even more significant time and resources in implementing the North Palisades Project in reliance upon the terms of this Amended and Restated Agreement, and it is not possible to determine the sum of money which would adequately comp ensate OWNER for such efforts.

7.3 Release. Except for non-damage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Ar ticle 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 Amended an d Restated Agreement or because of the terms of this Amended and Restated Agreement.

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OWNER to perform any material duty or obligation of OWNER under this Amended and Restated Agreement, or to comply in good faith with the terms of this Amended and Restated Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Amended and Restated Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

7.5 Termination of Amended and Resta ted Agreement for Default of CITY .

OWNER may terminate this Amended and Restated Agreement only in the event of a default by CITY in the performance of a material term of this Amended and Restated Agreement and only after providing written notice to CITY o f default setting forth the nature of the default and the actions, if any, required by CITY to cure such default and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8. THIRD PARTY LITIGATION.

CITY shall have no liability in damages under this Amended and Restated Agreement for any failure of CITY to perform under this Amended and Restated Agreement or the inability of OWNER to dev elop the North Palisades Property as contemplated by the Development Plan of this Amended and Restated 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.

8.2 Third Party Litigation Concerning Amended and Restated Agreement .

OWNER shall defend, at its expense, including reasonable attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and em ployees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Amended and Restated Agreement or the approval of any permit granted pursuant to this Amended and Restated 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, O WNER shall not thereafter be responsible 146

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to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

8.3 Indemnity. In addition to the provisions of 8.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limit ed to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including reasonable attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions.

CITY may in its discretion participate in the defense of any such legal action.

8.4 Environmental Assurances . OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the North Palisades Property, including, but not limited to, soil and groundwate r conditions, and OWNER shall defend, at its expense, including reasonable attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

8.6 Survival. The provisions of this Sections 8.1 through 8.6, inclusive, shall survive the termination of this Amended and Restated Agreement.

9. MORTGAGEE PROTECTION.

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with OWNER and re presentatives 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 Amended and Restated Agreement. Any Mortgagee of the North Palisades Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Amended and Restated Agreement nor a breach of this Amended and Restated Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the North Palisades Property made in good faith and for value, unless otherwise required by law.
(b) The Mortgagee of any mortgage o r deed of trust encumbering the North Palisades 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 Amended and Restated 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 Amended and Restated 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 a llowed such party under this Amended and Restated Agreement.
(d) Any Mortgagee who comes into possession of the North Palisades 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 North Palisades Property, or part thereof, subject to the terms of this Amended and Restated Agreement. Notwithstanding any other provision of this Amended and Restated Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Amended and Restated 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 condi tion 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 Amended and Restated Agreement.

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expenditures by CITY relating to CITY’s defense of such claim, action, or proceeding, including any and all appeals from decisions related thereto, as such budgeted or anticipated expenditures are determined by CITY in its sole and absolute discretion. For such purposes, CITY may from time to time, in CITY’s sole and absolute discretion, make written demand upon Owner for deposit of additional funds by Owner into the Fund, in which event Owner shall deposit such additional funds into the Fund with in twenty (20) calendar days following written demand by CITY.

10. MISCELLANEOUS PROVISIONS.

10.1 Recordation of Amended and Restated Agreement . This Amended and Restated Agreement and any amendment or cancellation thereof shall be recorded with the San B ernardino County Recorder by the City Clerk within the period required by Section 65868.5 of the Government Code. If the parties to this Amended and Restated Agreement or their successors in interest amend or cancel this Amended and Restated Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Amended and Restated Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

10.2 Entire Agreement. This Amended and Restated 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 Amended and Restated Agreement.

10.3 Severability. If any term, provision, covenant or condition of this Amended and Resta ted Agreement shall be determined invalid, void or unenforceable, the remainder of this Amended and Restated 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 Amended and Restated Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Amended and Restated Agreement, including the payment of the fees set forth therein, are essential elements of this Amended and Restated Agreement and CITY would not have entered into this Amended and Restated Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Amended and Restated Agreement shall be null and void and of no force and effect whatsoever.

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

10.5 Section Headings. All section hea dings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Amended and Restated Agreement.

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

10.7 Joint and Several Obligations. If at any time during the term of this Amended and Restated Agreement the North Palisades Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Amended and Restated 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 Amended and Restated Agreement except as provided under Section 4 hereof.

10.8 Time of Essence . Time is of the essence in the performance of the provisions of this Amended and Restated Agreement as to which time is an element.

10.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Amended and Restated Agreement by the other party, or the failure by a party to exercise its rights upon the default of the oth er 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 Amended and Restated Agreement thereafter.

10.10 No Third Party Beneficiaries . This Amended and Restated Agreemen t 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 Amended and Restated Agreement.

10.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Amended and Restated 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 Amended and Restated 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 Amended and Restated Agreement shall not be extended under any circumstances for more than five (5) years. 150

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10.13 Successors in Interest . The burdens of this Amended and Restated Agreement shall be binding upon, and the b enefits of this Amended and Restated Agreement shall inure to, all successors in interest to the parties to this Amended and Restated Agreement. All provisions of this Amended and Restated 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 North Palisades Property: (a) is for the benefit of and is a burden upon every portion of the North Palisades Property; (b) r uns with the North Palisades Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the North Palisades Property or any portion thereof.

10.14 Counterparts. This Amended and Restated Agreem ent may be executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

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

10.16 North Palisades Project as a Private Undertaking . It is specifically understood and agreed by and between the parties hereto that the development of the North Palisades 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 Amended and Restated Agreement. No partnership, joint venture or other association of any kind is formed by this Amended and Restated Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

10.17 Further Actions and Instruments . Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Amended and Restated Agreement and the satisfaction of the conditions of this Amended and Restated Agreement. Upon the request of either party at any time, the other party shall prompt ly 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 Amended and Restated Agreement to carry out the inten t and to fulfill the provisions of this Amended and Restated Agreement or to evidence or consummate the transactions contemplated by this Amended and Restated Agreement.
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10.18 Eminent Domain. No provision of this Amended and Restated Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain.

10.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Amended and Restated Agreement, a designation of a natural person r esiding 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 Amended and Restated 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 her eby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

10.20 Estoppel Certificate . Within thirty (30) business days fo llowing a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Amended and Restated Agreement is unmodified and in full force and effect or there have been spec ified (date and nature) modifications to the Amended and Restated Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Amended and Restated Agreement or that the responding p arty alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Amended and Restat ed Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 10.20 prior to CITY’s issuance of such certificates.

10.21 Authority to Execute. The person or persons executing this Amended and Restated Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Amended and Restated 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.

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IN WITNESS WHEREOF, the parties hereto have executed this Development Amended and Restated Agreement on the last day and year set forth below.

OWNER

North Palisade Partners, LLC
a Delaware Limited Liability Company

By:

Brian Wong
Its: Managing Director

Dated:

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ACKNOWLEDGMENT

State of California
County of )

On before me,
______________________________
_______
(insert name and title of the
officer)

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

WITNESS my hand and official seal.

Signature _________________________________ (Seal)

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CITY:

CITY OF FONTANA, a California
municipal corporation

By:_____________________________
Acquanetta Warren, Mayor

Dated: __________________

By: ____________________________
Matthew C. Ballantyne, City Manager

ATTEST:

By:_____________________________
Germaine Key, City Clerk

APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

________________________________
City Attorney
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ACKNOWLEDGMENT

State of California
County of )

On before me,
______________________________
_______
(insert name and title of the
officer)

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

WITNESS my hand and official seal.

Signature _________________________________ (Seal)

5703203.2
27967-940

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EXHIBIT “A-1”

LEGAL DESCRIPTION OF THE PROPERTY

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EXHIBIT “A-2”

LEGAL DESCRIPTION OF THE ACACIA PROPERTY

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EXHIBIT “A-3”

LEGAL DESCRIPTION OF THE NORTH PALISADES PROPERTY

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EXHIBIT “A-4”

LEGAL DESCRIPTION OF THE REMAINING ORIGINAL DA PROPERTY

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EXHIBIT “B”

MAP SHOWING THE PROPERTY AND ITS LOCATION

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EXHIBIT “C”

FORM OF ASSIGNMENT AND ASSUMPTION AGREEMENT

[SEE FOLLOWING PAGES]

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Recording Requested by and
When Recorded Return To:

_____________________
_____________________
_____________________
_____________________

_____________________________________________________________________ (Space above this line for recorder's use only)
DOCUMENTARY TRANSFER TAX: $-0- (No consideration)

PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT
This PARTIAL ASSIGNMENT AND ASSUMPTION AGREEMENT (the
“Agreement”) is made and entered into as of _____________, 202_, by and between ___________________ (“ Assignor”) and ___________________ (“Assignee”) having an address at ______________________________, with reference to the following recitals.

RECITALS

B. Assignor and the City of Fontana, a California municipal corporation (“City”), are parties to that certain “First Amendment and Restatement of Development Agreement No. 23-085, Applicable to the _________ Property”, dated ______________ (the “Development Agreement”), relating to t he development of the Project Site (the “Project”). The Development Agreement is recorded as instrument _________________ in San Bernardino County Official Records.

C. Assignor has transferred a portion of the Project Site, generally described as ___________ _________ and more particularly described in Exhibit “B” attached hereto (the “Assigned Property”) to Assignee in accordance with the terms of a grant deed and (iv) retained ownership of the remainder of the Project Site, consisting of _____________________ (the “Retained Property”). [NTD: IF THE ASSIGNMENT

IS A FULL ASSIGNMENT, THEN PROVISIONS RELATING TO RETAINED OBLIGATIONS WILL BE REMOVED]
D. In accordance with Section 2.4 of the Development Agreement, Assignor desires to assign all rights and obligation s of Assignor under the Development Agreement as to the Assigned Property (“Assigned Property Rights and Obligations”) 163

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and (ii) retain, as the owner of the Retained Property, all remaining obligations under the Development Agreement (the “Retained Property Rights and Obligations”).

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:

AGREEMENT

1. Effective Date. This Agreement shall not be deemed to be effective unless and until the transfer of title to the Assigned Property from Assignor to Assignee occurs, as evidenced by the recordation of a grant deed in the San Bernardino County Official Records conveying the Assigned from Assignor to Assignee (the date of r ecordation of such grant deed, the “Effective Date”).

2. Assignment of Development Agreement. Assignor does hereby sell, transfer, assign, convey and deliver to Assignee all of Assignor's rights, title, obligations, and interests in the Assigned Property Righ ts and Obligations. This Agreement is only intended to assign the Assigned Property Rights and Obligations and does not assign any other rights or obligations under the Development Agreement. Assignor makes no representation or warranties, express or implied, to Assignee concerning the Development Agreement, except as provided herein.

5. Governing Law; Venue. This Agreement and the legal relations of the parties hereto shall be governed by and construed and enforced in accordance with the laws of the State of California, without regard to its principles of conflicts of law. All rights and obligations of the Parties under this Assignment are to be performed in the City of Fontana, and the County of San Bernardino shall be the venue for any legal action or proce eding that may be brought, or arise out of, in connection with or by reason of this Agreement. 164

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7. Further Assurances. Each party shall execute and deliver such other certificates, agreements and documents and take such other actions as may be reasonably required to consummate or implement the transactions contemplated by this Agreement provided the same does not increase such party’s obligations and liabilities or reduce such party’s rights under this Agreement and/or the Development Agreement other than to a de minimis extent.

8. Authority of Signatories to Bind Principals. The persons executing this Agreement on behalf of their respective principals represent that (i) they have been authorized to do so and that they thereby bind the principals to the terms and conditions of this Agre ement and (ii) their respective principals are properly and duly organized and existing under the laws of __________, and are permitted to do business in, the State of California.

9. No Waiver. The waiver or failure to enforce any provision of this Agreement shall not operate as a waiver of any future breach of any such provision or any other provision hereof.

10. Interpretation. The parties acknowledge that this Agreement is the product of negotiation and compromise on the part of both parties, and the parties a gree that since both have participated in the negotiation and drafting of this Agreement, this Agreement shall not be construed as if prepared by one of the parties, but rather according to its fair meaning as a whole, as if both parties had prepared it.

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IN WITNESS WHEREOF, this Agreement has been executed by the parties as of the date set forth above.

“Assignor”

______________________________
a _________ limited liability company

By: _______________________________
Name: ____________________________
Title: ______________________________
“Assignee”

______________________________
a ___________ limited liability company

By: _______________________________
Name: ____________________________
Title: ______________________________
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EXHIBIT “A”

Project Site Legal Description

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ATTACHMENT NO. 1

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Fontana City CouncilJune 9, 2026

Fontana City Council
June 9, 2026