-1- CED\ 30712-0031\ 772529.2 5/2/2023
RECORDING REQUESTED BY:
Th
e Previti Group
2151 E Convention Center Way, Suite 230
Ontario, CA 91764
WHEN RECORDED RETURN TO:
C
ity of Fontana
8353 Sierra Avenue
Fontana, CA 92335
Attn: Gia Kim, City Engineer
Spac
e Above This Line For Recorder’s Use
MAINTENANCE AGREEMENT
TH
IS MAINTENANCE AGREEMENT (“Agreement”) is made and entered into as of this day of , 2026, by and between VASARI 2, LLC, a California limited liability company (“Developer”), and the CITY OF FONTANA (the “City”). Developer and the City may be referred to herein individually as a “Party” or collectively as the “Parties.” RECITALS:
A. Developer is the owner of certain real property located at Assessor’s Parcel Number (APN) 0226-075-85 in the City of Fontana, County of San Bernardino, State of California, which is more particularly described in Exhibit “A,” attached hereto and incorporated herein by reference (the “Developer Property”). Developer has or intends to construct residential dwelling units on the Developer Property.
B. City and Developer wish to establish maintenance obligations and certain rights incidental to the public right-of-way (“ROW”) near portions of the Developer Property as shown in Exhibit “B,” attached hereto and incorporated herein by reference.
C. The Developer Property and ROW are part of a larger project (“Project”) which includes that real property described in Exhibit “C,” attached hereto and incorporated by reference. The remainder of the Project is currently in development, and the Parties anticipate it to be developed pursuant to the terms of a certain 2020 Disposition Agreement, dated July 2, 2020 (the “DDA”).
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:
1. Ma
intenance Obligations.
A. Developer Maintenance Area. “Developer Maintenance Area” means those portions of the parkway landscape areas within the ROW which are generally depicted on Exhibit “B.” The “Developer Maintained Improvements” means street trees, landscaping, and associated irrigation improvements within the Developer Maintenance Area. Developer shall perform the following with respect to the Developer Maintenance Area:
-2- CED\ 30712-0031\ 772529.2 5/2/2023
(i) Keep the Developer Maintenance Area reasonably free of plant and landscape debris.
(ii) Repair damage to the Developer Maintenance Areas due to the elements and ordinary wear and tear.
(iii) Pursuant to Section 4 below, Developer shall Maintain and replace the street trees and landscaping within the Developer Maintenance Area. In addition, the replacement of any Street trees must be approved in writing by the City.
(iv) Maintain proper weed abatement within the Developer Maintenance Areas and corresponding ROW in accordance with the approved plans and all City landscape standards and specifications.
B. City Responsibility. Maintenance and repair of Sidewalks, curb ramps, and curb and gutters shall be the responsibility of the City upon expiration of the one (1) year warranty period and the written acceptance of the improvements by the City.
2. Termination of Developer Maintenance Obligation. Developer shall have the ongoing maintenance obligation of the Developer Maintenance Areas until such time as the City, in its sole and absolute discretion, elects to maintain such area, at which time the applicable area shall no longer constitute a part of the Developer Maintenance Area. In such event, the City shall provide a notice of termination of the Developer Maintenance Areas in writing to Developer.
3. Use of ROW. The Parties agree that neither Party shall have the right to erect any structure or conduct any activity within the ROW which will unreasonably inhibit or impair the use of the ROW described in this Agreement. The ROW shall be accessible by the general public.
4. Right of City to Remedy Failure of Maintenance Obligation. If Developer fails to comply with the provisions of this Agreement, including any failure to maintain the Developer Maintenance Areas and/or the Developer Maintained Improvements, as set forth above, then the City may deliver written notice to Developer identifying the specific defects regarding the maintenance of the Developer Maintenance Areas or Developer Maintained Improvements ("Defects Notice"). The Defects Notice shall specify the date by which Developer must remedy the specific defects identified in the Defects Notice in order to avoid action by the City, which date, except in the case of an emergency situation, shall be no less than fifteen (15) days from the Developer's actual receipt of the Defects Notice.
If the City determines a hazardous situation exists which must be remedied immediately (“emergency situation”), then the City shall have the right to immediately enter into the Developer Maintenance Areas to address and resolve the emergency, after which the City will seek reimbursement in accordance with this section.
If Developer fails to correct the specific defects identified in the Defects Notice within the time period specified in the Defects Notice, the City shall have the right to remedy the specific defects identified in the Defects Notice. Developer hereby grants the City, or its assignees, the right of access, ingress and egress upon and across the Developer Maintenance Area as may be necessary to complete such remedial work. The City may retain, as its election, its own contractors, or the Developer’s contractors, or other third party maintenance company to complete the remedial work, provided that all such contractors shall be appropriately licensed (if a license is required for the performance of the remedial work) and, such contractors are employees of the City, maintain workers compensation insurance, automobile insurance, and general commercial liability insurance with limits and terms acceptable to Developer and on which Developer is named as an additional insured . Except in an -3- CED\ 30712-0031\ 772529.2 5/2/2023
emergency situation, during which remedial or repair work may be performed at any time to address the emergency, all remedial work shall be performed between the hours of 7:00 a.m. and 6:00 p.m. in a manner that minimizes any inconvenience to the residents of the Developer Property. Any costs incurred by the City for the remedial work needed to remedy the specific defects identified in the Defects Notice shall, unless patently unreasonable, be borne solely by the Developer. The City shall provide a written itemized invoice and back-up documentation for such costs (e.g., documentation evidencing the number of worker hours spent performing the remedial work, receipts for the purchase of any materials or lease of any equipment needed to perform the remedial work, mechanics' lien releases, etc.) to Developer within thirty (30) days' after the completion of the remedial work. Developer shall remit payment to the City within thirty (30) days from Developer's receipt of the invoice and back-up documentation. The Parties agree that any remedial work undertaken by the City under this section shall not terminate the maintenance obligations of Developer under this Agreement.
5. Indemnification. Developer hereby covenants and agrees to indemnify, defend (with legal counsel selected by the City), and hold City, its officials, officers, agents, and employees harmless from and against any and all claims, damages (including damage to property and injury to persons), demands, losses, obligations, judgments, liabilities, costs and expenses (including, without limitation, attorneys’ and other fees) arising from or in any way connected to any injury to persons or damage to property caused by the negligence or willful misconduct of Developer or its agents during any installation, repair or maintenance activities by Developer or its contractors or agents in the Developer Maintenance Area. City hereby covenants and agrees to indemnify, defend (with legal counsel selected by City and reasonably acceptable to Developer), and hold Developer, its members and their officers, members, agents, and employees harmless from and against any and all claims, damages (including damage to property and injury to persons), demands, losses, obligations, judgments, liabilities, costs and expenses (including, without limitation, attorneys’ and other fees) arising from or in any way connected any injury to persons or damage to property caused by the negligence or willful misconduct of City or its agents during any installation or maintenance activities in the ROW.
6. Future CFD. Developer and City agree that the ROW is intended to benefit the entire Project, so as other portions of the Project are developed, the owners of such parcels should be obligated to contribute to the ROW maintenance costs. Therefore, as part of the conditions of approval for the other parcels in the Project, the City shall assist with the initiation and execution the necessary procedures for the establishment of a Community Facilities District (“CFD”) which will own and maintain the ROW, and at such time, Developer shall also participate in such CFD and shall reasonably cooperate in the formation of such CFD. Only upon the successful formation of the CFD and transfer of the maintenance obligations described herein to the CFD, shall this Agreement terminate upon written approval by the City. Notwithstanding the foregoing, the City agrees that the conditions of approval for any parcel within the Property which is owned by Developer or an affiliate of Developer (“Affiliate Property”) shall allow for the amendment of this Agreement in order to include the Affiliate Property as part of the Developer Property instead of requiring the formation and annexation into a CFD.
7. Successors and Assigns. This Agreement shall run with the land and shall be binding upon and shall insure to the benefit of the heirs, executors, administrators, successors and assigns of the Developer and the City. The covenants, conditions and restrictions set forth in this Agreement shall constitute equitable servitudes which shall run with the land. Except as expressly stated in this Agreement, there are no third party beneficiaries with the right to enforce this Agreement.
8. Affected and Benefited Land. The land (“Affected Land”) affected by the covenants contained in this Agreement is the Developer Property and the ROW. The land (“Benefited Land”) benefited by the covenants contained in this Agreement is the Developer Property and the ROW. -4- CED\ 30712-0031\ 772529.2 5/2/2023
9. Notices. Unless otherwise provided in this Agreement, all notices, demands, or other communications given pursuant to the terms of this Agreement shall be in writing and shall be deemed to have been given and received upon personal delivery or as of the second business day after mailing in the United States by registered or certified mail, return receipt requested, postage prepaid, addressed as follows or to such other address or to such other person (e.g., Association or the Association's property manager) as either party may designate in a written notice to the other party:
If to Developer:
VASARI 2, LLC
c/o The Previti Group
2151 E. Convention Center Way, Suite 114
Ontario, CA 91764
Attn: Andrew Wennerstrom
Telephone: (909) 354-8010
[email protected]
With a Copy to:
HDO4, LLC
c/o The Previti Group
2151 E. Convention Center Way, Suite 114
Ontario, CA 91764
Attn: Steven B. Imhoof, Esq.
Telephone (909) 354-8085
[email protected]
If to City:
CITY OF FONTANA
8353 Sierra Avenue
Fontana, CA 92335
Attn: Gia Kim, City Engineer
Telephone: (909) 350-7613
[email protected]
With a Copy to:
Best Best & Krieger LLP
28554 E. Guasti Road, Suite 400
Ontario, CA 91761
Attn: Ruben Duran, City Attorney
Telephone: (909) 989-8584
[email protected]
10. Lender Protection. Nothing in this Agreement shall be construed as giving any party priority over the rights of beneficiaries of first deeds of trust encumbering any portion of the Developer Property. No breach of this Agreement shall invalidate the lien of any first deed of trust encumbering the Developer Property.
-5- CED\ 30712-0031\ 772529.2 5/2/2023
11. Headings. The titles or headings of the sections of this Agreement are not a part of the Agreement and shall have no effect upon the construction of or interpretation of this Agreement.
12. Execution in Counterpart. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which, together, shall constitute one and the same instrument.
[Signature Page on Following Page]
-6- CED\ 30712-0031\ 772529.2 5/2/2023
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date first set forth above.
CITY OF FONTANA
By
:
Matthew C. Ballantyne
City Manager
VASARI 2, LLC
By
:
Richard Munkvold
Chief Financial Officer
A
ttest:
By
:
Germaine Key, City Clerk
A
pproved as to form:
Best Best & Krieger LLP
City Attorney
By
:
Phillip Burum, Deputy City Manager
Development Services Organization
By
:
Gia Kim
City Engineer
-7- CED\ 30712-0031\ 772529.2 5/2/2023
STA
TE OF CALIFORNIA )
)
COUNTY OF )
On
, before me, , a Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public (SEAL)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. -8- CED\ 30712-0031\ 772529.2 5/2/2023
STATE OF CALIFORNIA )
)
COUNTY OF )
On , before me, , a Notary Public, personally
appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WITNESS my hand and official seal.
Notary Public (SEAL)
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document.
CED\ 30712-0031\ 772529.2 5/2/2023
EXHIBIT “A”
DEVELOPER PROPERTY
(PA 1B Site Plan)
EXHIBIT “B”
DEVELOPER MAINTENANCEAREA
(PA 1B Landscape Plan)
STOP STOP STOP
JOHN PREVITI AVENUE
CITRUS AVENUE
VENTANA SPECIFIC PLAN - PLANNING AREA 1B
8/12/2026
0' 50' 100' 200'
NORTH
AREA TO BE MAINTAINED
BY VASARI 2, LLC.
24-027
EXHIBIT “C”
LEGAL DESCRIPTION OF REMAINDER OF THE PROJECT
(Site Overview)
APNs:
0226-075-57-0000
0226-075-58-0000
0226-075-59-000
1107-262--0000
1107-262-07-0000
---0000
1107-262-05-0000
---0000
Planning Area 1A
City Council Approval Date: 10-8-24
County Document: # 2024-0255288
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