Agenda packet — Ontario City Council, May 17, 2022 (part 1 of 3)

CITY OF ONTARIO
Regular City Council/Housing
Authority/Successor Agency to the Ontario
Redevelopment Agency/Ontario Public
Financing Authority Meeting
MAY 17, 2022
City Hall
303 East B Street, Ontario, CA 91764

MAYOR PAUL S. LEON • MAYOR PRO TEM ALAN D. WAPNER
COUNCIL MEMBERS JIM W. BOWMAN, DEBRA DORST-PORADA AND RUBEN VALENCIA CITY CLERK SHEILA MAUTZ • TREASURER JAMES R. MILHISER
CITY MANAGER SCOTT OCHOA • CITY ATTORNEY RUBEN DURAN

WELCOME TO A MEETING OF THE ONTARIO CITY COUNCIL

All documents for public review are on ﬁle with the Records Management/City Clerk's Department located at 303 East B Street, Ontario, CA 91764.

Anyone wishing to speak in person during public comment or on a particular item will be required to ﬁll out a blue slip. Blue slips must be turned in prior to public comment beginning or before an agenda item is taken up. The Clerk will not accept blue slips after that time. To comment by email, submit your comments no later than 4:00 p.m. on the day of the meeting by emailing your name, agenda item you are commenting on and your comments to
[email protected].

All
comments received by the deadline will be forwarded to the City Council for consideration before action is taken on the matter and will be entered into the record.

Comments will be limited to 3 minutes. Speakers will be alerted when they have 1 minute remaining and when their time is up. Speakers are then to return to their seats and no further comments will be permitted.

In accordance with State Law, remarks during public comment are to be limited to subjects within Council's jurisdiction. Remarks on other agenda items will be limited to those items.

Remarks from those seated or standing in the back of the chamber will not permitted. All those wishing to speak including Council and Staff need to be recognized by the Chair before speaking.

CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 1 ATTACHMENT:

20220517 Closed Session

WEARING A MASK DURING THE PUBLIC MEETING IS STRONGLY
ENCO
URAGED.

If you need special assistance or accommodations to participate in this meeting, please contact the City Clerk's oﬃce at 909-395-2009. Notiﬁcation of 48 hours prior to the meeting will help the City make reasonable arrangements. Equipment for the hearing impaired is available in the Records Management Office.

ORDER OF BUSINESS

The regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority meeting begins with Closed Session and Closed Session Comment at 5:30 p.m., Public Comment at 6:30 p.m. immediately followed by the Regular Meeting and Public Hearings. No agenda item will be introduced for consideration after 10:00 p.m. except by majority vote of the City Council. (EQUIPMENT FOR THE HEARING IMPAIRED AVAILABLE IN THE RECORDS MANAGEMENT DEPARTMENT).

CALL TO ORDER
(OPEN SESSION)

ROLL CALL
Wapner, Bowman, Dorst-Porada, Valencia, Mayor/Chairman Leon

CLOSED SESSION PUBLIC COMMENT

The Closed Session Public Comment portion of the Council/Housing Authority meeting is limited to a maximum of 3 minutes for each speaker and comments will be limited to matters appearing on the Closed Session. Additional opportunities for further Public Comment will be given during and at the end of the meeting.

CLOSED SESSION
GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION Chino Basin Municipal Water District v. City of Chino et al., San Bernardino Superior Court Case No. RCV51010

GC 54956.9(d)(4), CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION: Two (2) Cases

GC 54956.9 CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION - City of Ontario v. Joseph A. Garcia, San Bernardino Case No. CIVDS2010355

GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION City of Ontario v. We Buy Houses Any Condition, LLC, San Bernardino Superior Court Case No. CIVSB2111984

INVOCATION
Pastor Pete Edwardson, Calvary Baptist Church

REPORT ON CLOSED SESSION
City Attorney
PUBLIC COMMENTS 6:30 P.M.

The Public Comment portion of the Council/Housing Authority meeting is limited to 30 minutes with each speaker given a maximum of 3 minutes. An opportunity for further Public Comment may be given at the end of the meeting. Under provisions of the Brown Act, Council is prohibited from taking action on oral requests.

To comment by email, submit your comments by email no later than 4:00 p.m. on the day of the meeting by emailing your name, agenda item you are commenting on and your comment to [email protected]
. All Comments received by the deadline will be forwarded to the City Council for consideration before action is taken on the matter and entered into the record. As previously noted -- if you wish to address the Council, fill out one of the blue slips at the rear of the chambers and give it to the City Clerk.

AGENDA REVIEW/ANNOUNCEMENTS

The City Manager will go over all updated materials and correspondence received after the Agenda was distributed to ensure Council Members have received them. He will also make any necessary recommendations regarding Agenda modiﬁcations or announcements regarding Agenda items to be considered.

SPECIAL CEREMONIES

TWENTY-SECOND ANNUAL MODEL COLONY AWARDS
That the City Council present the 2022 “Model Colony” Awards for Historic Preservation.

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 a separate vote.

APPROVAL OF MINUTES

ATTACHMENT:

20220419 Minutes (Not official until approved).pdf

2. BILLS & PAYROLL

3. AUTHORIZE THE PURCHASE OF EMERGENCY GENERATORS FOR ONTARIONET POINT-OF-

PRESENCE FACILITIES

4. AN ORDINANCE ADDING CHAPTER 33 TO TITLE 5 OF VOLUME I TO THE ONTARIO

MUNICIPAL CODE, ESTABLISHING A PUBLIC ART PROGRAM, ESTABLISHING A PUBLIC ART

ADVISORY COMMITTEE, AND INCLUDING A DEVELOPMENT FEE TO SUPPORT PUBLIC ART,

AND FINDING THE ACTION EXEMPT FROM CEQA

ATTACHMENT:

20220517 Public Art Fee 01^ORD^RM

5. POLICY FOR NAMING OF ONTARIO CITY LIBRARY FACILITIES, ROOMS, OR COLLECTIONS

ATTACHMENT:

20220517 - Library Facility Naming Policy

6. A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT BETWEEN THE

SUCCESSOR AGENCY TO THE ONTARIO REDEVELOPMENT AGENCY AND HDC CONSTRUCTION, INC. IN ACCORDANCE WITH GOVERNMENT CODE SECTION 37350 ET. SEQ.

Each member of the public wishing to address the City Council on items listed on the Consent Calendar will be given a total of 3 minutes.

Minutes for the regular meetings of the City Council and Housing Authority of April 19, 2022, and approving the same as on file in the Records Management Department.

Bills April 15, 2022 through April 28, 2022, and Payroll April 10, 2022 through April 23, 2022 when audited by the Finance Committee.

That the City Council approve and authorize the City Manager to award Bid Number 1511 for the purchase and delivery of Emergency Generators in the amount not to exceed $150,000 from Bay City Equipment Industries, Inc. of Rancho Cucamonga, California.

That the City Council consider and take action in adding Chapter 33 to Title 5 of Volume I to the Ontario Municipal Code relating to: establishing a Public Art Program, establishing a Public Art Advisory Committee, and a development fee to support public art.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, ADDING CHAPTER 33 TO TITLE 5 OF VOLUME I TO THE ONTARIO MUNICIPAL

CODE, ESTABLISHING A PUBLIC ART PROGRAM, ESTABLISHING A PUBLIC ART

ADVISORY COMMITTEE, AND INCLUDING A DEVELOPMENT FEE TO SUPPORT PUBLIC ART, AND FINDING THE ACTION EXEMPT FROM CEQA.

That the City Council adopt the Administrative Policy for naming of Ontario Library facilities, rooms, or collections.

20220517 HDC Construction 213 North Fern ^1 EXH A.pdf

ATTACHMENT:

20220517 HDC Construction 213 North Fern 02^RESO^RM

7. AN AMENDMENT TO THE COMMUNITY DEVELOPMENT BLOCK GRANT FUNDED

DOWNTOWN FACADE IMPROVEMENT PROGRAM GUIDELINES

ATTACHMENT:

20220517 Amended Downtown Facade Improvement Program
Guidelines^ Attachment A

ATTACHMENT:

20220517 Proposed Facade Improvement Program Area Map^
Attachment B

ATTACHMENT:

20220517 Original Facade Improvement Program Area Map

8. A RESOLUTION REGARDING FOURTH AMENDMENT TO OPERATING COVENANT AND TAX

SHARING AGREEMENT (EXCLUSIVELY VOLVO) BETWEEN THE CITY OF ONTARIO AND G.H.N., INC
That the Agency Board adopt a Resolution approving a Purchase and Sale Agreement (“Agreement”) between the Successor Agency to the Ontario Redevelopment Agency (“Successor Agency”) and HDC Construction, Inc., (“Developer”) of Ontario, California (on ﬁle with the Records Management Department); and authorize the Executive Director to execute the Agreement and all other documents required for implementation of the Agreement.

A RESOLUTION OF THE SUCCESSOR AGENCY TO THE ONTARIO REDEVELOPMENT

AGENCY OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING A PURCHASE AND SALE AGREEMENT WITH HDC CONSTRUCTION, INC. FOR THE PURCHASE OF 213 NORTH FERN AVENUE.

That the City Council consider and approve the adoption of the amended Community Development Block Grant funded Downtown Facade Improvement Program Guidelines.

That the City Council take the following actions:

A
.

Adopt a Resolution approving the Fourth Amendment to the Operating Covenant and Tax Sharing Agreement (Exclusively Volvo), (on ﬁle with the Records Management Department) by and between the City of Ontario and G.H.N, Inc. hereafter referred to as "Dealer", and authorizing the City Manager to execute the Agreement, and making related findings; and
B
.

Direct City Staﬀ to ﬁle a Notice of Exemption based upon the City Council's ﬁnding that the impacts for this Agreement is not a project and subject to environmental review and that there is no possibility that the activity in question may have a signiﬁcant eﬀect on the environment.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,

APPROVING THE FOURTH AMENDMENT TO OPERATING COVENANT AND TAX

SHARING AGREEMENT (EXCLUSIVELY VOLVO) BETWEEN THE CITY OF ONTARIO AND G.H.N., INC.

20220517 Approving 4th Amendment to OCA Exclusively
Volvo^RESO^RM

ATTACHMENT:

Fourth Amendment to Operating Covenant and Tax Sharing
Agreement; Exclusively Volvo.pdf

9. AN INCREASE IN THE TOTAL AUTHORIZED EXPENDITURE FOR THE CONSTRUCTION CONTRACT FOR THE 2021 SPRING ALLEY CDBG PAVEMENT REHABILITATION PROJECT

ATTACHMENT:

Alley Exhibits.pdf

10. RECOGNITION OF "HISTORIC PRESERVATION MONTH" IN THE CITY OF ONTARIO

ATTACHMENT:

20220517 Historic Preservation Month Proclamation

11. APPROVAL FOR LEASE FOR A LEICA LASER SCANNER WITH GREATAMERICA FINANCIAL

SERVICES CORPORATION

12. A CONSTRUCTION CONTRACT FOR THE REPLACEMENT AND INSTALLATION OF FLOORING

AT THE SENIOR CENTER

13. A CONSTRUCTION CONTRACT FOR THE OVITT FAMILY COMMUNITY LIBRARY ROOF

RESTORATION
That the City Council approve an increase of $40,000 in the total authorized expenditure for the construction contract with Onyx Paving Company, Inc. of Anaheim, California (Contractor) for the 2021 Spring Alley Community Development Block Grant (CDBG) Pavement Rehabilitation Project, resulting in a revised total authorized expenditure of $639,500.

That the City Council Proclaim the Month of May 2022 as “Historic Preservation Month” in the City of Ontario.

That City Council approve a second ﬁve-year $81,471 lease with GreatAmerica Services Corporation regarding a Precision Leica RTC360 Forensic Mapping Laser Scanner for the Police Department’s Forensics Division.

That the City Council take the following actions:

A
.

Authorize the City Manager to execute a cooperative purchasing construction contract (Sourcewell Contract #080819-SII on ﬁle with the Records Management Department) with Shaw Industries Inc. of Dallas, Texas, for the replacement and installation of new ﬂooring at the Senior Center in the amount of $121,682.74 with a 10% contingency of $12,168.00 for a total amount not to exceed of $133,850.74.

B
.

Authorize the City Manager to execute said contract and authorize the ﬁling of the notice of completion at the conclusion of all construction activities related to the project.

That the City Council take the following actions:

A
.

Award Bid No. 1505 and approve a Construction Contract with Letner Rooﬁng Company located in Orange, California, for the roof restoration of the new Tremco Roof CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 6 14.

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR ENGINEERING

DESIGN SERVICES FOR THE COMPRESSED NATURAL GAS COMPRESSOR REPLACEMENT AND

UPGRADE PROJECT

15. AN AMENDMENT TO THE EQUIPMENT PURCHASE AGREEMENT WITH MCLAUGHLIN WASTE EQUIPMENT, INC. FOR COMMERCIAL BIN CONTAINERS

16. AN AMENDMENT TO THE EQUIPMENT PURCHASE AGREEMENT WITH MCLAUGHLIN WASTE EQUIPMENT, INC. FOR ROLL-OFF CONTAINERS AND PARTS

17. PROCLAMATION OF MAY 21, 2022 AS KIDS TO PARKS DAY

ATTACHMENT:

20220517 - Kids to Parks Day - Proclamation.doc

18. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR INTEGRATED

PROJECT CONTROLS, ASSESSMENT, AND REPORTING SERVICES

Application System (on ﬁle with Records Management) at the Ovitt Family Community Library for an amount of $830,700, plus a contingency of $32,128 for a total amount of $862,828;
B
.

Authorize the City Manager to execute said contract; and C
.

Authorize the ﬁling of the notice of completion at the conclusion of all construction activities related to the project.

That the City Council authorize the City Manager to execute Amendment No. 3 (on ﬁle in the Records Management Department) to the Professional Service Agreement with STV Energy Services, Inc. of Douglassville, Pennsylvania for engineering services for the City’s Compressed Natural Gas (CNG) Compressor Replacement and Upgrade Project, adding $34,690 for a revised total contract amount of $188,320.

That the City Council authorize the City Manager to execute Amendment No. 3 to the existing Equipment Purchase Agreement with McLaughlin Waste Equipment, Inc. of Galt, California (on ﬁle in the Records Management Department) for the procurement of commercial bin containers in an amount not to exceed $2,900,000.

That the City Council a
uthorize the City Manager to execute Amendment No. 1 to the existing Equipment Purchase Agreement with McLaughlin Waste Equipment, Inc. of Galt, California (on ﬁle in the Records Management Department) for the procurement of roll-oﬀ containers in an amount not to exceed $1,480,000.

That the City Council proclaim May 21, 2022 as Kids to Parks Day in the City of Ontario.

That the City Council approve and authorize the City Manager or his designee to execute Amendment No. 2 to the Professional Services Agreement (on ﬁle in the Records Management Department) with CAPO Project Group, LLC., of San Clemente, California, in the amount of $200,000, increasing the not-to-exceed amount from $99,835 to $299,835 and extending the services to September 30, 2023.

TWO PROFESSIONAL SERVICES AGREEMENTS FOR PRETREATMENT PROGRAM & CIVIL

ENGINEERING SUPPORT SERVICES

ATTACHMENT:

Exhibit A.pdf

20. A PROCLAMATION DECLARING MAY 2022 AS HUNTINGTON'S DISEASE AWARENESS MONTH

ATTACHMENT:

20220517_Huntingtons Disease Awareness Month.docx

21. A PUBLIC HEARING TO CONSIDER AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA21-014) BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO, LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP 20449 (FILE NO. PMTT21-014), A 35.65-ACRE PROPERTY LOCATED

NEAR THE SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH ROAD, WITHIN PLANNING AREA 9A (RESIDENTIAL & COMMERICIAL LAND USE DISTRICT) OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 0218-211-01 That the City Council take the following actions:
1 .

Approve and authorize the City Manager to execute a Professional Services Agreement with EEC Environmental of Orange, California, in the amount of $15,000 for Fiscal Year 2021-22, and authorize the cost of $80,000 (with up to a 5% increase) per Fiscal Year (2022-23 to 2027-28) for a total not-to-exceed of $457,050 for the five years. 2 .

Approve and authorize the City Manager to execute a Professional Services Agreement with Project Partners, Inc., of Laguna Hills, California, in the amount of $35,000 for Fiscal Year 2021-22, and authorize the cost of $120,000 (with up to a 5% increase) per Fiscal Year (2022-23 to 2027-28) for a total not-to-exceed of $698,075 for the five years.

That the City Council proclaim May 2022 as Huntington's Disease Awareness Month.

PUBLIC HEARINGS

Pursuant to Government Code Section 65009, if you challenge the City’s zoning, planning or any other decision in court, 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 Council at, or prior to the public hearing. Aﬃdavits of posting compliance, for all items below, are on file with the Records Management Department.

That the City Council introduce and waive further reading of an Ordinance approving the Development Agreement (File No. PDA21-014) between the City of Ontario and BrookCal Ontario, LLC., to establish the terms and conditions for the development of Tentative Tract Map 20499 (File No. PMTT21-014), a 35.65-acre property located near the southeast corner of Haven Avenue and Ontario Ranch Road, within Planning Area 9A (Residential & Commercial land use district) of the Rich Haven Specific Plan.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA21-014, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 8 ATTACHMENT:

20220517 File No. PDA21-014 BrookCal Ontario LLC^01 EXB A & B

ATTACHMENT:

20220517 File No. PDA21-014 BrookCal Ontario LLC^02 PC Backup.pdf

ATTACHMENT:

20220517 File No. PDA21-014 BrookCal Ontario LLC 03^ORD^RM

ATTACHMENT:

20220517 File No. PDA21-014 BrookCal Ontario LLC^04 AGMT

22. ACCEPTANCE OF A RESOLUTION OF ABANDONMENT OF PROCEEDINGS FOR PROPOSED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER

FACILITIES)

ATTACHMENT:

20220517 CFD No. 63 Olive and Oleander Abandonment of
Proceedings^RESO^RM

23. APPROVAL OF THE ISSUANCE AND SALE OF LEASE REVENUE BONDS TO FINANCE CERTAIN

PUBLIC CAPITAL IMPROVEMENTS FOR PUBLIC PURPOSES
CITY OF ONTARIO AND BROOKCAL ONTARIO LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP 20449 (FILE NO.

PMTT21-014), A 35.65-ACRE PROPERTY LOCATED NEAR THE SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH ROAD, WITHIN PLANNING AREA 9A (RESIDENTIAL & COMMERICIAL LAND USE DISTRICT) OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-211-01.

That the City Council consider and
accept a Resolution of Abandonment to abandon any and
all proceedings with respect to the Proposed Community Facilities District No 63 (Olive and Oleander Facilities) (the "CFD"), including any and all proceedings initiated or completed by the Resolution of Intention to Incur Bonded Indebtedness and any and all proceedings, required or contemplated by the Act with respect thereto subsequent date of adoption of the Resolution of Intention and the Resolution to Incur Bonded Indebtedness.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, OF

ABANDONMENT OF PROCEEDINGS FOR PROPOSED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER FACILITIES).

That the City Council and the Ontario Public Financing Authority adopt a Resolution authorizing proceedings and agreements relating to the ﬁnancing of public capital improvements for public purposes.

A
.

City Council adopt a Resolution approving issuance and sale of bonds by the Ontario Public Financing Authority;
B
.

Approve an Official Statement and authorize official actions; C
.

Ontario Public Financing Authority adopt a Resolution of the Ontario Public Financing Authority authorizing the issuance of its Lease Revenue Bonds in the aggregate principal amount of not to exceed $110,000,000 in connection with the ﬁnancing of public capital improvements;
D
.

Authorize and direct execution of a ﬁrst amendment and supplement to Indenture, a ﬁrst amendment and supplement to Lease Agreement, a ﬁrst amendment Ground Lease Agreement, Assignment Agreement, and Agency Agreement;
CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 9 ATTACHMENT:

20220517 Ontario PFA 2022 LRBs - Resolution-City Approving Bonds^01^RESO^RM

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs-Resolution-Authority Authorizing Financing^02^RESO^RM

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs - Supplemental Lease Agreement

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs - Supplemental Indenture

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs -First Amendment to Ground Lease

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs - Assignment Agreement

ATTACHMENT:

20220517 Ontario PFA 2022 LRBs - Agency Agreement

ATTACHMENT:

20220517 Official Statement Ontario 2022 Lease Revenue Bonds (Civic Center)

ATTACHMENT:

20220517 Ontario BPA

24. FIRST READING OF ORDINANCE ADOPTING A MILITARY EQUIPMENT USE POLICY PURSUANT TO GOVERNMENT CODE SECTIONS 7070, ET. SEQ.

E
.

Authorize the sale of the bonds and an Oﬃcial Statement and authorize oﬃcial actions and execution of related documents; and
F
.

Authorize the City Manager to negotiate and execute contracts for the services of Bond Counsel, Municipal Advisor, Underwriter, and Trustee.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,

AUTHORIZING PROCEEDINGS AND AGREEMENTS RELATING TO THE FINANCING OF

PUBLIC CAPITAL IMPROVEMENTS FOR PUBLIC PURPOSES, APPROVING ISSUANCE

AND SALE OF BONDS BY THE ONTARIO PUBLIC FINANCING AUTHORITY, APPROVING AN OFFICIAL STATEMENT AND AUTHORIZING OFFICIAL ACTIONS.

A RESOLUTION OF THE ONTARIO PUBLIC FINANCING AUTHORITY OF THE CITY OF

ONTARIO, CALIFORNIA, AUTHORIZING THE ISSUANCE OF ITS LEASE REVENUE BONDS IN THE AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $110,000,000

IN CONNECTION WITH THE FINANCING OF PUBLIC CAPITAL IMPROVEMENTS,

AUTHORIZING AND DIRECTING EXECUTION OF A FIRST AMENDMENT AND

SUPPLEMENT TO INDENTURE, A FIRST AMENDMENT AND SUPPLEMENT TO LEASE

AGREEMENT, FIRST AMENDMENT TO GROUND LEASE AGREEMENT, ASSIGNMENT

AGREEMENT, AND AGENCY AGREEMENT, AUTHORIZING THE SALE OF THE BONDS

AND AN OFFICIAL STATEMENT AND AUTHORIZING OFFICIAL ACTIONS AND EXECUTION OF RELATED DOCUMENTS.

ADMINISTRATIVE REPORTS/DISCUSSION/ACTION
That the City Council introduce and waive further reading of an Ordinance adopting the “Military Equipment” policy and approve the itemized military grade equipment currently in possession of the Ontario Police Department.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA,

ADOPTING A MILITARY EQUIPMENT USE POLICY PURSUANT TO GOVERNMENT CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 10 ATTACHMENT:

20220517 AB 481 ORD^01^RM

ATTACHMENT:

OPD Lexipol Policy 708 Military_Equipment_(Final Proposed).pdf

ATTACHMENT:

OPD AB 481 Military Equipment Inventory (Final Proposed).pdf

25. ACCEPTANCE OF A WRITTEN PETITION TO CREATE A COMMUNITY FACILITIES DISTRICT; A

RESOLUTION OF INTENTION TO ESTABLISH CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 66 (OLIVE AND OLEANDER FACILITIES) AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES; AND A RESOLUTION TO INCUR BONDED INDEBTEDNESS

ATTACHMENT:

20220517 CFD No. 66 Olive and Oleander Facilities 01 RESO of Intention^RM

ATTACHMENT:

20220517 CFD No. 66 Olive and Oleander Facilities^01A Map EXH A.pdf

ATTACHMENT:

20220517 CFD No. 66 Olive and Oleander Facilities^01B RMA EXH C.pdf

ATTACHMENT:

20220517 CFD No. 66 Olive and Oleander Facilities 02 RESO Incur Bonded Indebt^RM
CODE §§ 7070, ET. SEQ.

That the City Council consider and:

A
.

Accept a written petition (on ﬁle with the Records Management Department) from Shea Homes Limited Partnership, to create a Community Facilities District, and to waive certain procedural matters under the Mello-Roos Community Facilities Act of 1982; B
.

Adopt a Resolution of Intention to establish City of Ontario Community Facilities District No. 66 (Olive and Oleander Facilities) (the "CFD") and authorize the associated levy of special taxes therein; and set a public hearing for the formation of the CFD as part of the regularly scheduled City Council meeting on Tuesday, June 21, 2022; and C
.

Adopt a Resolution to Incur Bonded Indebtedness of proposed Community Facilities District No. 66 (Olive and Oleander Facilities)

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, OF

INTENTION TO ESTABLISH A COMMUNITY FACILITIES DISTRICT, PROPOSED TO BE NAMED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 66 (OLIVE AND OLEANDER FACILITIES), AND TO AUTHORIZE THE LEVY OF SPECIAL TAXES.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, TO

INCUR BONDED INDEBTEDNESS OF THE PROPOSED CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 66 (OLIVE AND OLEANDER FACILITIES).

STAFF MATTERS

City Manager Ochoa

COUNCIL MATTERS

Mayor Leon
CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 11 Mayor Pro tem Wapner
Council Member Bowman
Council Member Dorst-Porada
Council Member Valencia

ADJOURNMENT
CITY OF ONTARIO Regular City Council/Housing Authority/Successor Agency to the Ontario Redevelopment Agency/Ontario Public Financing Authority Meeting
CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 12

Page 1 of 2 ends

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) May 17, 2022
ROLL CALL: Wapner _, Bowman _, Dorst-Porada _, Valencia _, Mayor / Chairman Leon _.

STAFF: City Manager / Executive Director __, City Attorney __ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION Chino Basin Municipal Water District v. City of Chino et al., San Bernardino Superior Court Case No.

RCV51010
No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.9(d)(4), CONFERENCE WITH LEGAL COUNSEL - ANTICIPATED LITIGATION:

Two (2) Cases
No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ 13

Page 2 of 2 ends

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) May 17, 2022
(continued)
In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.9 CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION - City of Ontario v. Joseph A. Garcia, San Bernardino Case No. CIVDS2010355 No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.9(d)(1), CONFERENCE WITH LEGAL COUNSEL - EXISTING LITIGATION City of Ontario v. We Buy Houses Any Condition, LLC, San Bernardino Superior Court Case No.

CIVSB2111984
No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ Reported by:
___________________________________________
City Attorney / City Manager / Executive Director
14 ONTARIO CITY COUNCIL/

ONTARIO HOUSING AUTHORITY

MINUTES
APRIL 19, 2022
(Not official until approved)

JOINT MEETINGS

The regular meetings of the Ontario City Council and Housing Authority were held on Tuesday, April 19, 2022 at Ontario City Hall, 303 E. B Street Ontario, California.

CALL TO ORDER

Mayor Leon called the Joint City Council and Ontario Housing Authority meetings to order at 5:35 p.m.

ROLL CALL

PRESENT: Mayor/Chairman Paul S. Leon
Mayor pro Tem/Vice Chair: Alan D. Wapner
Council/Authority Members: Jim W. Bowman, Debra Dorst -Porada and Ruben Valencia

ABSENT: Council/Authority Members: None.

Also present were City Manager / Executive Director Scott Ochoa , Assistant City Attorney/Legal Counsel Ruben Duran, and City Clerk/Secretary Sheila Mautz.

CLOSED SESSION PUBLIC COMMENT

Mayor Leon inquired whether persons were present who wished to speak to the Closed Sessions item. Hearing no one, City Attorney Duran announced the matters for discussion, as listed on the agenda, and the City Council recessed to Closed Session at 5:36 p.m. for discussion of the following:

CLOSED SESSION

• GC 54956.9 (d)(1), CONFERENCE WITH LEGAL COUNSEL -EXISTING LITIGATION Wendie Rios v. City of Ontario et al., Superior Court of California, County of San Bernardino Case No: CIVDS1828142

• GC 54956.8 CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property:

APN: 1048-562-01; 215 West C Street; City/Authority negotiator: Scott Ochoa, City Manager or his designee; Negotiating parties: United Christian Church of Hacienda Heights; Under negotiation: Price and Terms of Payment

15 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 2 of 15 ends

CALL TO ORDER – OPEN SESSION
Mayor Leon called the City Council and Ontario Housing Authority meetings to order at 6:33 p.m.

PLEDGE OF ALLEGIANCE

The Pledge of Allegiance was led by Council Member Valencia.

INVOCATION

The Invocation was led by Pastor Benjamin Barlow, First Christian Church.

REPORT ON CLOSED SESSION

City Attorney Duran stated there was no reportable action.

PUBLIC COMMENTS

Twelve emailed comments regarding support for farmland were entered into the record:

Tiffany Wisniewski
Cara Zaruba Butler
Megan Martinez
Gabriela Armenta
Cindy Nguyen
Erin Guidry
Nicole Bonon
Susan Susanto
Juana Gamez
Rosemary Ramos
Devon Rocha
Cara Adams

The Mayor then called upon the first speaker:

Randy Bekendam, spoke on local farming.

David Scurborough, spoke on local farming.

Gabriel Kaysarn, spoke on importance of counseling for teenagers.

Jairus Maritnez, spoke on local farming.

Armando Rodriguez , announced the Hispanic Ch amber of Commerce’s upcoming events.

16 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 3 of 15 ends

Cassandra Sanchez, spoke on the Jesus Sanchez homicide case and requested support from the public.

Chris Robles, spoke on the districting process and made a records request related to the State of the City event and districting process.

Nicholas Lee, spoke on local farming.

AGENDA REVIEW/ANNOUNCEMENTS

City Manager Ochoa clarified that the City Council’s approval of the recent Ordinance did not impact the land where Amy’s Farm is located.

The City Manager also announced updated Exhibits to Item No. 05 reflecting a reduced assessment amount of $8,913.94, a memo to Public Hearing No. 19, in addition to requesting the continuance of Public Hearings Nos. 17, 18, and 20.

SPECIAL CEREMONIES

• Honoring the Chaffey Academic Decathlon Team

CONSENT CALENDAR

MOTION: Moved by Council Member Dorst -Porada, seconded by Council Member Bowman and carried by unanimous vote 5-0, to approve the Consent Calendar as presented.

1. APPROVAL OF MINUTES

The City Council approved minutes for the regular meetings of the City Council and Housing Authority of March 15, 2022, approving the same as on file in the Records Management Department.

2. BILLS & PAYROLL

Approved Bills from March 18 , 202 2 through March 31, 202 2 in the amount of $13,524,260.37 and Payroll March 13, 2022 through March 26, 2022 in the amount of $3,879,424.68, when audited by the Finance Committee.

3. RESOLUTIONS DEDICATING RIGHT -OF-WAY EASEMENTS FOR PUBLIC

ROAD AND UTILITY PURPOSES OVER A PORTION OF CITY -OWNED

PARCELS AT BUDD STREET AND FERN AVENUE, MAITLAND STREET AND

BON VIEW AVENUE, AND WALNUT STREET AND CAMPUS AVENUE

The City Council considered and adopted three Resolutions dedicating right-of-way easements for public road and utility purposes over a portion of City -owned parcels at Budd Street and Fern Avenue (APN: 1050 -051-31, 32, 33), Maitland Street and 17 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 4 of 15 ends

Bon View Avenue (APN: 1049- 451-01, 02, 24), and Walnut Street and Campus Avenue (APN: 1051- 381-06); and authorize d the City Manager or his designee to execute the easement deeds.

RESOLUTION NO. 2022 -028 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, DEDICATING A RIGHT -OF-WAY EASEMENT

FOR PUBLIC ROAD AND UTILITY PURPOSES OVER A PORTION OF

CITY-OWNED PARCELS (DE ANZA PARK, COMMUNITY & TEEN CENTER) AT BUDD STREET AND FERN AVENUE – APN: 1050-051-31, 32, 33.

RESOLUTION NO. 2022 -029 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, DEDICATING A RIGHT -OF-WAY EASEMENT

FOR PUBLIC ROAD AND UTILITY PURPOSES OVER A PORTION OF

CITY-OWNED PARCELS (BON VIEW PARK) AT MAITLAND STREET AND BON VIEW AVENUE – APN: 1049-451-01, 02, 24.

RESOLUTION NO. 2022 -030 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, DEDICATING A RIGHT -OF-WAY EASEMENT

FOR PUBLIC ROAD AND UTILITY PURPOSES OVER A PORTION OF A

CITY-OWNED PARCEL (KIMBALL COMMUNITY PARK) AT WALNUT STREET AND CAMPUS AVENUE – APN: 1051-381-06.

4. ACCEPTANCE OF GRANT AWARD FROM THE U.S. DEPARTMENT OF

HOMELAND SECURITY AND THE CALIFORNIA OFFICE OF EMERGENCY SERVICES PROVIDED THROUGH THE FY 2020 URBAN AREA SECURITY

INITIATIVE (UASI) GRANT PROGRAM

The City Council authorized the City Manager to execute all documents necessary to accept a three- year sub-grant award in the amount of $603,025 from the U.S.

Department of Homeland Security and the California Oﬃce of Emergency Services provided through the FY 2020 UASI Grant Program.

5. A RESOLUTION FOR PLACEMENT OF SPECIAL ASSESSMENTS ON THE SAN

BERNARDINO COUNTY TAX ROLLS

The City Council adopt ed a Resolution for recovery of fees and costs incurred in abating property a nd dangerous building violations, as well as administrative citations and civil penalties associated with property maintenance violations, and placing assessments on the San Bernardino County Tax Rolls.

RESOLUTION NO. 2022 -031 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, ADOPTING A REPORT REQUESTING THE

PLACEMENT OF SPECIAL ASSESSMENTS ON PROPERTY TAX BILLS FOR

CIVIL PENALTIES OR RECOVERY OF COSTS INCURRED FOR ABATEMENT OF VIOLATIONS OF CITY CODES AND ORDINANCES.

18 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 5 of 15 ends

6. FIRST AMENDMENT TO THE CONSOLIDATED PLAN ANNUAL ACTION PLAN FOR THE 2021-22 PROGRAM YEAR AND AMENDMENT TO HOME PROGRAM

PARTICIPATION AMENDMENT BETWEEN THE CITY OF ONTARIO, ONTARIO

HOUSING AUTHORITY AND MERCY HOUSE CHDO FOR THE ACQUISITION AND REHABILITATION OF 411 N. PARKSIDE AVENUE

The City Council ("City") and the Board of the Ontario Housing Authority ("Authority") took the following actions:

1. Approved the First Amendment to the FY 2021- 22 Annual Action Plan (“Substantial Amendment”);

2. Approved the First Amendment to the HOME Program P articipation Agreement among the City of Ontario, Ontario Housing Authority, and Mercy House CHDO, Inc. for the acquisition and rehabilitation of 411 North Parkside Avenue (on file in the Records Management Department); and

3. Authorized the City Manager/Exec utive Director or his designee to sign all documents necessary to implement the Agreements.

7. A RESOLUTION ESTABLISHING PARKING RESTRICTIONS FOR STREET

SWEEPING PURPOSES ON CERTAIN PORTIONS OF NORTH VIRGINIA STREET BETWEEN EAST 6TH STREET AND EAST DEODAR STREET IN THE

CITY OF ONTARIO

The Cit y Council adopt ed a Resolution of the City Council establishing parking restrictions for street sweeping purposes on certain portions of North Virginia Street between East 6th Street and East Deodar Street in the City of Ontario.

RESOLUTION NO. 2022 -032 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, ESTABLISHING PARKING RESTRICTIONS

FOR STREET SWEEPING PURPOSES ON CERTAIN PORTIONS OF NORTH VIRGINIA STREET BETWEEN EAST 6TH STREET AND EAST DEODAR STREET IN THE CITY OF ONTARIO.

8. A CONSTRUCTION CONTRACT FOR A POLICE DEPARTMENT FLEET

SERVICES SHOP

The City Council took the following actions:

A. Rejected Clawson Automotive Equipment and SAS Construction’s bid as being non-responsive;
B. Awarded a Construction Contract to BCM Group, Inc. of Rancho Cucamonga, California for the construction of a Police Department Fleet Services Shop in an amount not to exceed $649,999 plus a 10% contingency of $64,999 to address any unforeseen issues that may arise during construction, for a total authorized expenditure of $714,998; and
19 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 6 of 15 ends

C. Authorized the City Manager, or his designee, to execute said contract and all documents required for the completion of the project and file a notice of completion at the conclusion of all construction activities.

9. AMENDMENT TO AGREEMENT WITH AXON ENTERPRISE, INC. FOR THE

UPGRADE OF EQUIPMENT AND HARDWARE

The City Council authorize d the City Manager to execute an amendment to the existing five-year agreement with Axon Enterprise, Inc., of Scottsdale, Arizona, for the purchase of new equipment including; cameras, maintenance, and data management services at an a dditional cost of $80,528 to the existing contract of $3,722,106, for a total not-to-exceed of $3,802,634.

10. A CHANGE ORDER TO THE CONSTRUCTION CONTRACT WITH DBA LETNER ROOFING CO. FOR ADDITIONAL LABOR AND MATERIALS NEEDED FOR THE

SOLAR INSTALLATION PROJECT AT CITY HALL ANNEX BUILDING

The City Council took the following actions:

A. Authorized the City Manager or his designee to execute a change order in the amount of $110,298 to the original Construction Contract for DBA Letner Roofing Co. for the solar improvement project at City Hall Annex Building.

DBA Letner’s Roofing Company’s original contract value amount of $546,997 plus a 10% contingency of $54,699 for a total amount of $601,696. Additional funding of $110,298 will revise contract value to $711,994; B. Authorized the City Manager to transfer the budget appropriations of $110,298 to the or iginal Construction Contract for DBA Letner Roofing Co. from the Library Roof Restoration Project. This additional funding will assist the solar improvement project at City Hall Annex Building as outlined in the Energy Service Agreement with Climatec, LLC (on file with Records Management Department).; and
C. Authorized the City Manager or his designee to execute said contract and authorized the filing of the notice of completion at the conclusion of all construction activities related to the project.

11. BUDGET AMENDMENT FOR THE PURCHASE OF FLEET VEHICLES

The City Council authorized a $31,000 budget amendment from the Integrated Waste Fund for the purchase of two (2) Autocar Roll Oﬀ trucks in the amount of $601,000 for the Integrated Waste Department.

20 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 7 of 15 ends

12. AN AMENDMENT TO THE ON- CALL DESIGN SERVICES AGREEMENT FOR

ONTARIO MUNICIPAL SERVICES CENTER MODULAR OFFICES

The City Council approved and authorized the City Manager, or his designee to execute Amendment No. 3 to the On- Call Design Service Agreement with Holt Architects, Inc. (dba Holt Architecture) of Palm Desert, California in the amount of $90,498, plus a 15% contingency of $13,575 for a total amount of $104,073.

13. REAL PROPERTY EXCHANGE BETWEEN THE CITY OF ONTARIO AND THE

UNIVERSITY OF LA VERNE

The City Council adopted a Resolution:

A. Declaring certain City-owned real property to be exempt surplus land; B. Approving a real property exchange agreement with the University of La Verne;
C. Authorizing the City Manager to take all actions necessary with respect thereto; and
D. Finding that no further CEQA analysis is necessary

RESOLUTION NO. 2022 -033 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, (I) DECLARING CERTAIN CITY-OWNED REAL PROPERTY TO BE EXEMPT SURPLUS LAND; (II) APPROVING A REAL PROPERTY EXCHANGE AGREEMENT WITH THE U NIVERSITY OF LA VERNE; (III) AUTHORIZING THE CITY MANAGER TO TAKE ALL ACTIONS NECESSARY WITH RESPECT THERETO; AND (IV) FINDING THAT NO FURTHER CEQA ANALYSIS IS NECESSARY.

14. AN AMENDMENT TO PROFESSIONAL SERVICES AGREEMENTS FOR

ON-CALL APPRAISAL, PROJECT MANAGEMENT, LAND ACQUISITION,

RELOCATION AND PROPERTY MANAGEMENT SERVICES

The City Council (“City”) approved and authorized the City Manager or his designee to execute Amendment No. 3 to Professional Services Agreements with R.P. Laurain & Associates in the amount of $100,000; Integra Realty Resources in the amount of $100,000; Property Specialist Inc., (dba CPSI) in the amount of $200,000; and, Amendment No. 6 to Professional Services Agreements with Transtech Engineers Inc. in the amount of $100,000.

15. FIRST AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT FOR

ARCHITECTURAL AND DESIGN SERVICES

The City Council (“City”) approve d and authorized the City Manager to execute a First Amendment to a Professional Services Agreements with Thirtieth Street Architects in the amount not to exceed $200,000.

21 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 8 of 15 ends

16. CONSIDERATION OF A PROPOSED MILITARY EQUIPMENT USE POLICY TO

COMMENCE THE APPROVAL PROCESS OF THE POLICY PURSUANT TO GOVERNMENT CODE &SECT; 7070 ET. SEQ

The City Council received the proposed military equipment use policy and commenced the approval process for the City of Ontario to adopt the policy in accordance with Government Code § 7070 et. seq.

PUBLIC HEARINGS

17. A PUBLIC HEARING TO CONSIDER A RESOLUTION CALLING A SPECIAL

ELECTION FOR PROPOSED CHANGES TO THE RATE AND METHOD OF

APPORTIONMENT OF THE EXISTING SPECIAL TAX OF THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES); A RESOLUTION OF CHANGE, DECLARING RESULTS

OF A SPECIAL ELECTION, DETERMINING THAT CHANGES TO THE RATE

AND METHOD OF APPORTIONMENT OF THE EXISTING SPECIAL TAX OF COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2

SOUTH-FACILITIES) ARE LAWFULLY AUTHORIZED AND DIRECTING THE RECORDING OF AN AMENDMENT TO NOTICE OF SPECIAL TAX LIEN; A N D AN ORDINANCE AMENDING AND RESTATING ORDINANCE NO. 3082

LEVYING SPECIAL TAXES WITHIN THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES); A RESOLUTION DEEMING IT NECESSARY TO AMEND RESOLUTION NO. 2017-124 IN ORDER TO INCREASE THE MAXIMUM AGGREGATE AMOUNT OF

BONDED INDEBTEDNESS THAT CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH -FACILITIES) IS AUTHORIZED TO INCUR; A RESOLUTION CALLING A SPECIAL ELECTION FOR CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH- FACILITIES); AND A RESOLUTION DECLARING THE RESULTS OF THE SPECIAL ELECTION.

The City Council continued the following actions to the May 3, 2022 regular City Council meeting:

A. Adopt a Resolution calling a special election for proposed changes to the Rate and Method of Apportionment (the "RMA") of the existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities), (the "CFD")
B. Adopt a Resolution declaring results of the special election, determining that changes to the Rate and Method of Apportionment of the existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities) are lawfully authorized and directing recording of an amendment to Notice of Special Tax Lien,
C. Introduce and waive further reading of an Ordinance amending and restating Ordinance No. 3082 levying special taxes within City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities). 22 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 9 of 15 ends

D. Adopt a resolution deeming it necessary to amend Resolution No. 2017- 124 in order to increase the maximum aggregate amount of bonded indebtedness that Community Facilities District No. 35 (Countryside Phase 2 South-Facilities) is authorized to incur;
E. Adopt a Resolution calling a special election for Community Facilities District No. 35 (Countryside Phase 2 South-Facilities); and
F. Adopt a Resolution declaring the results of the special election.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CALLING A SPECIAL ELECTION FOR PROPOSED CHANGES TO

THE RATE AND METHOD OF APPORTIONMENT OF THE EXISTING SPECIAL TAX OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES).

A RESOLUTION OF CHANGE OF THE CITY COUNCIL OF THE CITY OF

ONTARIO, CALIFORNIA, DECLARING RESULTS OF SPECIAL ELECTION,

DETERMINING THAT CHANG ES TO THE RATE AND METHOD OF

APPORTIONMENT OF THE EXISTING SPECIAL TAX OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2

SOUTH-FACILITIES) ARE LAWFULLY AUTHORIZED AND DIRECTING RECORDING OF AN AMENDMENT TO NOTICE OF SPECIAL TAX LIEN.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING AND RESTATING ORDINANCE NO. 3082 LEVYING

SPECIAL TAXES WITHIN THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES).

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, DEEMING IT NECESSARY TO AMEND RESOLUTION NO. 2017-124 IN ORDER TO INCREASE THE MAXIMUM AGGREGATE AMOUNT OF

BONDED INDEBTEDNESS THAT CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE P HASE 2 SOUTH -FACILITIES) IS AUTHORIZED TO INCUR.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CALLING SPECIAL ELECTION FOR CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES).

A RESOLUTION O F THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, DECLARING RESULTS OF SPECIAL ELECTION OF COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES).

Notice of public hearing has been duly given and affidavits of compliance are on file in the Records Management Department.

23 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 10 of 15 ends

There were no written communications. Mayor Leon opened the public hearing asking those persons interested in this item to speak. Hearing no one wishing to speak, Mayor Leon opened the item for Council discussion and continued the public hearing.

MOTION: Moved by Council Member Dorst -Porada, seconded by Council Member Bowman and carried by unanimous vote of 5- 0, to continue the Public Hearing to the May 3, 2022 meeting.

18. A PUBLIC HEARING TO CONSIDER A RESOLUTION REGARDING THE

FORMATION OF THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER); ADOPTION OF A RESOLUTION TO INCUR BONDED INDEBTEDNESS; AND INTRODUCTION OF AN ORDINANCE

LEVYING SPECIAL TAXES

The City Council continued the item to the May 3, 2022 meeting.

A. Adopt a resolution of formation of Community Facilities District No. 63 (Olive and Oleander), authorizing the levy of special taxes within the community facilities district, and establishing an appropriations limit for the community facilities district;
B. Adopt a resolution deeming it necessary to incur bonded indebtedness within Community Facilities District No. 63 (Olive and Oleander); C. Adopt a resolution calling a special election for City of Ontario C ommunity Facilities District No. 63 (Olive and Oleander);
D. Adopt a resolution declaring the results of the special election and directing the recording of a Notice of Special Tax Lien;
E. Introduce and waive further reading of an ordinance levying special taxes within City of Ontario Community Facilities District No. 63 (Olive and Oleander); and
F. Adopt a resolution authorizing the execution and delivery of an acquisition and funding agreement with Shea Homes Limited Partnership, a California limited partnership.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, OF FORMATION OF THE CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER), AUTHORIZING THE LEVY OF A SPECIAL TAX.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, DEEMING IT NECESSARY TO INCUR BONDED INDEBTEDNESS WITHIN CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER).

24 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 11 of 15 ends

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, CALLING SPECIAL ELECTION FOR CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER).

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, DECLARING RESULTS OF SPECIAL ELECTION AND DIRECTING

RECORDING OF NOTICE OF SPECIAL TAX LIEN FOR CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 63 (OLIVE AND OLEANDER).

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, LEVYING SPECIAL TAXES WITHIN COMMUNITY FACILITY DISTRICT NO. 63 (OLIVE AND OLEANDER).

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, AUTHORIZING THE EXECUTION AND DELIVERY OF AN

ACQUISITION AND FUNDING AGREEMENT WITH SHEA HOMES LP OF CALIFORNIA.

Notice of public hearing has been duly given and affidavits of compliance are on file in the Records Management Department.

MOTION: Moved by Council Member Dorst -Porada, seconded by Council Member Bowman and carried by unanimous vote of 5- 0, to continue the Public Hearing to the May 3, 2022 meeting.

19. A PUBLIC HEARING TO CONSIDER A RESOLUTION APPROVING FILE NO.

PSPA21-001, AN AMENDMENT TO THE PIEMONTE OVERLAY OF THE ONTARIO CENTER SPECIFIC PLAN, INCLUDING: (1) REVISING THE OVERLAY BOUNDARY, ADDING APPROXIMATELY 24.9 ACRES OF LAND LOCATED AT 4000 ONTARIO CENTER PARKWAY, TO THE OVERLAY AREA; (2) CHANGING THE LAND USE DESIGNATION ON APPROXIMATELY 4.9 ACRES OF LAND

FROM OFFICE AND ENTERTAINMENT /RETAIL TO MIXED USE, WITHIN THE

AREA BOUNDED BY FOURTH STREET TO THE NORTH, CONCOURS STREET

AND ONTARIO CENTER PARKWAY TO THE SOUTH, VIA ALBA TO THE EAST,

AND THE CAMDEN LANDMARK APARTMENTS AND VACANT LAND TO THE WEST; AND, (3) ESTABLISHING DEVELOPMENT STANDARDS AND DESIGN

GUIDELINES FOR THE MIXED USE LAND USE AREA OF THE PIEMONTE

OVERLAY AT ONTARIO CENTER SPECIFIC PLAN

The City Council considered and adopted Resolutions approving the following:

25 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 12 of 15 ends

A. The use of an Addendum to the Ontario Center Environmental Impact Report (State Clearing House No. 89041009); and
B. File No. PSPA21-001, an amendment to the Piemonte Overlay of The Ontario Center Specific Plan: (1) adding approximately 24.9 acres of land to the overlay area; (2) changing the land use designation on approximately 4.9 acres of land from oﬃce and entertainment/retail to mixed use; and, (3) establishing development standards and design guidelines for the Mixed Use land use area.

RESOLUTION NO. 2022 -034 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, APPROVING AN ADDENDUM TO THE

ONTARIO CENTER SPECIFIC PLAN ENVIRONMENTAL IMPACT REPORT,

PURSUANT TO THE REQUIREMENTS OF THE CALIFORNIA ENVIRONMENTAL QUALITY ACT, AS AMENDED, FOR FILE NO PSPA21-001.

RESOLUTION NO. 2022 -035 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PSPA21 -001, AN

AMENDMENT TO THE PIEMONTE OVERLAY AT THE ONTARIO CENTER SPECIFIC PLAN, [1] REVISING THE OVERLAY BOUNDARY TO ADD APPROXIMATELY 24.9 ACRES, COMPRISING OF THE PROPERTY LOCATED AT 4000 ONTARIO CENTER PARKWAY, TO THE OVERLAY AREA, [2] CHANGING THE LAND USE DESIGNATION ON APPROXIMATELY 4.9 ACRES

OF LAND FROM OFFICE AND ENTERTAINMENT/RETAIL TO MIXED-USE, IN AN

AREA BOUNDED BY FOURTH STREET TO THE NORTH, CONC OURS STREET

AND ONTARIO CENTER PARKWAY TO THE SOUTH, VIA ALBA TO THE EAST,

AND THE CAMDEN LANDMARK APARTMENTS AND VACANT LAND TO THE WEST, [3] ESTABLISH DEVELOPMENT STANDARDS AND DESIGN

GUIDELINES FOR THE MIXED -USE LAND USE AREA WITHIN THE PIEMONTE

OVERLAY AT ONTARIO CENTER SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF —APNS: 0210 -204-12, 0210- 204-13, 0210- 204-14, 0210-204-15, 0210-204-17, 0210-204-18, 0210-204-20, 0210-204-21, 0210-204-22, 0210-204-23, 0210-204-23, 0210-204-24, 0210-204-25, 0210-204-26, 0210-204-28, 0210-204-36, 0210-204-37, 0210-204-37, 0210-204-38, 0210-204-39, 0210-204-40, 0210-204-41, 0210-531-06, 0210-531-07, 0210-531-08, 0210-531-09, 0210-531-10, 0210-231-11, 0210-231-12, 0210-231-13, 0210-231-14, 0210-231-15, 0210-231-16, 0210-205-01.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department.

There w as one written communication from Loree Masonis . Mayor Leon opened the public hearing asking those persons interested in this item to speak. Hearing no one wishing to speak , Mayor Leon opened the item for Council discussion and closed the public hearing.

26 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 13 of 15 ends

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous v ote of 5 -0, to adopted Resolution Nos. 2022-034 and 2022-035.

20. A PUBLIC HEARING TO CONSIDER FILE NO. PCUP21 -009, A CONDITIONAL USE PERMIT TO ESTABLISH A 128-ROOM LIMITED-SERVICE HOTEL ON 1.83 ACRES OF LAND LOCATED AT 5060 EAST FOURTH STREET, WITHIN THE

FREEWAY COMMERCIAL LAND USE DISTRICT OF THE EXCHANGE SPECIFIC PLAN (APN: 0238-012-30)

That the City Council consider and adopt a Resolution approving the Conditional Use Permit, File No. PCUP21-009, establishing a 128-room limited-service hotel located at 5060 East Fourth Street.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PCUP21 -009, A CONDITIONAL USE PERMIT TO ESTABLISH AND OPERATE A 128 -ROOM LIMITED -SERVICE HOTEL ON 1.83 ACRES OF LAND LOCATED AT 5060 EAST FOURTH STREET,

WITHIN THE FREEWAY COMMERCIAL LAND USE DISTRICT OF THE

EXCHANGE SPECIFIC PLAN AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 0238-012-30.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department.

There were no written communications. Mayor Leon opened the public hearin g asking those persons interested in this item to speak. Hearing no one wishing to speak, Mayor Leon opened the item for Council discussion and continued the public hearing.

MOTION: Moved by Council Member Valencia, seconded by Council Member Dorst-Porada and carried by unanimous vote of 5-0, to continue the Public Hearing to the May 3, 2022 meeting.

ADMINISTRATIVE REPORTS/DISCUSSION/ACTION

21. A RESOLUTION AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 54 (ESPERANZA FACILITIES) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $8 MILLION AND RELATED MATTERS

The City Council consider ed and adopted a Resolution authorizing the issuance of City of Ontario Community Facilities District No. 54 (Esperanza Facilities) Special Tax Bonds, Series 2022.

A. Authorized the issuance of special tax bonds for public improvements required to facilitate the development of the Esperanza Facilities project and the Ontario Ranch development;
27 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 14 of 15 ends

B. Approve the forms of the Indenture, the Bond Purchase Agreement, the Continuing Disclosure Agreement, and the Preliminary Official Statement; C. Authorized a negotiated sale of the special tax bonds to Stifel, Nicolaus & Company, Incorporated (the "Underwriter") in accordance with the t erms of the Bond Purchase Agreement; and
D. Authorized the execution of the Indenture, the Bond Purchase Agreement, the Continuing Disclosure Agreement, a deemed final certification in connection with the Preliminary Oﬃcial Statement, a final Oﬃcial Statement and other documents in connection with the issuance of the bonds by the City Manager or the other specified authorized officers.

RESOLUTION NO. 2022 -037 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 54 (ESPERANZA FACILITIES) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $8,000,000.00, AUTHORIZING THE

EXECUTION AND DELIVERY OF AN INDENTURE, A BOND PURCHASE

AGREEMENT, AND A CONTINUING DISCLOSURE AGREEMENT,

AUTHORIZING THE DISTRIBUTION OF AN OFFICIAL STATEMENT IN

CONNECTION THEREWITH AND AUTHORIZING THE EXECUTION OF
NECESSARY DOCUMENTS AND CERTIFICATES AND RELATED ACTIONS.

There were no written communications and no speaker s to the item. Hearing no one wishing to speak, Mayor Leon opened the item for Council discussion and entertained a motion.

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous vote of 5-0, adopt Resolution No. 2022-037.

Meeting recessed at 7:26 p.m. and reconvened at 7:31 p.m.

STAFF MATTERS

City Manager Ochoa made no comments.

PUBLIC COMMENT – CONTINUED

Sussie Q Andalon, expressed her appreciation for City Council.

Celina Lopez, spoke on the need for food pantries in the City of Ontario.

Jesse Fonseca, spoke on the Ontario International Airport Authority.

28 Ontario City Council/Ontario Housing
Regular Meeting Minutes – April 19, 2022

Page 15 of 15 ends

COUNCIL MATTERS

Council Member Dorst-Porada called everyone’s attention to Agenda Item No. 6. and how the City is helping by acquiring apartment units for families.

Mayor pro Tem W apner spoke on the number of records requests submitted to the Ontario International Airport Authority and the cost it has incurred.

Council Member Bowman had no comments.

Council Member Valencia congratulated the Ontario Police Department on their success in the Baker to Vegas race.

Mayor pro Tem Wapner expressed his condolences for the passing of Mayor Leon’s brother, Richard Leon and sought consensus to adjourn in his memory.

Mayor Leon spoke on the planting of a pomegranate tree in honor of Jason Eric Scott, “Nick Nack”. He also e xpressed his appreciation for the support he has received from friends and family regarding his brother’s death.

ADJOURNMENT

Mayor Leon adjourned the meetings of the Joint Agencies at 7:56 p.m. in memory of David Richard Leon, and announced the next regular meeting to be held on Tuesday, May 3, 2022.

Respectfully submitted,

____________________________________

SHEILA MAUTZ, CITY CLERK/SECRETARY

APPROVED:

________________________________________________
PAUL S. LEON, MAYOR/CHAIRMAN
29 Department: Broadband Operations
Prepared By: Robert De Casas
Staff Member Presenting:

Jimmy Chang, Broadband General Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 3
SUBJECT:

AUTHORIZE THE PURCHASE OF EMERGENCY GENERATORS FOR ONTARIONET

POINT-OF-PRESENCE FACILITIES

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT:

The Fiscal Year 2021-22 Adopted Operating Budget includes appropriations in the Fiber/Broadband fund to purchase equipment not to exceed $150,000.

BACKGROUND & ANALYSIS:

The Broadband Department designs, constructs, and operates the OntarioNet ﬁber and wireless network to deliver broadband services to City facilities, residents, businesses, and institutions with its service provider. The service and network have connected over 1600+ residential subscribers, 130+ business/commercial customers, 14 City facilities, and over 90+ traﬃc signal cabinets. The approach has resulted in 170+ miles of ﬁber optic cable installed throughout the City, providing the infrastructure to support low-cost alternative ﬁber internet service for communities in Ontario Ranch and newly identified areas in Old Model Colony.

Emergency generators are required at OntarioNet’s Point-of-Presence (POP) facilities to continually operate a resilient broadband network. The placement of the generators at the OMUC and Anthony Munoz POP facilities will provide maximum network uptime to ensure services are uninterrupted for customers in the event of a power outage. Staﬀ issued a Bid request for the two emergency generators and received a bid response from the following:

Bay City Equipment Industries, Inc. from Rancho Cucamonga CA Total Online Protection from Temecula, CA

30 Staﬀ recommends that the purchase agreement be awarded to Bay City Equipment Industries Inc. based on their bid responsiveness, lowest bid price, and close proximity to the project areas. 31 Department: Community Life & Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 4
SUBJECT:

AN ORDINANCE ADDING CHAPTER 33 TO TITLE 5 OF VOLUME I TO THE ONTARIO

MUNICIPAL CODE, ESTABLISHING A PUBLIC ART PROGRAM, ESTABLISHING A

PUBLIC ART ADVISORY COMMITTEE, AND INCLUDING A DEVELOPMENT FEE TO

SUPPORT PUBLIC ART, AND FINDING THE ACTION EXEMPT FROM CEQA

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

Development fees are based on building activity and vary each year. Based on historical data, fees collected for public art from new development and tenant improvements from prior years would have generated: $240,000 in ﬁscal year 2019-20, $290,000 in ﬁscal year 2020-21, and $130,000 for current available development in fiscal year 2021-22.

BACKGROUND & ANALYSIS:

This is a second reading proposing the adoption of this draft Ordinance which establishes a Public Art Program, Committee, and development fee. On May 3, 2022, there was a Public Hearing held to consider this draft Ordinance. If adopted, the fees would be collected beginning thirty (30) days after adoption of the Ordinance.

On December 6, 2016, the City Council introduced a Reference I, Public Art Program, to the City of Ontario Development Code to promote public art. As the City continues to mature, the ﬁner arts have taken on a greater signiﬁcance in the community with the introduction of art into several City projects; most notably in Ontario Town Square, at the Anthony Munoz Community Center, and the increased visitation of our local museums (Ontario Museum of History & Art and the Chaﬀey Community Museum of Art), as well as other art-related events such as the Ontario Festival of the 32 Arts, and the Culture Fest. As a result, the Public Art Program was created to properly outline guidance on the installation of public displays. Since its inception in 2016, Staﬀ has continued to reﬁne the criteria of the Program to address provisions for placement and/or donations of artwork to the City for display on public property in the Ontario Development Code.

The Community Life & Culture Agency and the Planning Department recommend that the Public Art Program is best suited to be placed in the Municipal Code instead of the Development Code. The Public Art Advisory Committee, not the Planning Commission, will be the primary body that considers City-commissioned public art projects. The Historic Preservation Commission would still have a role to evaluate proposed public art projects that are proposed in historic districts or upon historic resources.

This Ordinance builds upon the Public Art Program existing in the Development Code, but places the Public Art Program in the Municipal Code. New additions include the following:

A. Expand the deﬁnition of Artwork to include additional projects, including earthworks, performing arts, literary arts, special events, festivals, other arts and culture programming, and other visual arts. Art is deﬁned as both temporary and permanent installations and does not include mass-produced objects.

B. Expand the Public Art Program Advisory Committee from three members to ﬁve.

Members shall be comprised as follows:
1 .

Three (3) of the ﬁve (5) members shall be given priority consideration from each of the following organizations, provided that the City has received an application from at least one representative from each organization. a
.

A representative from the Chaffey Community Museum of Art; b
.

A representative from Ontario Heritage
c
.

A representative from the Ontario Museum of History & Art Associates; 2 .

The remaining two members, or more if the City has not received an application from each of the three organizations listed above, may be selected from the following:
a
.

Local non-profit historic preservation advocacy organizations; b
.

Local arts educators
c
.

Local artists;
d
.

Local performers;
e
.

Arts professionals;
f
.

College-level arts students; and
g
.

Architects, landscape architects, and other design professionals C. Create a new Public Art in Development program to collect a minimal fee from all new commercial and industrial development valued at $5,000,000 or more, as well as tenant improvements on commercial and industrial developments valued at $500,000 or more, or allow the development or tenant improvement to install art as part of the project. The fee structure is as follows:

33 Eligibility
On-Site Fee Option
City Fee Option
New
commercial/industrial
development $5,000,000
or more.

Developer installs On-
Site public art display
valuated at 1% of the
total final project
valuation as
determined by the
Building Official or
designee.

The developer provides
the City $10,000 for City
to deposit into the Public
Art Fund to be used for
the installation of a new
public art display or
maintain, upgrade, or
expand an existing
display.

Tenant Improvement on
commercial/industrial
development $500,000 or
more.

Developer installs On-
Site public art display
valuated at 1% of the
total final project
improvement
valuation as
determined by the
Building Official or
designee.

Developer provides the
City $5,000 for City to
deposit into the Public Art
Fund to be used for the
installation of a new
public art display or
maintain, upgrade, or
expand an existing
display.

D. Establish some basic regulations for the installation of murals. City- commissioned murals on City property will need to be approved by the Public Art Program Advisory Committee, and the Ordinance outlines some basic standards for the Committee to consider when reviewing a mural proposal. Non-City-commissioned murals will be subject to an objective design checklist established, and amended from time to time, by Resolution, and subject to ministerial City review. The Ordinance establishes an application of $100 per non-City-commissioned mural application, which may be amended from time to time by Resolution.

ENVIRONMENTAL REVIEW:

The project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15061(b)(3) 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 seen 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.
34 ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, ADDING CHAPTER 33 TO TITLE 5 OF VOLUME I TO THE

ONTARIO MUNICIPAL CODE, ESTABLISHING A PUBLIC ART

PROGRAM, ESTABLISHING A PUBLIC ART ADVISORY COMMITTEE,

AND INCLUDING A DEVELOPMENT FEE TO SUPPORT PUBLIC ART,
AND FINDING THE ACTION EXEMPT FROM CEQA.

WHEREAS, the City of Ontario (“City”) desires to introduce art and artworks into the community; and
WHEREAS, public art enriches the lives of City residents and visitors by exposure to art in various forms; and
WHEREAS, the City encourages public dialogue and interaction through a public art program; and
WHEREAS, the City desires embracing a broad range of artworks, which are reflective of the overall diversity of the City’s residents and visitors; and WHEREAS, the City desires to establish a public art program that would allow and regulate a variety of artworks, including murals, that are either developed on City-owned public property or on private property as part of a development project; and WHEREAS, the City desires to impose a requirement on certain commercial and/or industrial developments to install public art as part of the project or to pay a fee to the City which would support the City’s efforts in installing public art throughout the City.

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

SECTION 1. The recitals above are true and correct and are hereby incorporated herein by this reference.

SECTION 2. Chapter 33 is hereby added to Title 5 of Volume I of the Ontario Municipal Code to state, in full, as follows:
“Chapter 33: Public Art Program
5-33.01 Purpose
5-33.02 Public Artworks: Definitions
5-33.03 Public Art Program Advisory Committee
5-33.04 Policy for the Gift or Long Term Loan of Public Art 5-33.05 Public Art in Commercial and Industrial Development Projects 5-33.06 Murals
35 Sec. 5-33.01. Purpose
This Chapter may be known and cited as the “Ontario Public Art Program.” It is the goal of the City’s Public Art Program to promote public art and art in public places, as a cultural resource for the community, and act as a mechanism to enhance the City’s commercial vitality and economic stability. Furthermore, it is intended that the Ontario Public Art Program will serve to enrich the community aesthetic and built urban environment, by making available to the public a diverse collection of artworks throughout the City. The aforementioned goals will be realized through bringing contemporary art into the environment and life of Ontario, enriching the lives of City residents and visitors by the exposure to art in various forms, encouraging both emerging and established artists living in Ontario and the Ontario region by supporting and purchasing their work, acquiring a distinguished collection of art representing varying genres, styles, scales, mediums, forms, and intent, and reflective of trends and disciplines in art on a local, regional, national, and international level, integrating artists into the City’s design process, encouraging public dialogue and interaction through a public art program; embracing a broad range of artworks, which are reflective of the overall diversity of current works in the field of visual arts, enriching the quality of life and economic vitality of Ontario, and further defining distinct characteristics of neighborhoods.

Sec. 5-33.02. Public Artworks: Definitions.

As used in this Chapter, the words, terms, and phrases listed below in correct alphabetical order, shall have the following meanings:
(a) “Artworks” means original pieces of art, including limited editions, not limited by medium used. It may include paintings, sculptures, murals, mosaics, and fountains.

These categories may be realized through such media as steel, bronze, stained glass, concrete, wood, ceramic tile, stone, and other suitable materials. Artworks may also include earthworks, performing arts, literary arts, special events, festivals, and other arts and culture programming and/or visual arts not specifically outlined herein, as may be deemed appropriate by the Public Art Program Advisory Committee. Artworks include both temporary and permanent projects. Artworks does not include objects that are mass produced.
(b) “Commercial Message” means any message that advertises a business conducted, services rendered, or goods produced or sold. (c) “Commercial project” means any site, structure, facility, or land use allowed pursuant to Table 5.02-1 (Land Use Matrix) of the City of Ontario Development Code, within any of the commercial zoning districts established under Section 5.01.005.B (Commercial Zoning Districts) of the Development Code, or within the commercial portion of any residential mixed-use development.
(d) “Industrial project” means any site, structure, facility, or land use allowed pursuant to Table 5.02-1 (Land Use Matrix) of the City of Ontario Development Code, within any of the industrial zoning districts established under Section 5.01.005.D (Industrial Zoning Districts) of the Development Code, or within the industrial portion of any nonresidential mixed-use development.
36 (e) “Original Art Mural” means a unique, hand-painted, hand-tiled, or digitally printed image on the exterior wall of a building that does not contain any commercial message.
(f) “Public Place” means any area on public property, either interior or exterior, which must be accessible and visible to the general public. (g) “Project Applicant” means the property owner, developer or other responsible party proposing a project requiring an art component. (h) “Project Improvement Valuation” means the value of the tenant improvements as determined by the then-current City total valuation methodology. (i) “Project Valuation” means the value of the project as determined by the then-current City total valuation methodology.
(j) “Project Site” means the location of the improvements being developed. (k) “Public Art on City Property” means original works of art located on, affixed to, or applied on City-owned property.
(l) “Private Art for Public Enjoyment” means original works of art located on, affixed to, or applied on private property that are accessible and/or visible to the general public.
(m) “Public Art Program Advisory Committee” means the five-member advisory committee appointed by the City Council that is responsible for ensuring that the criteria established by this Public Art Program have been met.
(n) “Vintage Original Art Mural” means an original art mural that existed prior to the enactment of this Chapter.

Sec. 5-33.03. Public Art Program Advisory Committee.
(a) There is hereby created and established a Public Art Program Advisory Committee. The Public Art Program Advisory Committee shall be comprised of five members who shall be appointed by the City Council.
(b) Members of the Public Art Advisory Committee shall be comprised as follows:
(1) Three (3) of the five (5) members shall be given priority consideration from each of the following organizations, provided that the City has received an application from at least one representative from each organization. (A) A representative from the Chaffey Community Museum of Art; (B) A representative from Ontario Heritage;
37 (C) A representative from the Ontario Museum of History & Art Associates;
(2) The remaining two (2) members, or more if the City has not received an application from each of the three (3) organizations listed in Section 5-33.03(b)(1)(A)- (C), may be selected from the following:
(A) Local non-profit historic preservation advocacy organization; (B) Local arts educators;
(C) Local artists;
(D) Local performers;
(E) Arts professionals;
(F) College-level arts students; and
(G) Architects, landscape architects, and other design
professionals.
(3) Notwithstanding any contrary provision in the Ontario Municipal Code, members of the Public Art Advisory Committee may be non-residents of the City, subject to the limitation that no more than two (2) of the five (5) members may be non- residents of the City.
(4) The City Councilmember Liaison to the Ontario Museum of History & Art, shall serve as an ex officio, non-voting member. (c) The process for appointment to the Public Art Advisory Committee shall be as follows. A call for applications will be sent out for interested appointees. Community Life & Culture staff will review the applications received and determine whether the applicants meet the basic requirement from this Section. Community Life & Culture staff will then present the qualified candidates to the City Council for their review and nomination. The Mayor shall appoint the members of the Committee, subject to ratification by a vote of the entire City Council. Each Councilmember may suggest one member from the list of qualified candidates for the Mayor to appoint to the Committee. (d) Members of the Public Art Program Advisory Committee shall serve a term of four (4) years. A person may serve multiple terms.
(e) Powers and Duties. The Public Art Program Advisory Committee shall ensure that all criteria established by this Public Art Program have been complied with.

The Advisory Committee shall review all requests for the installation of public art, examining proposals for public safety, weather resistance, balance with the program, public response, proper lighting, public accessibility, installation methods, proportion, composition, the artist’s previous experience, art training, and exhibition record. Advisory Committee support shall be provided by the Museum, Arts & Culture Director. 38 (1) Construction and Installation of Public Artworks (Permanent). The following procedure is to be followed in the construction of on-site permanent public artworks:
(A) The composition of the proposed artwork shall be of a permanent type of material in order to be a durable against vandalism, theft, and weather, and require a low level of ongoing maintenance.
(B) The artwork shall be related in terms of scale, material, form and content to immediate and adjacent buildings and landscaping so that it complements the site and surrounding environment. A Certificate of Appropriateness pursuant to Ontario Development Code Section 4.02.050 may be required to ensure that the artwork does not cause an adverse impact to historic resources. (C) The artwork shall be constructed by persons experienced in the production and installation of such artwork.
(D) The artwork shall be permanently affixed to the property unless it is designated a temporary exhibit in the scope of the project when commissioned. (E) Installation of the artwork shall be planned and implemented to enhance the piece and allow for unobstructed viewing from as many angles as possible.
(F) The City shall obtain from the artist, complete maintenance instructions, including methods to maintain the piece and the frequency of maintenance. (G) Each piece of artwork shall be identified by a plaque at the site of an appropriate size and scale to the piece. The plaque shall be made of cast metal and then placed in a location near the art piece listing the title of the piece, the artist, and the date as well as the city and the art in public places program. (2) Construction and Installation of Public Artworks (Temporary). The following procedure is to be followed in the construction of on-site temporary public artworks:
(A) The composition of the proposed artwork shall be of a type of material in order to be a durable against vandalism, theft, and weather, and require a low level of maintenance.
(B) The artwork shall be related in terms of scale, material, form and content to immediate and adjacent buildings and landscaping so that it complements the site and surrounding environment.
(C) The artworks shall be constructed by persons experienced in the production and installation of such artwork.
39 (D) The method of attachment or securing the artwork shall be identified.
(E) Installation of the artwork shall be planned and implemented to enhance the piece and allow for unobstructed viewing from as many angles as possible.
(F) The City shall obtain from the artist, complete maintenance instructions, including methods to maintain the piece and the frequency of maintenance. (G) Each piece of artwork shall be identified by a plaque at the site of an appropriate size and scale to the piece. The plaque shall be made of cast metal and then placed in a location near the art piece listing the title of the piece, the artist, and the date as well as the city and the art in public places program. (H) Any security measures needed to secure the artwork, the estimated cost of the security, and a source of funding for the security shall be identified. (I) Any temporary artwork must include a deinstallation plan that clearly identifies which parts of the artwork (if any) need to be returned to the artist and which may be disposed of after the term of the installation.

Sec. 5-33.04 Policy for the Gift or Long Term Loan of Public Art. (a) Purpose. Unsolicited gifts or long term loans to the City can be an important part of the City's art collection. The purpose of this Section is to ensure that proposed gifts of public art undergo a review process to ensure that acceptance of such gifts takes place in a fair and uniform manner. Furthermore, it is the intent of this Section to ensure that potential gifts of public artworks are evaluated as carefully as artworks that are commissioned, and that such artworks undergo a careful review process that evaluates a gift based upon acceptance criteria established according to the purposes, guidelines, goals, and selection process that guides artworks that are commissioned. (b) Applicability. This Section applies to all unsolicited offers of donation or long term loans of artworks to the City of Ontario.
(c) Procedures for Gifts or Long Term Loans. For each proposed gift or long term loan of public art, a written proposal or letter of intent shall be submitted to the City Manager. The City Manager shall refer the proposal to the Public Art Advisory Committee for review and recommendation. The City Council’s decision shall be final and conclusive.

The proposal shall consist of the following items:
(1) Completed application form;
(2) Photographs, drawings, models, or designs of proposed artwork; (3) Description and samples (if available) of materials and colors; (4) Appraisal by a professional art appraiser (for long term loans); 40 (5) A site plan, to include photographs of site and neighborhood, drawings of the proposed site with the project to scale. If located within a historic district or on any other historic resource, a Certificate of Appropriateness may be required pursuant to Ontario Development Code Section 4.02.050;
(6) Proposed transportation/delivery schedule, and request of City responsibility for transport of the artwork to the City, if applicable; (7) Proposed installation schedule;
(8) Maintenance manual, including the long-term intent of artist for the preservation and maintenance of artwork;
(9) Maintenance schedule prepared by professional art curator; (10) Estimated budget for installation and maintenance; (11) Resume and examples of artist’s previous work;
(12) Duration of the loan (if applicable)
(13) Proof of insurance sufficient to meet the requirements of the City’s Risk Manager, if necessary; and
(14) Building permits, if necessary.
(d) Criteria for the Evaluation of Proposed Gifts or Long Term Loans of Public Art. The following criteria shall be used in evaluating proposed gifts of long term loans of public art for review and acceptance by the City:
(1) Artworks may be existing or proposed works of art;
(2) Artworks must be one-of-a-kind or part of an original series.

Reproductions of originals are not considered eligible for acceptance; (3) Gifts must maintain high artistic standards and are appropriate in relationship or historical relevance to the City;
(4) The proposed location (if specified) is available and is appropriate to the artwork's content, scale, and material. Factors to be considered in selecting an appropriate site include type of artwork, relationship to architectural and natural features, visibility and public access, traffic patterns, future development plans for the area (if known), and public use patterns of the site and surrounding area. If a location is on a historic building, site, landscape or within a district issuance of a Certificate of Appropriateness may be required pursuant to Ontario Development Code Section

4.02.050;
(5) Restrictions from the donor, if any;
41 (6) Artwork proposals must demonstrate how the surrounding community has been involved and consulted in the process; (7) Costs of installation and maintenance and repair over the expected life of the artwork shall be defined;
(8) Artistic quality (vision, originality and craftsmanship); (9) Context (architectural, historical, geographical and socio-cultural context of the site);
(10) Quality and permanency of materials (if ephemeral material: is appropriate documentation included?);
(11) Safety;
(12) Diversity of artists (gender, race, culture) representation in the existing collection of publicly-accessible artworks; and (13) Diversity of artworks (media, scale, style, intention) in the existing collection of publicly accessible artworks.
(e) Long Term Loans of Artwork. Upon recommendation by the Public Art Program Advisory Committee and acceptance by the City Council, long term loans of artwork may be displayed upon execution of a contract between the City and the artist clearly identifying the terms and conditions of the loan and the rights and responsibilities of all parties.
(f) Acceptance of Gifts of Public Art. Upon recommendation by the Public Art Program Advisory Committee and acceptance by the City Council, gifts of artworks will be deemed part of the permanent collection of the City, and registered with the City’s Department of Museum Arts & Culture, once the donor has supplied the City with the following:
(1) Written certification of the installation of the artwork, if completed by artist;
(2) An executed contract between the City and the artist transferring title of the artwork and clearly defining the rights and responsibilities of all parties; (3) Written instructions for the care, maintenance, preservation, and handling of the artwork, prepared with the assistance of a professional art conservator to be provided by the artist;
(4) A sworn statement of no liens, claims, or other encumbrances associated with the artwork;
(5) A written assignment of any and all warranties for materials used, or labor performed by subcontractors or other persons; and 42 (6) A written assignment conveying, at a minimum, a perpetual license for the City to reproduce the artwork in digital or print medium for City purposes. The written assignment may include, should it be the artist’s desire, the conveying of all rights, including copyrights and waiver of all rights under the Visual Artist's Rights Act of 1990, and its amendments (Section 106A of the United States Copyright Act; Pub. L. No. 101-650).
(g) Title and Ownership. Permanent gifts of artwork to the City shall become the property of the City once an Agreement for Acceptance Donated Artwork has been fully executed and the Donor has delivered the Bill of Sale/Transfer of Title. At such time, all rights of title and ownership shall be conveyed to the City, and all future decisions regarding the use and continued ownership of the artwork shall be under the sole discretion of the City. As owner of the artwork, the City may exercise any and all legal rights of ownership, including, but not limited to, sale, relocation, or removal of the artwork. (h) Maintenance. When artwork gifts are situated at or on City owned or occupied properties or facilities, the City shall assume its continued maintenance. (i) Removal, Relocation, or Deaccession of an Artwork. Artworks gifted to the City may be relocated, removed, or deaccessioned from the City's public art collection if the artwork becomes a hazard or liability, if the approved terms of acceptance are not fulfilled, or for any other reason as determined by the City Council, upon recommendation by the Public Art Program Advisory Committee.
(j) Exemption. Gifts of state presented to the City by foreign governments or by other political jurisdictions of the United States that may be accepted by the City Council or City Manager on behalf of the City. Permanent placement of any such artworks will be determined jointly by the City Manager and the Public Art Program Advisory Committee. If not provided by the donor, maintenance of the art will be the responsibility of the host City department.

Sec. 5-33.05 Private Art for Public Enjoyment in Commercial and Industrial Development Projects.
(a) Purpose.
(1) The purpose of this Section is to establish a program for private art for public enjoyment in which private developers shall be required to integrate artworks throughout the commercial and industrial sectors of the City, for the benefit of the general public. The goals of this program are as follows:
(A) Differentiate the City of Ontario as a special place to live, work, play, visit, and invest;
(B) Strengthen cultural awareness, creativity, and innovative thinking in the community;
(C) Integrate the vision of artists with the perspective of other design professionals into the planning and design of the urban landscape; 43 (D) Ensure public artworks are visually accessible to every member of the community;
(E) Provide an acceptable counterbalance to what many consider to be the undesirable effects of commercial and industrial development (e.g. construction noise, traffic, congestion, and pollution); and
(F) Build a diverse collection of outdoor artworks by qualified artists and ensure the collection is continually maintained. (2) The public art in commercial and industrial development projects program provides developers a way to make a lasting and visible contribution to the community and alleviate the undesirable effects that may be associated with commercial and industrial development.
(b) Applicability.
(1) All new commercial and industrial development projects valued at $5,000,000 or more, and new tenant improvements constructed in or on new or existing commercial and industrial buildings valued at $500,000 or more, shall be subject to the requirements of this Section. This Section does not apply to the residential portion of mixed-use projects.
(2) All residential projects and public facilities projects constructed by the City or by nonprofit organizations shall be exempt from the requirements of this Section.
(c) Minimum Public Art Allocation.
(1) The required minimum public art allocation fees shall be as follows, and may be amended from time to time by Resolution:

Eligibility On-Site Fee Option City Fee Option
New
commercial/industrial
development
$5,000,000 or more.

Developer installs On-Site
public art display valuated
at 1% of the total final
project valuation as
determined by the building
official or designee.

Developer provides the City
$10,000 for City to deposit into the
Public Art Fund to be used for the
installation of a new public art
display or maintain, upgrade, or
expand an existing display.

Tenant Improvement on
commercial/industrial
development $500,000
or more.

Developer installs On-Site
public art display valuated
at 1% of the total final
project improvement
valuation as determined by
the building official or
designee.

Developer provides the City
$5,000 for City to deposit into the
Public Art Fund to be used for the
installation of a new public art
display or maintain, upgrade, or
expand an existing display.
44 (2) All projects created through the On-Site Fee Option must be reviewed and approved by the City and shall be installed in compliance with all federal, state, and local applicable laws and regulations.
(3) All projects installed through the On-Site Fee Option must be maintained by the developer during the life of the buildings and structures. (4) If the artwork installed pursuant to this Section is altered, removed, is not maintained in good condition, or is not provided as required, the City may exercise any and all available legal and/or equitable remedies.
(d) Penalties. Violations of this Section may be subject to the penalties set forth in Chapter 2 of Title 1 of Volume I of the Ontario Municipal Code and/or subject to revocation of the entitlements for the development project.

Sec. 5-33.06 Murals.
(a) Murals commissioned by the City may only be installed and maintained if they have been approved by the Public Art Program Advisory Committee. Other murals not commissioned by the City will be subject to an objective design checklist established, and amended from time to time, by Resolution, and subject to ministerial City review. Murals may only be located in commercial, industrial, city-owned public, and private property. The Advisory Committee shall have the authority to review and approve City commissioned murals in accordance with the procedures and standards outlined in this Chapter. (b) Standards. The Public Art Program Advisory Committee shall ensure that City commissioned murals are consistent with the following standards:
(1) Murals shall be an original art mural, a work of art, that is hand-painted, hand-tiled or digitally printed image or digital display system on the exterior surfaces of a building or site designed as a work of art. The image cannot be advertising or other commercial message with brand name, product name, abbreviation thereof, company or business name or logo, trademark, brand imagery or products and services for sale. The Public Art Program Advisory Committee will determine if an image, painting pattern, or other element on the exterior of a building or site is a work of art. If the Public Art Program Advisory Committee determines that the image, painting pattern, or other element is not a work of art, then other applicable law may be applied such as sign or building design guidelines by other City departments.
(2) Murals must be durable and capable of being well-maintained. (3) Murals shall not compromise the proper function of any building or use or diminish public safety.
(4) Murals shall not incorporate recognized signs of hatred or discrimination against any race, color, sex, age, national origin, disability, religion, ancestry, marital status, familial status, gender identity or expression, or sexual orientation. (5) Murals shall not be obscene or harmful to minors as defined by law. 45 (6) A Certificate of Appropriateness shall be required if the mural is on a historic building or site pursuant to Ontario Development Code Section 4.02.050. (c) Application fee. There shall be an application fee of $100 per non-City- commissioned mural application, which may be amended from time to time by Resolution. (d) An Original Art Mural is not considered a sign as defined in the Ontario Development Code. However, nothing contained in this Chapter is intended to change the rules governing the determination of whether a mural may be placed on a historic building.
(e) A City commissioned mural shall remain in place, without alteration, for a minimum of six (6) months.
(f) Removal. A City commissioned mural may be removed after six (6) months from the date of registration, so long as it is not a registered historic landmark itself or associated with a registered historic landmark property, under any the following circumstances as determined by the Executive Director of the Community Life & Culture Agency:
(1) The property is sold;
(2) The structure or property is substantially remodeled or altered in a way that precludes continuance of the mural;
(3) The property undergoes a change of use authorized.” SECTION 3. The City Council hereby directs the Planning Director to proceed with a Development Code Amendment repealing the Public Art provisions from the Development Code following approval of this Ordinance.

SECTION 4. If any section, subsection, subdivision, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such decision shall not affect the validity or effectiveness of the remaining portions of this ordinance or any part thereof.

The City Council hereby declares that it would have adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid or ineffective.

SECTION 5. This Ordinance shall become effective thirty (30) days after its adoption by the City Council.

SECTION 6. CEQA. The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15358 (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Moreover, the City Council finds that this Ordinance is 46 also exempt under CEQA pursuant to Guidelines Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment).

SECTION 7. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 17th day of May 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
47 STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 3208 was duly introduced at a regular meeting of the City Council of the City of Ontario held May 3, 2022 and adopted at the regular meeting held May 17, 2022 by the following roll call vote, to wit:

AYES: MAYOR/COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. 3208 duly passed and adopted by the Ontario City Council at their regular meeting held May 17, 2022 and that Summaries of the Ordinance were published on May 10, 2022 and May 24, 2022, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
48 Department: Library
Prepared By: Lacey A Rightmer
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 5
SUBJECT:

POLICY FOR NAMING OF ONTARIO CITY LIBRARY FACILITIES, ROOMS, OR

COLLECTIONS

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council adopt the Administrative Policy for naming of Ontario Library facilities, rooms, or collections.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT:

There is no direct fiscal impact associated with the adoption of this policy.

BACKGROUND & ANALYSIS:

The Ontario City Library occasionally receives requests to name or rename library facilities, rooms, or collections. The name given to a library facility, room, or collection is important to the institution and the community, as such it requires thoughtful consideration.

At the September 21, 2021 City Council meeting, a community member submitted a petition with signatures to request the naming of the children's room at the Ovitt Family Community Library.

Following that meeting, the community member made the same request at the October 12, 2021 meeting of the Ontario City Library Board of Trustees. Since the library did not have an existing policy in place to address the request, an Administrative Policy was written. The proposed Administrative Policy was presented to the Ontario City Library Board of Trustees at the March 8, 2022 meeting. After review, the Ontario City Library Board of Trustees recommended that the Administrative Policy be adopted by the Ontario City Council. The Administrative Policy is summarized below:

Application Process and Procedures

The initiation of a request to name a facility, room, or collection (hereafter referred to as a facility) will be through a written application. It can be completed by one or more city residents, business owners, property owners, or City of Ontario staﬀ. The application must identify the facility and the proposed name change, as well as include at least three letters of support from community 49 members, and attach articles, documents, and other evidence demonstrating community support.

Applications must meet the naming criteria outlined in the attached Administrative Policy.

The Library Director and Community Life & Culture Executive Director will review submitted applications to ensure they are consistent with the naming criteria. If approved, the application will be presented to the Ontario City Library Board of Trustees by the Library Director or their designee, no more than 60 days after receipt of the application. Public Notice will be given to community members allowing the opportunity to speak in favor or opposition of the application at the Ontario City Library Board meeting. The Library Board will review the application, and vote on a recommendation to City Council.

Ontario City Council will vote to approve, modify, or deny the application. All decisions concerning the naming or renaming of a library facility are at the discretion of the City Council. Incomplete applications or those otherwise inconsistent with the Administrative Policy will be returned within 60 days of receipt. Applications can be resubmitted.

Naming Criteria

The following criteria have been established to assist the Library Board and City Council in the decision-making process regarding the naming of a facility. Priority will be given to:

Historic names
Places and feature names
Individuals of note
Longstanding affiliation with the City of Ontario
Significant community service

The Administrative Policy also outlines reasons for exclusions. Names that promote an unhealthy lifestyle, including but not limited to: tobacco, alcohol, gambling, drugs, or that promote a political organization or affiliation will not be considered.

The Administrative Policy lays out the termination of naming rights. City Council can reject any naming request at any time during the approval process. City Council may remove a name from a library facility when deemed to be in the best interest of the City of Ontario. City Council may suspend or terminate the use of a name in circumstances involving fraud, poor moral character, criminal activity, or other actions which would reﬂect poorly on the city. Should an organization or group cease to exist, its naming rights may be terminated.

To ensure the Ontario City Library remains consistent and intentional when presented with facility naming requests, we recommend that the City Council adopt the attached Administrative Policy for the naming of Ontario Library facilities, rooms, and collections. 50 1. PURPOSE
The name given to a library facility, room or collection is important, as that name will come to symbolize the facility and the City of Ontario. Due to the high-profile nature of public facilities such as libraries, diligence and discretion must be exercised in their naming. Because of this, selecting a name should receive great consideration. Significant review and a high standard of care must be applied in the use of a name of an individual, organization, or business.

In addition, the city periodically receives requests to name or rename public facilities.

This policy establishes a fair, objective, and consistent procedure for formally naming or re-naming Ontario City Library facilities, rooms, or collections.

2. SCOPE
The scope is the naming of Ontario City Library facilities, rooms, or collections.

3. POLICY

3.1. Naming or Renaming Existing Library Facilities, Rooms, or Collections

3.1.1. A request to name or rename a library facility, room, or collection may be initiated by one (1) or more city resident(s), business owner(s), property owner(s) or city staff. The requesting party will use the Commemorative Dedication and Names Application (“Application”) which shall be submitted to the Library Director.

3.1.2. The Application shall identify the library facility, room, or collection, state the reason(s) for the proposed name change, and specify the proposed name(s). The Application must include at least three letters of support from community members, articles, documents, and other evidence demonstrating community support.

3.1.3. The Library Director and Executive Director of Community Life and Culture shall review the Application and determine whether it is consistent with the policy. If consistent, the Application will be included in the agenda packet for a Library Board of Trustees meeting within 60 days of receipt of the Application. Prior notice will be given to the Library Board that the item will be on an upcoming agenda. The Library Director or designee will present a report and the Application to the Library Board of Trustees. Prior notice will be given to allow community members an opportunity to speak during public comment at the Library

SUBJECT
Naming of Ontario City Library Facilities, Rooms or
Collections.

Number: Property & Equipment, PE-001
Effective Date: [Date]
Policy Owner(s): Helen McAlary,
Executive Director, Community Life and
Culture
Approved by: [Approver name, Title]
51 Board of Trustees meeting.

3.1.4. Applications that are denied, determined to be incomplete, are submitted without the items of support as listed in section 3.1.2, or are otherwise inconsistent with this policy will be returned to the applicant. Applicants will receive a written explanation for the return within 60 days of receipt of the Application. The applicant may resubmit the Application at any time with new or additional information to correct the identified insufficiencies.

3.1.5. The Library Board of Trustees shall review the submitted Application and report and shall vote on a recommendation to the City Council. The Library Board of Trustees may recommend that City Council approve, modify, or deny the Application together with the reasons therefor.

3.2. Review by City Council

3.2.1. The Application, agenda report, and Library Board of Trustees’ recommendation will be presented to the City Manager’s Office.

3.2.2. The City Manager or designee will present the Application to City Council in the form of a City Council agenda report. Community members in support of the Application may be asked to speak during public comment at the City Council meeting.

3.2.3. All decisions with respect to the naming or renaming of library facilities, rooms, or collections will be at the discretion of the City Council, which shall determine whether a library facility, room, or collection shall be named or renamed.

3.3. Naming Criteria for All Library Facilities, Rooms, or Collections

3.3.1. Priorities to be considered in naming library facilities, rooms, or collections shall be as follows:
a. Historic Names. Names of historic events, groups or organizations that had a positive and significant local, regional, or national impact. Special consideration can be given to events, groups or organizations celebrating Ontario’s history/heritage. b. Places and Feature Names. The following criteria will be used in evaluating the use of places or feature names:
i. Recognizable area or neighborhood, e.g. Ontario Ranch. Names that aid in locating a library facility, room, or collection are acceptable. If the facility is located on a park or school site, the facility need not share the name of the park or school site.
ii. Theme Names. If a facility is located in an area with a specific theme, due consideration may be given to that theme, such as a farming or an old west theme.
iii. Natural Features. Natural and geographic features, such as creeks and terrain.
iv. Horticultural features. Horticultural features or characteristics of a certain area such as orange grove or grape vines.
52 c. Individuals. The following criteria will be used in evaluating the use of names of persons (whether living or deceased):
i. Persons who have made positive contributions at the local, regional, or national level of major significance. Such individuals may include:

1. Deceased persons of significance. Special consideration can be given to former or deceased Ontario residents.

2. Significant authors, musicians or artists who were born or resided in Ontario at some point in time.

3. National and/or local heroes.
ii. General Criteria. Names of persons, groups or organizations having longstanding affiliation with the city of significant community service, with involvement or contribution beyond the ordinary interest level whose efforts have:

1. Enhanced the quality of life and well-being of Ontario residents.

2. Contributed to the preservation of Ontario history or culture.

3. Made exemplary or meritorious contributions to Ontario or its residents.

4. Created a significant or exemplary body of literature or art.

5. Contributed to the acquisition, development, or
conveyance of land, buildings, structures, or other
amenities to the city or community.

6. Special consideration can be given to former or current Ontario residents.
iii. Living Persons. Facilities, rooms, or collections may be named after living persons only after a thorough study has been completed by city staff relative to the individual’s background and qualifications pursuant to the criteria in Section 3.3.1.c.i-ii subsection of this policy. iv. Groups and Organizations. Facilities, rooms, or collections may be named after groups or organizations pursuant to the criteria set forth in Section

3.3.1.c.i of this policy.
v. Alignment. The significance and notability of an individual should align with the suggested facility, room, or collection. The contributions to the community or mission of the library should be commensurate with the facility, room, or collection being named.
53 3.4. General Conditions and Exclusions
a. Naming that promotes an unhealthy lifestyle, including but not limited to drugs, alcohol, tobacco use, or gambling, will not be considered. b. Naming that promotes any political organization or affiliation will not be considered.

3.5. Termination of Naming Rights

3.5.1. Due to the high-profile nature of public facilities such as libraries, diligence and discretion must be exercised in their naming. Significant review and a high standard of care will be applied in the use of a name of an individual, organization or business. The City of Ontario reserves the right to reject any sponsor requests or naming requests at any time during the approval process.

3.5.2. The City Council may remove a name from a library facility, room, or collection when deemed by the City Council to be in the best interest of the City of Ontario.

3.5.3. The City Council reserves the right to suspend and/or terminate the use of a name in the case of circumstances involving fraud, poor moral character, criminal activity, or other actions which would reflect poorly on the reputation, image, or good-will of the City of Ontario.

3.5.4. Should an organization or group cease to exist, their naming rights may be terminated.
54 Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 6
SUBJECT:

A RESOLUTION APPROVING A PURCHASE AND SALE AGREEMENT BETWEEN THE

SUCCESSOR AGENCY TO THE ONTARIO REDEVELOPMENT AGENCY AND HDC CONSTRUCTION, INC. IN ACCORDANCE WITH GOVERNMENT CODE SECTION 37350 ET. SEQ.

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the Agency Board adopt a Resolution approving a Purchase and Sale Agreement (“Agreement”) between the Successor Agency to the Ontario Redevelopment Agency (“Successor Agency”) and HDC Construction, Inc., (“Developer”) of Ontario, California (on file with the Records Management Department); and authorize the Executive Director to execute the Agreement and all other documents required for implementation of the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:

The City will convey approximately 4,350 square feet of real property located at 213 North Fern Avenue for a purchase price of $100,000, all of which will be disbursed to the local taxing entities within the former Center City Redevelopment Project Area. The sales price is supported by an independent appraisal completed by a certiﬁed MAI appraiser and represents the current fair market value of the property.

BACKGROUND & ANALYSIS:

In 1992, the property located at 213 North Fern Avenue (a location map is provided for reference as Exhibit “A”) was acquired by the former Redevelopment Agency in connection with the implementation of the Center City Redevelopment Project Area Plan (“Redevelopment Plan”). The Redevelopment Plan contained several broad goals and objectives including but not limited to, assisting in the elimination of blighting conditions, encouraging private investment, increasing availability of housing stock, and expanding the community’s tax base and economic vitality.

The property is located on the southwest corner of “B” Street and Vesta Street, and is designated as Downtown Mixed-Use within Land Use Area 3 of the Holt Boulevard District. 55 The Developer is proposing to construct 3 multi-family residential units on the site. The Developer will also be required to build all associated on-site and oﬀ-site improvements, including but not limited to all hardscape, landscaping, and public street improvements.

The proposed Project will provide for the development of a long-time remnant site to a higher and better use, generate property tax revenue, produce new jobs (both permanent and temporary), and stimulate additional development within the area.

The project is categorically exempt from the requirement of the California Environmental Quality Act (“CEQA”) pursuant to Section 15332 (Class 23 – In-Fill Development) of the CEQA Guidelines. 56 EXHIBIT “A”
213 NORTH FERN AVENUE

57 RESOLUTION NO. SA-_____

A RESOLUTION OF THE SUCCESSOR AGENCY TO THE ONTARIO

REDEVELOPMENT AGENCY OF THE CITY OF ONTARIO, CALIFORNIA,

APPROVING A PURCHASE AND SALE AGREEMENT WITH HDC
CONSTRUCTION, INC. FOR PURCHASE OF 213 NORTH FERN
AVENUE
WHEREAS, the Successor Agency to the Ontario Redevelopment Agency (“Agency”) is the owner of that certain 0.11 acres of vacant real property located at 213 North Fern Avenue, Assessor Parcel Number 1048-572-06, and legally described in that certain Purchase and Sale Agreement between the Agency and HDC and incorporated herein by reference (the “Property”); and
WHEREAS, the Agency does not have a Department of Finance-approved Long- Range Property Management Plan and must therefore dispose of its assets pursuant to Health and Safety Code Section 34177(e), which states, in relevant part, that the Agency must “[d]ispose of [its] assets and properties expeditiously and in a manner aimed at maximizing value” and transfer the sale “[p]roceeds that are no longer needed for approved development projects or to otherwise wind down the affairs of the agency, each as determined by the oversight board, to the county auditor-controller for distribution as property tax proceeds under [Health and Safety Code] Section 34188”; and WHEREAS, on or about March 19, 2021, the Agency commissioned an appraisal of the Property and determined that the fair market value of the Property was approximately One Hundred Thousand Dollars ($100,000); and WHEREAS, the Property is no longer necessary for the Agency’s use and is therefore surplus land as defined in the Surplus Land Act (Government Code Section 54220 et seq.) (the “Act”); however, because the Property is less than 5,000 square feet in area, it is exempt surplus land, pursuant to Sections 54221(b)(1) and (f)(1)(B)(i) of the Act; and
WHEREAS, the Agency now desires to sell the Property to HDC Construction, Inc. (“HDC”) pursuant to its authority under Government Code Section 37350 and pursuant to the terms of that certain Purchase and Sale Agreement between the Agency and HDC (the “Agreement”); and
WHEREAS, the proposed sale of the Property pursuant to the Agreement is authorized by Government Code Section 37350, as it is for the common benefit, because HDC intends to build multi-family housing on the Property, which would (a) directly support the efforts of the City of Ontario (the “City”) to house its citizens, (b) generate property tax revenue for the City, which would, in turn, (c) provide opportunities for reinvestment in the community and elimination of blight caused by the vacant Property. 58 NOW, THEREFORE, THE BOARD OF THE SUCCESSOR AGENCY TO THE

ONTARIO REDEVELOPMENT AGENCY DOES HEREBY RESOLVE AND FIND AS FOLLOWS:

SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by this reference.

SECTION 2. Findings. The sale of the Property pursuant to the Agreement is authorized by Government Code Section 37350, as it is for the common benefit by addressing housing issues within the City, generating property tax revenue for the common benefit of the City, its residents and visitors, and contributing to the elimination of blight in the City.

SECTION 3. Surplus Land Act Compliance. The Property, while no longer necessary for the Agency’s use, is exempt from the Surplus Land Act because it is less than 5,000 square feet in area. See Government Code Section 54221(f)(1)(B)(i).

SECTION 4. CEQA Compliance. The Agency Board’s approval of the Agreement is exempt from the California Environmental Quality Act (“CEQA”), pursuant to CEQA Guidelines Sections 15061(b)(3), because the sale of the Property does not commit the Agency to any particular project or development on the Property, and any such project or development will be subject to separate review and approval by the City, including environmental review and approval. It can therefore be seen with certainty that there is no possibility that the Agreement may have a significant effect on the environment. As a result, such action does not constitute a project subject to the requirements of CEQA. The Agency Secretary is authorized and directed to file a Notice of Exemption with the appropriate official of the County of San Bernardino, California, within five (5) days following the date of adoption of this Resolution.

SECTION 5. Approval of Agreement. The Agency’s Board hereby approves the Agreement, on file with the City Clerk, subject to any non-substantive revisions which do not increase the Agency’s liability and are approved by the General Counsel for the Agency, and authorizes the Executive Director or his or her designee to sign and enter into the Agreement, and all agreements related thereto, and to take any other actions required to effectuate the purpose of the Agreement.

SECTION 6. Severability. If any provision of this Resolution 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 Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council declares that the City Council would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

SECTION 7. Certification. The City Clerk of the City of Ontario shall certify to the adoption of this Resolution.

SECTION 8. Effective Date. This Resolution shall become effective immediately upon its adoption.
59 PASSED, APPROVED, AND ADOPTED this 17th day of May 2022. _____________________________________
PAUL S. LEON, CHAIRMAN
ATTEST:
_________________________________

SHEILA MAUTZ, AGENCY SECRETARY
APPROVED AS TO FORM:
__________________________________

AGENCY COUNSEL
60 STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, in my official capacity as Secretary to the Successor Agency to the Ontario Redevelopment Agency, DO HEREBY CERTIFY that Resolution No. SA- was duly adopted by the Successor Agency to the Ontario Redevelopment Agency at a regular meeting held on May 17, 2022 by the following vote:

AYES: AGENCY MEMBERS:

NOES: AGENCY MEMBERS:

ABSENT: AGENCY MEMBERS:
___________________________________

SHEILA MAUTZ, AGENCY SECRETARY
(SEAL)
The foregoing is the original of Resolution No. SA- duly passed and adopted by the Successor Agency to the Ontario Redevelopment Agency at their regular meeting held May 17, 2022.
_____________________________________

SHEILA MAUTZ, AGENCY SECRETARY
(SEAL)
61 Department: Economic Development
Prepared By: Karla Tavera
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 7
SUBJECT:

AN AMENDMENT TO THE COMMUNITY DEVELOPMENT BLOCK GRANT FUNDED

DOWNTOWN FACADE IMPROVEMENT PROGRAM GUIDELINES

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council consider and approve the adoption of the amended Community Development Block Grant funded Downtown Facade Improvement Program Guidelines.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

There will be no General Fund impact. All costs associated with the Downtown Façade Improvement Program will be funded by the U.S. Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG) program. A total of $125,000 has been allocated to this program for FY 2021-22 and subsequent years will have the same allocation upon Council approval.

BACKGROUND & ANALYSIS:

The City of Ontario, in its continuing eﬀort to support the revitalization of the Historic Downtown Area, created the Downtown Façade Improvement Program (“Program”) in August of 2019 for eligible applicants within the designated Program area. The purpose of the Program is to provide ﬁnancial assistance, in the form of a grant, to commercial property and/or business owners to make qualifying façade improvements on Euclid-facing buildings. The Program is intended to facilitate commercial revitalization, preserve and beautify the Historic Downtown Area, stimulate private investment, and beautify the commercial corridors by creating a pedestrian-friendly and aesthetically pleasing environment for residents, visitors and tourists.

Grant funds are available to eligible commercial property and/or business owners who meet the requirements of the Program. The maximum Program grant amount per applicant is $25,000. The applicant will be required to contribute a one-to-one leverage of private investment towards the approved improvements of the building. This means that the amount that the applicant contributes will be matched by the City.
62 The Program assistance is limited to supply and installation contracts, such as new signage, new awnings, exterior lighting, and anti-graﬃti treatment to existing windows. Program eligible improvements are limited to exterior improvements, such as exterior reﬁnishing, new exterior doors, exterior lighting, painting, decorative improvements, and new windows.

The Program guidelines adopted in August 2019 contain the details of the eligibility requirements, amount and type of ﬁnancial assistance oﬀered, eligible improvements, application, and procurement and award processes. The original Program area encompasses both sides of North Euclid Avenue from Holt Boulevard to G Street. Staﬀ is requesting that the City Council adopt the amended Downtown Façade Improvement Program Guidelines (Attachment A) to expand the Program area to mirror the Downtown Ontario Beneﬁts Improvement District (Attachment B). By expanding the Program area, more commercial property and/or business owners will be eligible.

Since its original adoption in 2019, the program has assisted ﬁve businesses with a variety of exterior façade improvements.

63 46700.00320\40047339.2

1 CITY OF ONTARIO

ECONOMIC DEVELOPMENT DEPARTMENT
303 EAST B STREET
ONTARIO, CALIFORNIA 91764
(909) 395-2005

Downtown Storefront Façade
Improvement Program

64 46700.00320\40047339.2

2 PROGRAM GUIDELINES

SECTION I- OVERVIEW OF PROGRAM

A. Purpose, Goal and Objective of Program-
The City of Ontario, in its continuing effort to support the revitalization of the Historic Downtown Area, has created a Downtown Storefront Façade Improvement Program (Program) for all property owners within the designated program area. The purpose of the program is to provide financial assistance to commercial property and/or business owners to make qualifying façade improvements within the Program area.

The goals of the Program are to facilitate commercial revitalization; stimulate private investment and customer patronage; preserve and beautify the Historic Downtown Area; and generate shopping opportunities by creating a pleasant walking environment resulting from the improved visual aesthetics of commercial building façades.

B. Source of Funds-
The Program is being funded by the Federal Government’s Department of Housing and Urban Development (HUD) Community Development Block Grant (CDBG).

C. Financial Assistance-
Grant funds shall be available to eligible commercial property and/or business owners who meet the requirements of the Program. The maximum program grant amount per applicant is $25,000. The applicant will be required to contribute a 1:1 leverage of personal funds to wards the approved improvements of the building. For example, if the grant amount requested is $10,000, the applicant will need to provide $10,000 of improvements within the approved scope of work.

65 46700.00320\40047339.2

3 SECTION II- PROGRAM REQUIREMENTS
A. Location- Only commercial properties located within the outlined map area are eligible to apply (See map at Section V).

B. Permits- Property owner must obtain plan approval and any applicable Planning and Building permits from the City. All work performed under the provisions of this Program shall meet all applicable standards contained in the City’s adopted zoning ordinance, and local building and safety codes. The City’s General Requirements can be viewed on the City’s website at: http s://www.ontarioca.gov/government-departments- development-building/general-requirements
C. Improvements- All building improvements must be to the exterior of the building. The scope of work must be approved by City of Ontario’s Economic Development Agency and Community Improvement
Department. Proposed work should be consistent with the historic nature of the building. No work, whether it is program funded or leverage funded shall be conducted prior to the written approval of the scope of work by the City. Improvements are not eligible if they are simply maintenance of the current façade.

D. Ownership- The applicant(s) must be either the current property owner(s) or business owner(s) (tenant) of the property to be rehabilitated in order to be eligible for the Progra m. Business owner s must obtain consent from current property owner (s) in order to apply for the program . In case of multiple ownership, the signature of each titleholder is required on all appropriate documents. The City will verify property ownership and require all persons currently on title to give written consent to all work proposed to be performed on the property prior to initiating such work.

E. Program Limitations - If a building or qualified unit is occupied by one tenant occupant, the ma ximum number of applications is one per façade. If a building has multiple independent units, each unit with a separate entrance, which has a wall that qualifies as an exterior facade may make a separate application on the basis of one application per façade. If a portion of a building has been improved with Program funds, subsequent applications for the remaining portions of the building should be consistent with the prior grant work.

F. Program Eligible Property Improvements- The Program assistance is limited to supply and installation contracts. Supply and installation contracts are defined as those where the material supplier will provide installation of the material with an incidental amount of construction activity that does not require a separate constru ction contract. No extensive structural modifications should be required to install the materials (i.e., widening 66 46700.00320\40047339.2

4 entrances or installing wiring) . Such improvements may include, but are not limited to:
• New signage;
• New awnings;
• Exterior lighting; and
• Anti-graffiti treatment to existing windows.

G. Owner Leverage Eligible Property Improvements - The program requirements require a 1:1 leverage of grant funds with personal funds from the applicant. Eligible leverage -funded improvements are limited to exterior improvements. Such improvements may include, but are not limited to:
• Exterior refinishing;
• New exterior doors;
• Exterior lighting;
• Painting;
• Decorative improvements; and
• New windows.

67 46700.00320\40047339.2

5 SECTION III- PROGRAM PROCEDURES
A. Applicant Intake and Eligibility Determination-
a. Application- Applications are available at City Hall or online at www.ontarioca.gov. A form of application is attached as Appendix A for your reference. Each application must be completed in its entirety, signed and submitted with all required documents as listed on the application, and signed proof of ownership of lease agreement.

Applications will be reviewed in the order in which they are received.

The City will maintain a waiting list for all prospective participants. b. Verification and Eligibility Determination - The City shall verify all information as necessary. Applicants will be notified in writing regarding eligibility status.
c. Rehabilitation Feasibility Determination - Once an applicant has been determined to meet eligibility requirements, an initial inspection of the property will be made by the Economic Development Agency and Community Improvement Department to determine the extent of any code violations, as well as any health and safety issues, that need to be corrected as part of the program or leverage scopes of work. A proposed scope of work will be developed illustrating the items to be included as part of the program scope of work and items to be included as the leverage scope of work.
d. Approval and Notifications - Once the application and scope of work have been verified as eligible, the City and the applicant will enter into a Program Agreement that contains the terms and conditions required by the program. A form of Program Agreement is attached here as Appendix B for your reference. After execution of t he Program Agreement, the City will issue a Notice to Proceed with work. No work should be initiated, contracted for, or performed until after the Notice to Proceed has been issued. The City may not approve reimbursement for work completed prior to the issuance of the Notice to Proceed. e. Reservation of Funds - After the applicant has been approved for the program, a reservation of funds letter will be issued for the grant amount approved. This letter will reserve the a pproved grant amount for 90 days. If the applicant has not submitted all required items for reimbursement within the 90 days, the reservation of funds may be cancelled. If unforeseen conditions are delaying the project, the applicant should contact the City immediately to discuss options to preserve the reservation of program funds. One additional extension of time up to 90 day s may be granted based upon a demonstrated hardship.
68 46700.00320\40047339.2

6 B. Procurement and Contractor Selection
a. Program-Funded Improvements Procurement- The applicant is required to obtain multiple proposals for the program -funded improvements. A minimum of three proposals for each item approved within the program scope of work shall be submitted. If the applicant is unable to obtain three proposals, the applicant shall provide a summ ary of the efforts made to obtain the minimum number of required proposals.

Supply and installation proposals from vendors qualified to perform the improvements approved within the program scope of work shall be submitted for approval prior to execution of contracts with material suppliers. Proposals shall clearly state a cost for materials and a cost for installation.
b. Program-Funded Improvements Selection - The City will review the proposals submitted by the applicant and verify the lowest -qualified proposal. Approval will be given for the amount specified in the lowest- qualified proposal within the grant limits of the program. Should the applicant wish to enter into an agreement with a vendor other than the approved lowest-qualified proposal, the applicant will be responsible for the cost difference between the lowest -qualified proposal and the selected proposal. The material supplier and/or the applicant will be responsible to obtain all necessary permits for the program -funded improvements. The amount of reimbursement approved is limited to the approved lowest-qualified proposal.
c. Leverage-Funded Improvements Selection - The City will review the scope of work and contract proposal for the leverage -funded improvements pursuant to the scope of work approved dur ing the feasibility determination. All leverage -funded improvements will be contracted for privately by the applicant and paid for from private funds. No CDBG funds will be used for any portion of the leverage - funded improvements. While the City is not involved with the contracting for the leverage -funded improvements , a best practice suggestion is that the applicant obtain a minimum of three bids for the leverage-funded improvements. The final amount of program funds reimbursed will be based on the final amount of the leverage -funded improvements.
d. Insurance and Licenses- The applicant is solely responsible for ensuring that the contractor has all necessary insurance and required licenses.

In addition, the applicant shall insure tha t the contractor obtains all necessary permits for both the program-funded and leverage-funded improvements.

C. Award and Reimbursement
69 46700.00320\40047339.2

7 a. Notification- Once the applicant has submitted all required procurement documents for both the program -funded and leverage- funded improvements, the City will issue a final Notice to Proceed. No reimbursement shall be issued for work completed or contracted for prior to the issuance of the Notice to Proceed.
b. Inspection of Completed Work- After the applicant notifies the City that all work has been completed , including all program -funded and leverage-funded improvements, an inspection of the work will be conducted. This inspection shall include a review of the permits issued and inspections of permitted work.
c. Reimbursement- Based upon the results of the inspection, the City will issue reimbursement from program funds to the applicant for the completion of the improvements . In order for reimbursement to be processed, receipts evidencing payment in full on all vendor contracts for the program -funded work and construction contracts for all leverage-funded improvements shall be provided. In addition, the applicant shall file a Notice of Completion within 10 days of the completion of the work and provide a copy as part of the reimbursement request.

D. Applicant Responsibilities
a. Property Maintenance - The applicant is responsible for property maintenance and safety during the construction and material installation. The property owner/business owner is responsible for ongoing maintenance of the improvements for five (5) years following the completion of both the progr am-funded and leverage -funded improvements.

70 46700.00320\40047339.2

8 Section IV- AMENDMENTS

Amendments to these guidelines may be made from time to time by the City. Authority shall be granted to the City Manager or his/her designee to grant a minor waiver or make minor amendments to these guidelines, with the exception of Federal guidelines and regulations.

71 46700.00320\40047339.2

9 Section V- PROGRAM AREA MAP

APPENDIX A
72 46700.00320\40047339.2

10 DOWNTOWN FAÇADE IMPROVEMENT

PROGRAM APPLICATION

Applicant name:

Applicant is the: Business Owner  Property Owner  Property address:

City, state, zip code:

Applicant’s address:

City, state, zip code:

Phone number:

Email address:

PROPOSED PROGRAM-FUNDED SCOPE OF WORK
Briefly describe the proposed Program-Funded Scope of Work. Eligible program-funded improvements include only supply and installation contracts, such as new signage, new awnings, exterior lighting, and anti-graffiti treatment to existing windows.

Estimated Proposed Program-Funded Scope of Work Cost:

73 46700.00320\40047339.2

11 PROPOSED LEVERAGE-FUNDED SCOPE OF WORK
Briefly describe the proposed Leverage-Funded Scope of Work. Eligible leverage-funded improvements include exterior improvements only, such as exterior refinishing, new exterior doors, exterior lighting, painting, decorative improvements, and new windows

Estimated Proposed Leverage-Funded Scope of Work Cost:
 I/We understand that the program requires owner leverage funds in a 1:1 ratio with the requested grant amount.

APPLICATION CERTIFICATION: I/we understand that the above information is being collected to determine if I/we are eligible to receive financial assistance through the Downtown Façade Improvement Program. I/we authorize the City of Ontario to verify all information provided on this application.

APPLICANT SIGNATURE

DATE

PROPERTY OWNER SIGNATURE (IF APPLICABLE)

DATE

74 46700.00320\40047339.2

12 APPENDIX B

75 46700.00320\40047339.2

13 PROGRAM AGREEMENT

CITY OF ONTARIO
Downtown Storefront Façade Improvement Grant Agreement

THIS AGREEMENT, entered into this ______day of _____________, _______, between the City of Ontario, CA (hereinafter referred to as “City”) and the following designated OWNER/LESSEE:

Owner Name:

Lessee’s Name:

Name of Business:

Business Tax ID #:

Address of Property to be
improved:

WITNESSETH:

WHEREAS, the City of Ontario has established the Downtown Storefront Façade Improvement Program (hereinafter referred to as the “Program”) for application within the Historic Downtown Area (hereinafter referred to as “Program Area”); and

WHEREAS, the Program is administered by the City with the advice of the City Council and is funded by Community Development Block Grant (CDBG) Funds from the U.S. Department of Housing and Urban Development for the purpose of commercial revitalization, stimulation of private investment and customer patronage, preservation and beautification of the Historic Downtown Area, and to generate shopping o pportunities by creating a pleasant walking environment resulting from the improved visual aesthetics of the commercial building façades.

WHEREAS, pursuant to the Program, the City has agreed to participate, subject to its sole discretion in reimbursing owners/lessees for the cost of eligible exterior improvements to commercial establishments within the Project Area up to a maximum of $25,000 with an applicant contribution of 1:1 leverage of personal funds towards the improvements of the building in the scope of work; and

76 46700.00320\40047339.2

14 WHEREAS, the Owner/Lessee’s property is located within the Program Area, and the Owner/Lessee desires to participate in the Program pursuant to the terms and provisions of this Agreement.

NOW THEREFORE, in consideration of the mutual covenants and agreements obtained herein, the City and the Owner/Lessee do hereby agree as follows:

SECTION 1

With respect to the façade improvements to the exterior of the property, the City shall reimburse the Owner/Lessee for the cost of supply and i nstallation contracts up to a maximum amount of $25,000 provided that Owner/Lessee has contributed said amount of personal funds towards the exterior improvements.

The actual total reimbursement amount per this Agreement shall not exceed $ for façade improvements.

The improvement costs, which are eligible for City reimbursement , are limited to supply and installation contracts which are defined as those where the material supplier will provide installation of the material with an incidental amount of construction activity that does not require a separate construction contract. No extensive structural modifications should be required to install the materials (i.e., widening entrances or installing wiring). Such improvements may include, but are not limited to: new signage; new awnings; exterior lighting; and anti -graffiti treatment to existing windows.

The improvement costs, which are eligible for City reimbursement, shall be shown on the plans, design drawings, specifications, and esti mates approved by the City. Such plans, design drawings, specifications, and estimates are attached hereto as Exhibit “A.”

SECTION 2

No improvement work shall be undertaken until the design has been submitted to and approved by the City. Following approval, the OWNER/LESSEE shall contract for the work and shall commence and complete all such work within ninety (90) days from the date of such approval. The OWNER/LESSEE may request a ninety (90) day extension provided there is a demonstrated hardship.

SECTION 3

The City shall periodically review the progress of the contractor’s work on the façade improvements pursuant to this Agreement. Such inspections shall not replace any required permit inspection by Building Inspectors. All work which is not in conformance with the approved plans, design drawings, and specifications shall be immediately remedied by the OWNER/LESSEE and deficient or improper work shall be replaced and made to comply with the approved plans, design drawings, and specifications and the terms of this Agreement.

SECTION 4

77 46700.00320\40047339.2

15 Upon completion of the improvements and upon their final inspection and approval by the City, the OWNER/LESSEE shall submit to the City a properly executed and notarized contractor statement showing the full cost of the work to complete the façade improvement related work, as well as a statement for façade improvement work done to achieve the 1:1 match required by this Agreement. In addition, the OWNER/LESSEE shall submit to the City proof of payment of the contract cost pursuant to the contractor’s statement and final lien waivers from all contractors and subcontractors as well as proof of 1:1 match. The City shall, within forty-five (45) days of receipt of contractors statement, proof of payment, conformed copy of the Notice of Completion, and lien waivers, issue a check to the OWNER/LESSEE as reimbursement in the total grant amount stated in SECTION 1 of this Agreement.

SECTION 5

If the OWNER/LESSEE fails to complete the improvement work provided for herein in conformity with the approved plans, design drawings, and specifications and the terms of this Agreement, then upon written notice being given by the City to the OWNER/LESSEE, by certified mail to the address listed above, this Agreement shall terminate and the financial obligation on the part of the City shall cease and become null and void.

SECTION 6

This Agreement shall be binding upon the City and upon the OWNER/LESSEE and it s successors, to said property for a period of five (5) years from and after the date of completion and approval of the façade improvements provided herein unless otherwise agreed upon by the parties in writing. It shall be the responsibility of the OWNER/LESSEE to inform subsequent OWNER(S)/LESSEE(S) of the provisions of this Agreement.

SECTION 7

The OWNER/LESSEE agrees to maintain the improvements at his/her sole expense for a period of five (5) years unless otherwise agreed upon by the parties in writing. In the event that the OWNER/LESSEE fails to maintain the improvements, the City may issue a thirty (30) day written notice to the OWNER/LESSEE to correct any maintenance deficiencies. If the OWNER/LESSEE fails to correct the stated deficiencies within thirty (30) days of the notice, City may cause any maintenance or repair work to be performed at OWNER’s expense.

SECTION 9

The OWNER/LESSEE agrees to comply with all the requirements now in force, or which may hereafter be in force, of all municipal, county, state and federal laws, pertaining to the development and use of the Property and construction of the façade improvements, as well as operations conducted on the Property. The OWNER/LESSE E agrees that the City shall not be liable for, and covenants and agrees to indemnify and hold harmless the City and its officials, officers, employees, and agents from and against any and all losses, claims, damages, liabilities, or expenses, of every con ceivable kind, character and nature whatsoever arising out of, resulting from noncompliance with all municipal, county, state and federal laws. The OWNER/LESSEE will require any contractor to comply with the above cited Local, State and Federal laws, and will incorporate these laws in any written agreement between the OWNER/LESSEE and a contractor. 78 46700.00320\40047339.2

16 SECTION 10

No member, official, agent, legal counsel or employee of the City shall be personally liable to the Participant, or any successor in interest in t he event of any default or breach by the City or for any amount which may become due to the OWNER/LESSEE or successor or on any obligation under the terms of this Agreement.

SECTION 11

The OWNER/LESSEE releases the City from, and covenants and agrees that the City shall not be liable for, and covenants and agrees to indemnify and hold harmless the City and its officials, officers, employees, and agents from and against any and all losses, claims, damages, liabilities, or expenses, of every conceivable kind, character and nature whatsoever arising out of or, resulting from or in any way connected with directly or indirectly with the façade improvements. The OWNER/LESSEE further covenants and agrees to pay for or reimburse the City and its officials, offic ers, employees, and agents for any and all costs, reasonable attorney’s fees, liabilities, or expenses incurred in connection with investigating, defending against or otherwise in connection with any such losses, claims, damages, liabilities, or cause of action. The city shall have the right to select legal counsel and to approve any settlement in connection with such losses, claims, damages, liabilities, or causes of action. The provisions of this section shall survive the completion of said façade improvements.

SECTION 12

Nothing herein is intended to limit, restrict, or prohibit the OWNER/LESSEE from undertaking any other work in or about the subject premises, which is unrelated to the façade improvements provided for in this Agreement.

[SIGNATURES ON THE FOLLOWING PAGE]

79 46700.00320\40047339.2

17 IN WITNESS THEREOF, the parties hereto have executed this Agreement on the date first appearing above.

PROPERTY OWNER CITY OF ONTARIO

_________________________________ ______________________________ Name Scott Ochoa, City Manager

__________________________________
Signature

LESSEE/BUSINESS OWNER Approved as to Form

_________________________________ ______________________________ Name Ruben Duran, City Attorney

_________________________________
Signature

80 Proposed Facade Improvement Program Area Map
81 F ST

GRANITE ST

C ST
LEM
ON AVE

SUNKIST ST

VESTA ST
F ST
G ST
PLUM
AVE

HOLT BLVD
D ST

STATE ST

BROOKS ST

MAIN ST
F ST

I ST
PALM
AVE

GRANADA CT

EL MORADO CT

FERN AVE
H ST
EUCLID
AVE
CHERRY
AVE

EMPORIA ST

ALLYN AVE

SULTANA AVE

FERN AVE

EUCLID AVE

MAIN ST

LEMON AVE

GRANADA CT

BERKELEY CT

EMPORIA ST

LEMON AVE

LAUREL AVE
E ST

MAIN ST

GRANADA CT
I ST
D ST

CYPRESS
AVE

SULTANA AVE

BONITA CT

BEVERLY
CT

FERN AVE

NOCTA ST
F ST

EL MORADO CT
D ST

BEVERLY SQ

LAUREL AVE

CAMPUS AVE

TRANSIT ST

LAUREL AVE
G ST
GR

ANADA CT
G ST
E ST

LYNN HAVEN CT

SULTANA AVE
LEM

ON AVE LEMON AVE

MALCOLM AVE
I ST
D ST

EMPORIA ST

CALDWELL AVE

CHERRY AVE

G STCHERRY AVE

LAURELAVE
PALM
AVE

LAURELAVE
PLUM
AVE
PALM
AVE

B ST

VESTA ST

GRANITE AVE

SIERRA CT
I ST

SUNKIST ST

EUCLID AVE

ONTARIO BLVD
PALM
AVE
PALM
AVE

TRANSIT ST

SAN ANTONIO AVE
D ST

EMPORIA ST

SUNKIST ST
PLUM
AVE
PALM
AVE

SULTANA AVE

C ST

EMPORIA ST
E ST

HOLT BLVD
M

USCATELAVE

BONITA CT

HOLLOWELL ST

STATE ST
H ST

LAUREL AVE
I ST
M

ONTEREY AVE

LAUREL AVE

WILLOW ST
E ST
BERLYN
AVE
F ST

FERN AVE
EUCLID
AVE
CHERRY
AVE

SULTANA AVE
PLUM
AVE
M

ELROSE AVE

MONTEREY AVE
F ST
I ST

PLEASANT
AVE

PARK ST

GRANADA CT

PALM AVE
G ST

HOLT BLVD

STATE ST
PLUM
AVE

VINE AVE

EL MORADO CT

B ST

HOLT BLVD

PARK ST

VINE AVE

STATE ST

PARK ST
B ST

CYPRESS AVE

SAN ANTONIO AVE
M
IRAM
ONTE
AVE

FERN AVE
G ST
H ST

EL MORADO CT
I ST
2 1
1 1
3 3
2 4
3 5
2 3
1 2
2 3
12 3
16 14
12 15.01

11.01 11.03

11.04 13.10
Legend
Downtown Storefront Facade Revitalization
LMI Qualified Block Groups
LMI Qualified Census Tracts
Downtown Storefront Facade Revitalization Program
·
82 Department: Economic Development
Prepared By: Miranda Watkins
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 8
SUBJECT:

A RESOLUTION REGARDING FOURTH AMENDMENT TO OPERATING COVENANT

AND TAX SHARING AGREEMENT (EXCLUSIVELY VOLVO) BETWEEN THE CITY OF ONTARIO AND G.H.N., INC

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT:

There is no ﬁscal impact as a result of the adoption of the Resolution and approval of the recommended amendment. The Amendment will extend the term of the Dealer’s Operating Covenant under the Agreement for an additional two years, and extend the associated eligibility period for a corresponding two years. The ﬁnancial terms associated with the tax sharing are not affected by the recommended Amendment.

BACKGROUND & ANALYSIS:

The Bradley-Burns Uniform Local Sales and Use Tax Law authorizes counties and cities to impose local sales and use taxes in conformity with the Sales and Use Tax Law. The City of Ontario receives one percent (1%) of all taxable sales generated within the City under this law. Sales and Use Tax revenues are an important source of revenue for the City, which are used to provide essential city services, such as police, ﬁre, infrastructure maintenance and community facilities.
83 The City of Ontario and G.H.N, Inc. the “Dealer”, entered into that certain Agreement for Purchase of Operating Covenant (Exclusively Volvo/Volkswagen/Subaru) on December 21, 2001 to assist in the establishment of the dealership operations in the City of Ontario, in the Ontario Auto Center.

This Agreement was subsequently amended on December 12, 2002, and on January 16, 2007. This Agreement, and the two subsequent amendments, are collectively referred to as the Original Operating Covenant Agreement (“Original OCA”).

The City of Ontario and the Dealer thereafter entered into an Operating Covenant and Tax Sharing Agreement (Exclusively Volvo), whereby Dealer agreed to operate the Volvo automobile dealership in the City of Ontario for an additional ﬁfteen year period and City agreed to provide covenant payments following Dealer’s receipt of the applicable payments under the Original OCA, or the expiration of the original sales tax eligibility period (July 2009), whichever was earlier. This Agreement was subsequently amended on May 24, 2010, February 21, 2012, and April 1, 2017. In October, 2018, the Dealer completed a $3.6M renovation of the Volvo dealership facilities, located at 1300 Auto Center Drive, in the Ontario Auto Center.

Pursuant to the recommended Fourth Amendment, the parties now wish to amend the Agreement to extend the term of the Dealer’s operating covenant under the Agreement for an additional two years, and to extend the associated eligibility period for a corresponding two years. 84 RESOLUTION NO. _____

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO,

CALIFORNIA, APPROVING THE FOURTH AMENDMENT TO

OPERATING COVENANT AND TAX SHARING AGREEMENT
(EXCLUSIVELY VOLVO) BETWEEN THE CITY OF ONTARIO AND
G.H.N., INC. AND MAKING RELATED FINDINGS.

WHEREAS, G.H.N., Inc., a California corporation and an auto dealership with its only location in the City of Ontario (“City”), and the City are parties to that certain “Agreement for Purchase of Operating Covenant and Operating Covenant (Exclusively Volvo/Volkswagen/Subaru)” (“Original Agreement”) dated December 21, 2001 for reference purposes; and
WHEREAS, G.H.N., Inc. and the City entered into that certain “First Amendment to Agreement for Purchase of Operating Covenant and Operating Covenant (Exclusively Volvo/Volkswagen/Subaru)” dated December 12, 2002 for reference purposes; and WHEREAS, G.H.N., Inc. and the City entered into that certain “Second Amendment to Agreement for Purchase of Operating Covenant and Operating Covenant (Exclusively Volvo/Volkswagen/Subaru)” dated January 16, 2007 for reference purposes where the auto dealership agreed to, among other things, develop and operate a facility and receive certain operating covenant payments; and
WHEREAS, the City and G.H.N., Inc. thereafter entered into that certain “Operating Covenant and Tax Sharing Agreement (Exclusively Volvo)” dated January 16, 2007 (“Agreement”) whereby G.H.N., Inc. agreed to operate the Volvo dealership in the City for an additional fifteen (15) years and Ontario agreed to provide covenant payments following auto dealership’s receipt of the applicable payments under the Original Agreement, or expiration of the original sales tax eligibility period (July 2009), whichever was earlier; and
WHEREAS, the City and G.H.N., Inc. entered into that certain “First Amendment to Operating Covenant and Tax Sharing Agreement (Exclusively Volvo)” dated May 24, 2010, for the purpose of extending the term of G.H.N., Inc.’s operating covenant under the Agreement by five (5) years in exchange for City’s agreement to extend by five (5) years the period during which the G.H.N., Inc. may receive financial incentive payments from City; and
WHEREAS, the City and G.H.N., Inc. entered into that certain “Second Amendment to Operating Covenant and Tax Sharing Agreement (Exclusively Volvo)” dated February 21, 2012, for the purpose of extending the term of G.H.N., Inc.’s operating covenant under the Agreement for an additional five (5) years in exchange for a one-time payment by City in the amount of Eighty Thousand Dollars ($80,000); and 85 WHEREAS, the City and G.H.N., Inc. entered into that certain “Third Amendment to Operating Covenant and Tax Sharing Agreement (Exclusively Volvo)” dated April 1, 2017, to adjust the base amount in each Computation Period, extend the Eligibility Period for an additional 10 years, and increase the aggregate Covenant Payment amount to Nine Hundred Fifty Thousand Dollars ($950,000); and
WHEREAS, to ensure that the G.H.N., Inc. Volvo auto dealership remains in the City and continues to do business in the City, G.H.N., Inc. and City have negotiated a Fourth Amendment to Operating Covenant and Tax Sharing Agreement (Exclusively Volvo) (“Fourth Amendment”) which extends the term of G.H.N., Inc.’s operating covenant under the Agreement for an additional two (2) years, and extends the Eligibility Period for an additional two (2) years; and
WHEREAS, the City has determined that the retention of the Volvo auto dealership within the City will generate substantial revenue for the City, allow for the retention of and the creation of new jobs, revitalize an area of the City which has suffered a loss of jobs and businesses during the economic downturn of the mid-2000’s, and result in community and public improvements that might not otherwise be available to the community for many years; and
WHEREAS, entering into the Fourth Amendment and ensuring the retention of the Volvo auto dealership may attract additional businesses and investment to the community due to increased services and economic activity in the area; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

SECTION 1. Recitals. The Recitals set forth above are true and correct and are incorporated into this Resolution by reference.

SECTION 2. Findings. The City Council hereby finds that:
(a) Entering into this Fourth Amendment will serve the
following public purposes:
(1) G.H.N., Inc. is a successful auto dealership who will be committed to retaining the Volvo dealership in the City of Ontario. (2) Retaining this business within the City will create jobs, maintain economic diversity in the community and stimulate the economic recovery of the Inland Empire by generating new opportunities for economic growth in the region. (3) Retaining G.H.N., Inc.’s Volvo auto dealership within the City will generate substantial revenue for the City, allow for the retention of jobs, revitalize an area of the City which has suffered a loss of jobs and businesses during the economic downturn of the mid-2000’s, and result in community and public improvements that might not otherwise be available to the community for many years. 86 (4) Entering into this Fourth Amendment and ensuring the retention of the auto dealership may attract additional businesses and investment in the community due to increased services and economic activity in the area. (b) Based on these and other public benefits the public purposes of the Fourth Amendment outweigh any private benefit to private persons or entities. (c) Contingent Obligations. The City finds that each City obligation is contingent upon separate consideration by G.H.N., Inc. including but not limited to quarterly sales tax generation.

SECTION 3. CEQA Compliance. The City Council hereby finds that pursuant to the California Environmental Quality Act (“CEQA”) (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal Code Regs, tit. 14 § 15000 et seq.) approval of the Fourth Amendment is not a “project” for purposes of CEQA and therefore is not subject to CEQA review. The Agreement is not a project pursuant to State CEQA Guidelines section 15378(b)(4) which states that governmental fiscal activities which do not involve any commitment to any specific project which may result in a potentially significant environmental impact are not subject to CEQA. Further, the Agreement is not a project under State CEQA Guidelines section 15061(b)(3), which states that CEQA does not apply where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment.

In addition, the City Council will direct staff to file a categorical exemption with the County of San Bernardino for this location upon adoption of this Resolution.

SECTION 4. Approve Fourth Amendment. The City Council hereby approves the Fourth Amendment to Operating Covenant and Tax Sharing Agreement in the form attached to this Resolution as Exhibit A. The City Council hereby authorizes the City Manager, with the concurrence of the City Attorney, to execute said Fourth Amendment.

City Manager is hereby authorized to take any additional steps necessary to facilitate the intent of this action.

SECTION 5. Implementation. The City Manager or his or her designee is hereby authorized to and directed to, on behalf of the City, execute any and all documents in accordance with this Resolution and applicable law.

SECTION 6. Severability. If any provision of this Resolution 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 Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City declares that it would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

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

SECTION 8. Effective Date. This Resolution shall become effective immediately upon its adoption.
87 PASSED, APPROVED, AND ADOPTED this 17th day of May 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST AND KRIEGER LLP

CITY ATTORNEY
88 STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022-__ was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held May 17, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022-__ duly passed and adopted by the Ontario City Council at their regular meeting held May 17, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
89 EXHIBIT A

FOURTH AMENDMENT TO OPERATING COVENANT AND TAX SHARING

AGREEMENT (EXCLUSIVELY VOLVO)
[Attached behind this cover page]
90 91
92 93
94 95
96 97
Department: Engineering
Prepared By: Yesenia Lopez
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 9
SUBJECT:

AN INCREASE IN THE TOTAL AUTHORIZED EXPENDITURE FOR THE CONSTRUCTION CONTRACT FOR THE 2021 SPRING ALLEY CDBG PAVEMENT

REHABILITATION PROJECT

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve an increase of $40,000 in the total authorized expenditure for the construction contract with Onyx Paving Company, Inc. of Anaheim, California (Contractor) for the 2021 Spring Alley Community Development Block Grant (CDBG) Pavement Rehabilitation Project, resulting in a revised total authorized expenditure of $639,500.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The Fiscal Year 2021-22 Adopted Budget allocated funds for the 2021 Spring Alley CDBG Pavement Rehabilitation Project in the amount of $295,000 from SB1 funds and $599,500 from CDBG funds, for a total combined allocation of $894,500. The recommended revised total authorized expenditure amount is within the adopted budget.

BACKGROUND & ANALYSIS:

On February, 15 2022, a construction contract was awarded to the Contractor for the rehabilitation of ﬁve residential alleys in the amount of $545,000 plus a 10% contingency of $54,500, for a total authorized expenditure of $599,500. Project location maps are provided for reference as Exhibit "A" and Exhibit "B."

During construction of the ﬁrst of ﬁve alleys, drainage concerns were identiﬁed, which prompted a redesign and installation of a drainage system. Additionally, an unidentiﬁed culvert underneath a driveway required reconstruction that was not previously anticipated. The change order for these items exhausted the majority of the 10% contingency and an additional $40,000 is needed to replenish the contingency to ﬁnance any additional unforeseeable work that may arise during the construction of the remaining alleys. The additional funds will be added to the contract amount for a new, not to exceed amount of $639,500 and will be utilized for additional change orders, as necessary.
98 99
100
Department: Planning
Prepared By: Elly Antuna
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 10
SUBJECT:

RECOGNITION OF "HISTORIC PRESERVATION MONTH" IN THE CITY OF ONTARIO

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council Proclaim the Month of May 2022 as “Historic Preservation Month” in the City of Ontario.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Focus Resources in Ontario's Commercial and Residential Neighborhoods Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

There is not a direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

Since 1971, the National Trust for Historic Preservation has conducted nationwide campaigns to celebrate historical places and showcase preservation activities. In 2005, the National Trust began designating the month of May as Historic Preservation Month. The goals of Historic Preservation Month are to promote historical places for the purpose of instilling national and community pride, promoting heritage tourism, and showcasing the social and economic beneﬁts of historic preservation. This year, the City is celebrating historic preservation month by continuing the “Model Colony” Awards program and presentation.

This year’s Model Colony Awards theme will be “Preserving Community,” which explores how preserving and documenting Ontario’s heritage is key to preserving the community. While Historic Preservation is typically associated with the preservation of the built environment and highlighting signiﬁcant architectural resources, a community’s heritage consists of much more than that.

Ontario’s heritage consists of many things including signiﬁcant architectural buildings, unique neighborhoods, longstanding businesses, local traditions, and signiﬁcant events. In keeping with this year’s theme, Model Colony Award winners will display their award status on their properties to engage the community in this important program. Single-family property owners will display yard signs with their award status and the commercial recipient will display their award status with a window sign. Additionally, and as part of the 2020/2021 Certiﬁed Local Government (CLG) Grant, Staﬀ has prepared a photo brochure of past entries in the City’s historic preservation photo contest. The photo contest encouraged the community to submit photos of places in Ontario that 101
are signiﬁcant to them and are 50 years or older, regardless of their oﬃcial historic status. This collection of photographs gives insight into what the community believes is important and is another way to preserve Ontario's heritage.
102

PROCLAMATION
WHEREAS, "Preserving Community” is the theme for Historic Preservation Month 2022, sponsored by the City of Ontario; and
WHEREAS, the City’s character and history are reflected in its cultural, historical, and architectural heritage with an emphasis on the “Model Colony” as declared by an Act of the Congress of the United States in 1903 and presented at the St. Louis World’s Fair in 1904; and WHEREAS, the City’s historical foundation should be preserved and promoted in order to foster an understanding of the City’s past, and provide future generations the opportunity to appreciate, enjoy, and understand Ontario’s rich heritage; and
WHEREAS, historic preservation is an effective tool for managing smart growth, revitalizing neighborhoods, fostering local pride and maintaining community character while enhancing livability; and WHEREAS, historic preservation is relevant for communities across the nation, both urban and rural, and for Americans of all ages, all walks of life and all ethnic backgrounds; and WHEREAS, it is important to celebrate the role of history in our lives and the contributions made by dedicated individuals in helping to preserve the tangible aspects of the heritage that has shaped us as a people; and
WHEREAS, historic preservation provides an opportunity for the citizens of Ontario to be involved in the community and participate in the revitalization of the City; and WHEREAS, HISTORIC PRESERVATION MONTH provides an opportunity to celebrate the role of history in our lives and the contributions made by dedicated individuals in helping to preserve the tangible aspects of the heritage that has shaped us as a people; and WHEREAS, May 2022, has been proclaimed HISTORIC PRESERVATION MONTH in the United States; and
NOW, THEREFORE, the City of Ontario, its City Council and staff members do declare the month of May 2022 as

HISTORIC PRESERVATION MONTH
Given this 17th day of May, 2022, by the Ontario City Council Paul S. Leon, Mayor
Alan D. Wapner, Mayor Pro Tem
Jim W. Bowman
Debra Dorst-Porada
Ruben Valencia
Council Members
103
Department: Police Department
Prepared By: Lizceth Zazueta
Staff Member Presenting:

Mike Lorenz, Chief of Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 11
SUBJECT:

APPROVAL FOR LEASE FOR A LEICA LASER SCANNER WITH GREATAMERICA

FINANCIAL SERVICES CORPORATION

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT:

The total cost of the contract per year for an additional Precision Leica RTC360 Forensic Mapping Laser Scanner is not to exceed $18,420 for the ﬁrst
four
payments
, over the term
of
five
years, with the last payment being $
7,791.

The total not to exceed amount for the ﬁve year
term is $81,471. Appropriations will be included in the General Fund in the next FY 2022-23 Quarterly Budget and the subsequent years for Council approval.

BACKGROUND & ANALYSIS:

I
n April 2021, the City approved a lease agreement with GreatAmerica Financial Services Corporation to lease a Leica RTC360 Forensic Mapping Laser Scanner for the Traﬃc Division, allowing this division two available laser scanners for major incidents and collisions where the use of one scan station was not suitable.

The Forensic Division is requesting a third Leica RTC360 Forensic Mapping Laser Scanner to assist their Forensic Specialists.

The Leica RTC360 Forensic Mapping Laser Scanner will provide the Forensics Division with the most up to date scanner technology. The Leica RTC360 Forensic Mapping Laser Scanner is the fastest laser scanner available. It can capture a full scene scan plus HDR imagery in 1 minute and 26 seconds. This maximizes the eﬃciency of the investigators' time which also produces a cost savings.

The Leica RTC360 Forensic Mapping Laser Scanner ensures unbiased collection of scene evidence. It eliminates extra oﬃce work by capturing clean, crisp, complete data with geometric accuracy, low range noise, and mixed pixel ﬁltration that minimizes or eliminates invalid points. As a result, investigators and reconstructionist can generate a deliverable that can be deployed immediately 104
from the scene for mapping eﬃciency and will ensure the scanned data is captured at scientiﬁc accuracy for maximum confidence in the courtroom.

The eﬃciencies gained by leasing a third Leica RTC360 Forensic Mapping Laser Scanner from GreatAmerica include but not limited to,
time, money, and training. Keeping the lease of the Leica RTC360 Forensic Mapping Laser Scanner with the same vendor ensures the software and technology stay current, allows for consistent training, and ensures that all scanners receive the same care and maintenance at a minimal cost. By leasing this piece of equipment, the Ontario Police Department is able to spread the cost over four years allowing the City of Ontario to fully purchase the equipment at the end of the lease or trade up to a newer model. 105
Department: Public Works
Prepared By: Adrian Escamilla
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 12
SUBJECT:

A CONSTRUCTION CONTRACT FOR THE REPLACEMENT AND INSTALLATION OF

FLOORING AT THE SENIOR CENTER

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

B
.

Authorize the City Manager to execute said contract and authorize the ﬁling of the notice of completion at the conclusion of all construction activities related to the project.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The Fiscal Year 2021-22 Adopted Budget includes appropriations of $133,851 in the Facility Maintenance Fund for floor replacement at the Senior Center.

BACKGROUND & ANALYSIS:

The ﬂooring at the Senior Center has shown increased signs of deterioration. The project includes an application of moisture tek vapor barrier followed by the installation of carpet tile. The application of a moisture tek vapor barrier will provide protection against slow moisture moving through the subﬂoor, thus increasing the life expectancy of the carpet tile. Staﬀ recommends awarding the cooperative purchasing construction contract, Sourcewell Contract #080819-SII, to Shaw Industries, Inc.

Sourcewell is an organization that provides cooperative purchasing, allowing governmental agencies to "piggyback" oﬀ of their bidding process. This saves the City money through "economies of scale" because Sourcewell combines the buying power of over 50,000 member agencies. Shaw Industries, Inc. was vetted through the Sourcewell cooperative and selected for the flooring project. 106
Department: Public Works
Prepared By: Daniel P Beers
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 13
SUBJECT:

A CONSTRUCTION CONTRACT FOR THE OVITT FAMILY COMMUNITY LIBRARY

ROOF RESTORATION

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:

A
.

Award Bid No. 1505 and approve a Construction Contract with Letner Rooﬁng Company located in Orange, California, for the roof restoration of the new Tremco Roof Application System (on ﬁle with Records Management) at the Ovitt Family Community Library for an amount of $830,700, plus a contingency of $32,128 for a total amount of $862,828; B
.

Authorize the City Manager to execute said contract; and C
.

Authorize the ﬁling of the notice of completion at the conclusion of all construction activities related to the project.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The Fiscal Year 2021-22 Adopted Budget includes appropriations of $862,828 in the Capital Projects Fund for the roof restoration at the Ovitt Family Community Library.

BACKGROUND & ANALYSIS:

The roof at the Ovitt Family Community Library has required increased maintenance due to deterioration. The project includes the application of a base coat and installation of a new Tremco energy-eﬃcient “Cool Roof” that meets California Title 24 speciﬁcations. The new roof restoration system will provide better drainage, faster evaporation, and lower roof-top temperatures. In addition, by reducing roof-top temperatures, this system decreases interior building temperatures resulting in reduced air conditioning and energy needs.

On April 25, 2022, 11 bids were received for the Ovitt Family Community Library Roof Restoration Project. The lowest responsive bidder (San Marino Roof Co, Inc.) withdrew their bid. The bid results are listed below.

107
Vendor
Location
Amount
San Marino Roof Co., Inc.
(Withdrawn)
Orange, CA
$721,251
Letner Roofing Company
Orange, CA
$830,700
A Preman Roofing Inc.

San Diego, CA
$917,000
Best Contracting Services Inc.

Gardena, CA
$946,860
Universal Coatings Inc.

Fresno, CA
$947,000
C.I. Services Inc.

Mission Viejo, CA
$958,000
Chapman Coast Roof Inc.

Fullerton, CA
$962,233
AME Builders Inc.

Pomona, CA
$970,950
FC and Sons Roofing
Incorporated
Bell Gardens, CA
$1,028,00
Rite-Way Roof Corporation
Fontana, CA
$1,039,608
Commercial Roofing Systems
Inc.

Arcadia, CA
$1,198,729

Staﬀ recommends award bid No. 1505 to Letner Rooﬁng Company as they submitted the lowest responsive bid.

108
Department: Public Works
Prepared By: Daniel P Beers
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 14
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR

ENGINEERING DESIGN SERVICES FOR THE COMPRESSED NATURAL GAS

COMPRESSOR REPLACEMENT AND UPGRADE PROJECT

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The Fiscal Year 2021-22 Adopted Budget includes appropriations of $153,630 in the Mobile Source Air Fund for engineering services equipment upgrades due to utility needs and capacity for the CNG Compressor Replacement and Upgrade Project. Recommended Amendment No. 3 will increase the contract by $34,690 for an amended total not-to-exceed contract amount of $188,320.

BACKGROUND & ANALYSIS:

The City has owned and operated the CNG fueling facility since 1995.

Over the years, this facility has reduced the community’s collective carbon footprint, improved air quality, lowered dependency on fossil fuels and foreign oil, and enabled compliance with the South Coast Air Quality Management District Rule 1193 “Clean On-Road Residential and Commercial Refuse Collection Vehicles.” The facility provides CNG for 91 City vehicles, Ontario-Montclair School District buses, and the public via a CNG fueling station located at 1440 South Cucamonga Avenue.

On June 18 2019, the City Council awarded a Professional Services Agreement with STV Energy Services Inc. to design the CNG Compressor Replacement and Upgrade Project. In March 2020, after deeper assessment of the existing facility and additional information from the Gas Company and Southern California Edison, the scope of work for the design of the Project needed to be changed. The new scope included revised equipment to meet the future CNG needs and a phasing 109
plan to allow for uninterrupted fueling operations during the construction of new CNG Compressor. On June 2, 2020 the City Council approved the additional scope of work for the Project. However, due to the larger footprint of the new compressors and generator available at this time, several electrical upgrades are needed which require an additional $34,690 in design costs. If approved, Staff anticipates the new CNG station to be operational by September 2022.

110
Department: Public Works
Prepared By: Blaine M Ishii
Department:

Prepared By: Bonnie Tam
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT:

AN AMENDMENT TO THE EQUIPMENT PURCHASE AGREEMENT WITH
MCLAUGHLIN WASTE EQUIPMENT, INC. FOR COMMERCIAL BIN CONTAINERS

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

The proposed Amendment No. 3 extends the term of the Agreement to June 30, 2023 and increases the authorized expenditure amount. The amount will be increased by $500,000 in the Integrated Waste Fund for Fiscal Year 2021-22 (to be included in the Year-end Budget Update) and $1,500,000 for Fiscal Year 2022-23. The proposed total authorized contract amount will be $2,900,000 for the purchase of new and replacement commercial bin containers consistent with future budgets approved by the City Council. In addition, Amendment No. 3 allows for decreases in pricing based on the price of materials under the American Metal Market (AMM) at the time an order is placed. The AMM is an impartial provider of industry news and metal pricing information for the U.S. steel market.

Actual expenditures will be based on the ﬁxed-unit pricing and the actual quantity of containers purchased in order to meet operational needs. The Integrated Waste Rates include funding for the routine replacement of worn-out containers and the purchase of additional containers to meet customer demands.
111
BACKGROUND & ANALYSIS:

On June 16, 2019, the City awarded a Bid (bid #1122) to McLaughlin Waste Equipment, Inc. for the purchase of new and replacement commercial bin containers in the amount of $900,000. The Integrated Waste Department currently has commercial bin containers of various sizes for refuse, recycling, wood/green waste recycling, and food waste service, including

1.5 cubic yards (cy), 2.0 cy, 3.0 cy, 4.0 cy, and 6.0 cy. The Integrated Waste Department routinely repairs bin containers to maintain an adequate inventory to meet customer needs. Some bins are too costly to repair and require replacement. Additionally, due to the growth of Ontario Ranch, increase of commercial accounts, and various state mandates (such as AB 341, AB 1826, and SB 1383), additional bin containers for organics recycling is needed. The cost for these organic bin containers is $500,000.

Below is a fee schedule for the types of bin containers to be purchased:

Bin Type/Shipping/Tax
Quantity
Price

1.5 yd Pitch Top Container
1 $751.00 each

2.0 yd Pitch Top Container
1 $845.00 each

3.0 yd Pitch Top Container
1 $982.00 each

4.0 yd Pitch Top Container
1 $1,136.00 each

6.0 yd Pitch Top Container
1 $1,331.00 each
112
Department: Public Works
Prepared By: Blaine M Ishii
Department:

Prepared By: Bonnie Tam
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 16
SUBJECT:

AN AMENDMENT TO THE EQUIPMENT PURCHASE AGREEMENT WITH
MCLAUGHLIN WASTE EQUIPMENT, INC. FOR ROLL-OFF CONTAINERS AND PARTS

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council a
uthorize the City Manager to execute Amendment No.
1 to the existing Equipment Purchase Agreement with McLaughlin Waste Equipment, Inc. of Galt, California (on ﬁle in the Records Management Department) for the procurement of roll-oﬀ containers in an amount not to exceed $1,480,000.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

The proposed Amendment No. 1 extends the term of the Agreement to June 30, 2023 and increases the authorized expenditure amount. The expenditure amounts will be increased by $650,000
in the Integrated Waste Fund for Fiscal Year 2021-22 (to be included in the Year-end Budget Update) and $650,000
for Fiscal Year 2022-23. The proposed total authorized
contract amount will be $1,480,000 for the purchase of new and replacement roll-oﬀ containers consistent with future budgets approved by the City Council. In addition, Amendment No. 1 allows for decreases in pricing based on the price of materials under the American Metal Market (AMM) at the time an order is placed. The AMM is an impartial provider of industry news and metal pricing information for the U.S. steel market.

Actual expenditures will be based on the ﬁxed-unit pricing and the quantity of containers that are purchased in order to meet operational needs. The Integrated Waste Rates include funding for the routine replacement of worn-out containers and the purchase of additional containers to meet customer demands.
113
BACKGROUND & ANALYSIS:

On June 21, 2021, the City awarded a Bid (bid #1418) to McLaughlin Waste Equipment, Inc. for the purchase of new roll-oﬀ containers and parts in the amount of $180,000. The Integrated Waste Department currently has roll-oﬀ bin containers of various sizes for refuse, recycling, wood/green waste recycling. The Integrated Waste Department routinely repairs containers to maintain an adequate inventory to meet customer needs. Some containers are too costly to repair and require replacement. In addition, due to the growth of Ontario Ranch and other demands for roll-oﬀ services, $650,000 in additional roll-oﬀ containers is needed. Below is the vendor quote price for the types of roll-off containers to be purchased:

Item No.

Description
Quantity
Unit Cost
Total Amount
1 28 Yd Heavy Duty
Rectangular Roll--
0ff 7/12ga. Dim. 20'
x 60 16'"' Posts &
Crossmembers""
City of Ontario
Specs., primed,
painted your color.
10 $10,626.00
$10,260.00
2 39 Yd Heavy Duty
Rectangular Roll-
off 7/12ga. Dim. 20'
x 84 16'"' Posts &
Crossmembers" ,
City of Ontario
Specs., primed,
painted your color.
40 $12,128.00
$485,120.00

TOTAL VENDOR

QUOTE PRICE

$591,380.00
114
Department: Recreation & Community Services
Prepared By: Nick S Gonzalez
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 17
SUBJECT:

PROCLAMATION OF MAY 21, 2022 AS KIDS TO PARKS DAY

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council proclaim May 21, 2022 as Kids to Parks Day in the City of Ontario.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

There is no direct fiscal impact associated with the approval of this report.

BACKGROUND & ANALYSIS:

Kids to Parks Day is a national day of outdoor play celebrated annually on the third Saturday of May in partnership with the National Park Trust. The National Park Trust is a 501(c)3 non-proﬁt organization with a mission to "preserve parks today and create park stewards for tomorrow." 2022 marks the 12th anniversary of Kids to Parks Day. The day connects kids and families with their local, state, and national parks and public lands through thousands of park events that promote discovery and exploration in the great outdoors.

The City of Ontario will celebrate Kids to Parks Day through programming provided by the Ontario Recreation & Community Services Department. Activities will be provided at ﬁve park locations throughout Ontario. This program provides a great opportunity for Ontario residents to get outside and create fun family experiences. Residents are encouraged to visit multiple park locations throughout the City to learn about the City's park system and enjoy park amenities and services.

Kids to Parks Day locations in Ontario are as follows:

Celebration Park North: Located at 4980 S. Celebration Avenue, activities will be held from 9 AM - 11 AM
Vineyard Park: Located at 1400 E. Sixth Street, activities will be held from 10 AM - 12 PM Anthony Munoz Hall of Fame Park: Located at 1240 W. Fourth Street, activities will be held from 11 AM - 1 PM
Ontario Town Square: 224 N. Euclid Avenue, activities will be held from 12 PM - 2 PM 115
De Anza Park: Located at 1405 S. Fern Avenue, activities will be held from 1 PM - 3 PM

Residents can ﬁnd more information about this event and all other programs, classes, and activities by following the Recreation Department on social media or by visiting www.OntarioCA.gov/Recreation.

116
PROCLAIMING MAY 21, 2022 AS

KIDS TO PARKS DAY IN THE CITY OF ONTARIO
WHEREAS, May 21, 2022, is the twelfth Kids to Parks Day organized and launched by the National Park Trust held annually on the third Saturday of May; and WHEREAS, Kids to Parks Day empowers kids and encourages families to get outdoors and visit local parks, public lands, and waters; and WHEREAS, we should encourage children to lead a more active lifestyle to combat issues of childhood obesity, diabetes, hypertension, and hypercholesterolemia; and
WHEREAS, Kids to Parks Day will broaden children's appreciation for nature and outdoors; and WHEREAS, Kids to Parks Day will recognize the importance of recreating responsibly while enjoying the benefits of the outdoors; and WHEREAS, parks and recreation programs are an integral part of communities throughout this country, including the City of Ontario, California; and WHEREAS, the City of Ontario, California recognizes the benefits derived from parks and recreation resources for the children in Ontario.

NOW THEREFORE, BE IT RESOLVED BY THE ONTARIO CITY COUNCIL that May 21, 2022 is recognized as Kids to Parks Day in the City of Ontario, California. 117
Department: Utilities
Prepared By: Thomas Palmieri
Staff Member Presenting:

Scott Burton, Utilities General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR

INTEGRATED PROJECT CONTROLS, ASSESSMENT, AND REPORTING SERVICES

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

The Fiscal Year 2021-2022 Adopted Capital Improvement Program includes appropriations from the Water and Sewer Capital Fund for these services. This proposed amendment will increase the Agreement's not-to-exceed amount by $200,000, from $99,835 to $299,835. The City and CAPO Project Group, LLC. (CAPO) have agreed to the ﬁxed billing rates and CAPO will be compensated for the scope of work at the approved billing rates. There is no impact to the General Fund.

BACKGROUND & ANALYSIS:

The City’s Water and Sewer Master Plans identify the water production, transmission, distribution, and sewer collection system improvements necessary to serve existing and future residents and businesses of the City. Over the next year, the Water and Sewer Capital Improvement Program (CIP) is projected to expense approximately $37 million in engineering and construction work for water main improvements, sewer main improvements, facility retroﬁts, well facility upgrades and equipping, and the construction of a new water treatment facility. To maintain consistent and accurate reporting of the City’s progress of the Water and Sewer CIP, City Staff needs Integrated Project Controls, Assessment, and Reporting Services. 118
On October 1, 2019, the City awarded a Professional Services Agreement with CAPO entitled “On- Call Project Management Services,” after an extensive Request for Proposal selection process. This Agreement had been previously amended one time for OMUC Capital Project Control Systems Integration and Support Services in the amount of $99,835. Amendment No. 2 will extend these services to September 30, 2023, and increase the consultant’s compensation by an additional $200,000, for a total revised contract amount of $299,835.

Over the last year, CAPO has worked with City Staﬀ to establish the process and tools to eﬀectively and eﬃciently plan and administer the CIP. CAPO provides scheduling, program tracking, and management services for CIP. Retaining CAPO for further program management services will assist in delivering these capital projects in a timely and eﬃcient manner and align the City with water sector industry best practices in the way of capital project management.

Based on the experience and qualiﬁcations of CAPO’s proposed staﬀ and their demonstration of providing a reliable project control system and support services, Staﬀ is recommending utilizing CAPO for the Integrated Project Controls, Assessment and Reporting Services. 119
Department: Utilities
Prepared By: Michael Birmelin
Staff Member Presenting:

Scott Burton, Utilities General Manager
Reviewed By: Dennice Raygoza, Albert G
Gastelum, Michael Sigsbee
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 19
SUBJECT:

TWO PROFESSIONAL SERVICES AGREEMENTS FOR PRETREATMENT PROGRAM &

CIVIL ENGINEERING SUPPORT SERVICES

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following actions:
1 .

Approve and authorize the City Manager to execute a Professional Services Agreement with EEC Environmental of Orange, California, in the amount of $15,000 for Fiscal Year 2021-22, and authorize the cost of $80,000 (with up to a 5% increase) per Fiscal Year (2022-23 to 2027- 28) for a total not-to-exceed of $457,050 for the five years. 2 .

Approve and authorize the City Manager to execute a Professional Services Agreement with Project Partners, Inc., of Laguna Hills, California, in the amount of $35,000 for Fiscal Year 2021-22, and authorize the cost of $120,000 (with up to a 5% increase) per Fiscal Year (2022- 23 to 2027-28) for a total not-to-exceed of $698,075 for the five years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

The Fiscal Year 2021-2022 Adopted Budget includes appropriations from the Water Operating, Sewer Operating, Water Capital, and Sewer Capital Funds for the pretreatment program and engineering support services.

The original term of the Agreements will be from May 2022 to May 2025. At the City’s discretion, up to two additional one-year extensions may be executed. Pricing for each year will be negotiated and any increases will not exceed 5% per year. Exhibit "A" depicts Agreements costs per year and Fiscal Year.
120
Consultants have agreed to ﬁxed billing rates, will be compensated for on-call, as-needed services at the billing rates set forth in their respective agreements. The total compensation paid to any of the consultants in any year under the term of these agreements will be commensurate with City Council approved plans and budgets. There is no fiscal impact to the General Fund.

BACKGROUND & ANALYSIS:

EEC Environmental
The City manages and implements a pretreatment program related to wastewater entering the sewer collection system from permitted customers. The program focuses on enforcement of allowable constituent limits of wastewater entering the sewage collection system which ultimately makes its way to the regional sewage treatment plant owned by the Inland Empire Utilities Agency (IEUA). The City, in eﬀect, is the delegated enforcement agency for IEUA. Two areas of enforcement deal with industrial businesses that discharge high volumes of potent wastewater due to their business product processes and with restaurants that discharge fats, oils, and grease that could impede sewage ﬂow and create maintenance challenges. With the expansion of the City and new industries moving in, the City ﬁnds itself in need of assistance to perform more ﬁeld inspections, permit enforcement tasks, and administration of the pretreatment program.

Project Partners
The City also has a growing water and sewer capital improvement program to implement master- planned water production, transmission, distribution, and sewer collection system improvements necessary to serve existing and future residents and businesses for the City. Additional resources in the form of staff augmentation are also needed to deliver these capital projects in a timely manner.

To facilitate the workload associated, Staﬀ has identiﬁed a need to contract with these ﬁrms to provide professional services. Staff is recommending on-call, as-needed contracts with two qualified consulting ﬁrms. Contracting with two consulting ﬁrms will ensure a cost-eﬀective option and sufficient resources are always available for projects as they arise.

On February 4, 2022, two proposals were received for Bid No. 1492, Pretreatment Program and Civil Engineering support services:

COMPANY

LOCATION
EEC Environmental
Orange, CA
Project Partners, Inc.

Laguna Hills, CA

Using a qualiﬁcations-based selection process, Staﬀ reviewed the proposals and recommends both EEC Environmental and Project Partners, Inc. based on their expertise, ability to perform the work in a timely manner, and successful past performance of this type of work. 121
Exhibit “A”
Agreements Costs Per Year and Fiscal Year

Year Fiscal Year
EEC
Environmental Project Partners
Max % Increase
(Negotiated Yearly)
First Year 21/22 $15,000.00 $35,000.00 N/A
First Year 22/23 $80,000.00 $120,000.00 N/A
Second Year 23/24 $84,000.00 $126,000.00 5%
Third Year 24/25 $88,200.00 $132,300.00 5%
Fourth Year 25/26 $92,610.00 $138,915.00 5%
Fifth Year 26/27 $97,240.50 $145,860.75 5%
Total $457,050.50 $698,075.75

122
Department: Management Services
Prepared By: Claudia Y Isbell
Staff Member Presenting:

Darlene M. Sanchez, Assistant City Manager
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 20
SUBJECT:

A PROCLAMATION DECLARING MAY 2022 AS HUNTINGTON'S DISEASE

AWARENESS MONTH

CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council proclaim May 2022 as Huntington's Disease Awareness Month.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT:

There is no fiscal impact associated with this item.

BACKGROUND & ANALYSIS:

Huntington's Disease is a hereditary neurological disorder that causes gradual deterioration of one's ability to speak, move, and think. This disorder aﬀects more than 30,000 Americans, and each of their children have a 50 percent chance of inheriting the disorder. Tragically, many are unaware they carry the gene, as the disease usually manifests in the middle years, after an individual has established a career and a family. The estimated 200,000 Americans who are at risk of developing the disease may spend years anxiously waiting for the appearance of symptoms.

Presently there is hope for patients and their families as the pace of research has accelerated and scientists are conducting important research into Huntington's Disease. Staﬀ is recommending that the City Council proclaim May 2022 as Huntington's Disease Awareness Month in order to enhance public awareness and to express concern for those impacted by it. 123

PROCLAMATION
WHEREAS, Huntington’s disease is a progressive neurodegenerative disorder affecting more than 30,000 Americans while another 200,000 are genetically at risk of inheriting the expanded gene responsible for causing the disease; and
WHEREAS, each child of a parent with Huntington’s disease has a 50 percent chance of inheriting the condition, which can present at earlier ages in successive generations; and WHEREAS, Huntington’s disease typically occurs in mid-life, between the ages of 30 and 50, although a less common juvenile form can present in childhood or adolescence; and WHEREAS, the average life expectancy of individuals with Huntington’s disease is 10-20 years after symptoms begin, and earlier age of onset is associated with more rapid disease progression; and WHEREAS, since the discovery of the gene that causes Huntington’s disease in 1993, the pace of research has accelerated, and today scientists across the nation are conducting important research into Huntington’s disease, which at present has no effective treatment or cure; and, WHEREAS, it is critical to the success of research and support services to raise awareness in the general public and the medical community about Huntington’s disease; WHEREAS, May 2022, has been proclaimed HUNTINGTON’S DISEASE AWARENESS MONTH in the United States; and
NOW, THEREFORE, the City Council of the City of Ontario, does hereby proclaim May 2022 as Huntington’s Disease Awareness Month.

HUNTINGTON’S DISEASE AWARENESS MONTH
Given this 17th day of May, 2022, by the Ontario City Council Paul S. Leon, Mayor
Alan D. Wapner, Mayor Pro Tem
Jim W. Bowman
Debra Dorst-Porada
Ruben Valencia
Council Members
124
Department: Development Administration
Prepared By: Derrick E Womble
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 21
SUBJECT:

A PUBLIC HEARING TO CONSIDER AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA21-014) BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO, LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP 20449 (FILE NO. PMTT21-014), A

35.65-ACRE PROPERTY LOCATED NEAR THE SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH ROAD, WITHIN PLANNING AREA 9A
(RESIDENTIAL & COMMERICIAL LAND USE DISTRICT) OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF - APN: 0218-211- 01 CITY OF ONTARIO
Agenda Report
May 17, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

The proposed Development Agreement (File No. PDA21-014) will not have a direct impact on the City's General Fund. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Rich Haven Speciﬁc Plan development, thereby mitigating the increased costs associated with such services. In addition, the City will receive public service funding fees plus development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to 125
support the Ontario Ranch development.

BACKGROUND & ANALYSIS:

On December 4, 2007, the City Council certiﬁed the Rich Haven Speciﬁc Plan Environmental Impact Report in conjunction with File No. PGPA07-001. The related Rich Haven Speciﬁc Plan, File No. PSP05-004, was approved by the City Council on December 18, 2007. The Speciﬁc Plan established the land use designations, development standards, and design guidelines for approximately 512 acres of land, which included the potential development of 4,256 residential units and 889,200 square feet of commercial/office land uses.

The Ontario Ranch ﬁnancial commitments required for construction of properties within a speciﬁc plan are substantial. Therefore, in order to adequately forecast these costs and gain assurance that the project may proceed under the existing policies, rules, and regulations, BrookCal Ontario LLC, (“Owner’) has requested that the City enter into negotiations to create a Development Agreement (“Agreement”).

In accordance with California Government Code Section 65865, which in part states that “[a]ny city… may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property…” and California Government Code Section 65865.52, which in part states that “a Development Agreement shall specify the duration of the Agreement, the permitted uses of the property… and may include conditions, terms, restrictions…,” the City of Ontario adopted Resolution No. 2002-100 setting forth the procedures and requirements for consideration of Development Agreements. Furthermore, the Financing and Construction Agreement with the NMC Builders, LLC (“NMC Builders”), requires those developments wishing to use the infrastructure it created to enter into Development Agreements with the City of Ontario. Pursuant to these procedures and requirements, staﬀ entered into negotiations with the Owner to create a Development Agreement for consideration by the Planning Commission and City Council.

The terms of the agreement between NMC Builders’ members requires that members enter into Development Agreements that are consistent with the provisions of the Construction Agreement.

The Agreement proposes to include 35.65 gross acres of land within Planning Area 9A (Residential & Commercial land use district) of the Rich Haven Speciﬁc Plan, as shown on the attached Exhibit A.

The Agreement grants the Owner a vested right to develop Tentative Tract Map 20449 (the “Map”), provided the Owner complies with the terms and conditions of the Agreement, Speciﬁc Plan, and EIR.

The Map (see attached Exhibit B) is located near the southeast corner of Haven Avenue and Ontario Ranch Road and proposes to subdivide approximately 35.65 gross acres of land into 92 numbered lots and 55 lettered lots for residential and commercial uses, public/private streets, landscape neighborhood edges and common open space purposes.

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes:

Development Impact Fees (“DIF”) for construction of public improvements (i.e., streets and bridges, sewer, water, storm drain and ﬁber); Public Service Funding to ensure adequate provisions of public services (police, ﬁre and other public services); and the creation of a Community Facilities 126
District (“CFD”) for the maintenance of public facilities.

In considering the Agreement at their meeting on April 26, 2022, the Planning Commission found that the Agreement was consistent with State law, The Ontario Plan, and the City' Development Agreement policies. As a result, the Planning Commission adopted Resolution No.

PC22-018 with a
6 to 0 vote
, recommending City Council approval of the Agreement.

HOUSING ELEMENT COMPLIANCE
: The project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is one of the properties listed in the Available Land Inventory contained in Table A-3 (Available Land by Planning Area) of the Housing Element Technical Report Appendix, and the proposed project is consistent with the number of dwelling units (298) and density (13.97) specified in the Available Land Inventory.

AIRPORT LAND USE COMPATIBILITY PLAN (ALUCP) COMPLIANCE
: The California State
Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan (“ALUCP”), establishing the Airport Inﬂuence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Inﬂuence Area, as they relate to noise, safety, airspace protection, and overﬂight impacts of current and future airport activity. The proposed project is located within the Airport Inﬂuence Area of Ontario International Airport and was evaluated and found to be consistent with the policies and criteria of the ALUCP. Any special conditions of approval associated with uses in close proximity to the airport are included in the conditions of approval provided with the attached Resolution.

ENVIRONMENTAL REVIEW
: The environmental impacts of this Project were previously analyzed in an Addendum to the Rich Haven Speciﬁc Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certiﬁed Environmental Impact Reports and Approved Addendums and introduces no new signiﬁcant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference. 127
Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN

128
Exhibit B—TENTATIVE TRACT MAP NO. 20449

129

Case Planner: Derrick Womble,
Administrative Officer

Hearing Body Date Decision Action
Planning Director
Approval:

DAB N/A N/A N/A
PC 04/26/2022 Recommend
Submittal Date: 12/09/2021 CC 05/17/2022 Final

FILE NO: PDA21-014

SUBJECT: A public hearing to consider a Development Agreement between the City of Ontario and BrookCal Ontario LLC, to establish the terms and conditions associated with the development of Tentative Tract Map No. 20449 (File No. PMTT21 -014), a 35.65 gross acre property located at the southeast corner of Haven Avenue and Ontario Ranch Road, within Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan; (APN: 218-211-01) submitted by BrookCal Ontario LLC. City Council action is required.

PROPERTY OWNER: BrookCal Ontario LLC., a Delaware limited liability company

RECOMMENDED ACTION: That the Planning Commission consider and recommend the City Council adopt an ordinance approving the Development Agreement (File No.

PDA21-014) between the City of Ontario and BrookCal Ontario LLC, pursuant to the facts and reasons contained in the staff report and attached resolution.

PROJECT SETTING: The project site is comprised of 35.65 gross acres of land located at the southeast corner of Haven Avenue and
Ontario Ranch Road , within Planning
Area 9A (Residential & Commercial) land
use district of the Rich Haven Specific
Plan, depicted in Figure 1: Project
Location, right. The existing surroun ding
land uses, zoning, and general plan and
specific plan land use designations are
summarized in the “Surrounding Zoning &
Land Uses” table located in the Technical
Appendix of this report.

PROJECT ANALYSIS:

(1) Background — On December 4,
2007, the City C ouncil certified the Rich
Haven Specific Plan Environmental
Impact Report in conjunction with File No.

PGPA07-001. The related Rich Haven
Specific Plan , File No. PSP05 -004, was
303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

STAFF REPORT
April 26, 2022

Figure 1: Project Location
130
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 2 of 11 ends

approved by the City Council on December 18, 2007. The Specific Plan established the land use designations, development standards, and design guidelines for approximately 512 acres of land, which included the potential development of 4,256 residential units and 889,200 square feet of commercial/office land uses.

The Ontario Ranch financial commitments required for construction of properties within a specific plan are substantial. Therefore, in order to adequately forecast these costs and gain assurance that the project may proceed under the existing policies, rules, and regulations, BrookCal Ontario LLC, (“Owner’) has requested that the City enter into negotiations to create a Development Agreement (“Agreement”).

In accordance with California Government Code Section 65865, which in part states that “[a]ny city… may enter into a Development Agreement with any person having a legal or equitable interest in real property for the development of such property…” and California Government Code Section 65865.52, which in part states that “a Development Agreement shall specify the duration of the Agreement, the permitted uses of the property… and may include conditions, terms, restrictions…,” the City of Ontario adopted Resolution No. 2002 -100 setting forth the procedures and requirements for consideration of Development Agreements. Furthermore , the Financing and Construction Agreement with the NMC Builders, LLC (“NMC Builders”), requires those developments wishing to use the infrastructure it created to enter into Development Agreements with the City of Ontario. Pursuant to these procedures and requirements, staff entered into negotiations with the Owner to create a Development Agreement for consideration by the Planning Commission and City Council.

The proposed Agreement (File No. PDA21 -014) is based on the model Development Agreement that was developed in coordination with the City Attorney and legal counsel for NMC Builders. This model Development Agreement is consistent with the provisions of the Construction Agreement. The terms of the agreement between NMC Builders’ members requires that members of the LLC enter into Development Agreements that are consistent with the provisions of the Construction Agreement.

(2) Staff Analysis — The Agreement proposes to include 35.65 gross acres of land within Planning Area 9A (Residential & Commercial) lan d use district of the Rich Haven Specific Plan, as shown on the attached Exhibit A. The Agreement grants the Owner a vested right to develop Tentative Tract Map 20449 (the “Map”), provided the Owner complies with the terms and conditions of the Agreement, Specific Plan, and EIR.

131
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 3 of 11 ends

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for all new City expenses created by the project, which includes: Development Impact Fees (“DIF”) for construction of public improvements (i.e. , streets and bridges, sewer, water, storm drain and fiber); Public Service Funding to ensure adequate provisions of public s ervices (police, fire and other public services); and the creation of a Community Facilities District (“CFD”) for the maintenance of public facilities.

Staff finds that the Agreement is consistent with State law, The Ontario Plan, and the City’s Development Agreement policies. As a result, staff is recommending approval of the application to the Planning Commission. If the Planning Commission finds the Agreement is acceptable, a recommendation of approval to the City Council would be appropriate.

COMPLIANCE WITH THE ONTARIO PLAN: The proposed project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan (TOP). More specifically, the goals and policies of TOP that are furthered by the proposed project are as follows:

(1) City Council Goals.

 Invest in the Growth and Evolution of the City’s Economy  Operate in a Businesslike Manner
 Focus Resources in Ontario’s Commercial and Residential Neighborhoods  Invest in the City’s Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
 Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in the New Model Colony

(2) Vision.

Distinctive Development:

 Commercial and Residential Development

 Development quality that is broadly recognized as distinctive and not exclusively tied to the general suburban character typical of much of Southern California.

(3) Governance.

Decision Making:

 Goal G1: Sustained decision-making that consistently moves Ontario towards its Vision by using The Ontario Plan as a framework for assessing choices.

132
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 4 of 11 ends

 G1-2 Long-term Benefit . We require decisions to demonstrate and document how they add value to the community and support the Ontario Vision

(4) Policy Plan (General Plan)

Land Use Element:

 Goal LU1: A community that has a spectrum of housing types and price ranges that match the jobs in the City and that make it possible for people to live and work in Ontario and maintain a quality of life.

 LU1-1 Strategic Growth. We concentrate growth in strategic locations that help create place and identity, maximize available and planned infrastructure, and foster the development of transit.

 LU1-6 Complete Communi ty: We incorporate a variety of land uses and building types in our land use planning efforts that result in a complete community where residents at all stages of life, employers, workers and visitors have a wide spectrum of choices of where they can live, work, shop and recreate within Ontario. (Refer to Complete Community Section of Community Economics Element).

 Goal LU2: Compatibility between a wide range of uses.

 LU2-6: Infrastructure Compatibility : We require infrastructure to be aesthetically pleasing and in context with the community character.

Housing Element:

 Goal H2: Diversity of types of quality housing that are affordable to a range of household income levels, accommodate changing demographics, and support and reinforce the economic sustainability of Ontario.

 H2-4 New Model Colony. We support a premier lifestyle community in the New Model Colony distinguished by diverse housing, highest design quality, and cohesive and highly amenitized neighborhoods.

 H2-5 Housing Design . We require architectural excellence through adherence to Cit y design guidelines, thoughtful site planning, environmentally sustainable practices and other best practices.

Goal H5: A full range of housing types and community services that meet the special housing needs for all individuals and families in Ontario, regardless of income level, age or other status.

133
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 5 of 11 ends

 H5-2 Family Housing . We support the development of larger rental apartments that are appropriate for families with children, including, as feasible, the provision of services, recreation and other amenities.

Community Economics Element:

 Goal CE1: A complete community that provides for all incomes and stages of life.

 CE1-6 Diversity of Housing. We collaborate with residents, housing providers and the development community to provide housing opportunities for every stage of life; we plan for a variety of housing types and price points to support our workforce, attract business and foster a balanced community.

 Goal CE2: A City of distinctive neighborhoods, districts, and corridors, where people choose to be.

 CE2-1 Development Projects . We require new development and redevelopment to create unique, high-quality places that add value to the community.

 CE2-2 Development Review . We require those proposing new development and redevelopment to demonstrate how their projects will create appropriately unique, functional and sustainable places that will compete well with their competition within the region.

 CE2-4 Protection of Investment . We require that new development and redevelopment protect existing investment by providing architecture and urban design of equal or greater quality.

 CE2-5 Private Maintenance. We require adequate maintenance, upkeep, and investment in private property because proper maintenance on private property protects property values.

Safety Element:

 Goal S1: Minimized risk of injury, loss of life, property damage and economic and social disruption caused by earthquake-induced and other geologic hazards.

 S1-1 Implementation of Regulations and Standards. We require that all new habitable structures be designed in accordance with the most recent California Building Code adopted by the City, including provisions regarding lateral forces and grading.

134
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 6 of 11 ends

Community Design Element:

 Goal CD1: A dynamic, progressive city containing distinct neighborhoods and commercial districts that foster a positive sense of identity and belonging among residents, visitors, and businesses.

 CD1-1 City Identity. We take actions that are consistent with the City being a leading urban center in Southern California while recognizing the diverse character of our existing viable neighborhoods.

 CD1-2 Growth Areas . We require development in growth areas to be distinctive and unique places within which there are cohesive design themes.

 CD1-3 Neighborhood Improvement. We require viabl e existing residential and non -residential neighborhoods to be preserved, protected, and enhanced in accordance with our land use policies.

 Goal CD2 : A high level of design quality resulting in public spaces, streetscapes, and developments that are attractive, safe, functional and distinct.

 CD2-1 Quality Architecture . We encourage all development projects to convey visual interest and character through:

• Building volume, massing, and height to provide appropriate scale and proportion;
• A true architectural style which is carried out in plan, section and elevation through all aspects of the building and site design and appropriate for its setting; and
• Exterior building materials that are visually interesting, high quality, durable, and appropriate for the architectural style.

 CD2-2 Neighborhood Design. We create distinct residential neighborhoods that are functional, have a sense of community, emphasize livability and social interaction, and are uniquely identifiable places through such elements as:

• A pattern of smaller, walkable blocks that promote access, activity and safety;
• Variable setbacks and parcel sizes to accommodate a diversity of housing types;
• Traffic calming measures to slow traffic and promote walkability while maintaining acceptable fire protection and traffic flows; • Floor plans that encourage views onto the street and de-emphasize the visual and physical dominance of garages (introducing the front porch as the “outdoor living room”), as appropriate; and
• Landscaped parkways, with sidewalks separated from the curb. 135
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 7 of 11 ends

 CD2-7 Sustainability. We collaborate with the development community to design and build neighborhoods, streetscapes, sites, outdoor spaces, landscaping and buildings to reduce energy demand through solar orientation, maximum use of natural daylight, passive solar and natural ven tilation, building form, mechanical and structural systems, building materials and construction techniques.

 CD2-8 Safe Design. We incorporate defensible space design into new and existing developments to ensure the maximum safe travel and visibility on pathways, corridors, and open space and at building entrances and parking areas by avoiding physically and visually isolated spaces, maintenance of visibility and accessibility, and use of lighting.

 CD2-9 Landscape Design. We encourage durab le landscaping materials and designs that enhance the aesthetics of structures, create and define public and private spaces, and provide shade and environmental benefits.

 CD2-10 Surface Parking Areas. We require parking areas visible to or used by the public to be landscaped in an aesthetically pleasing, safe and environmentally sensitive manner. Examples include shade trees, pervious surfaces, urban run-off capture and infiltration, and pedestrian paths to guide users through the parking field.

 CD2-11 Entry Statements . We encourage the inclusion of amenities, signage and landscaping at the entry to neighborhoods, commercial centers, mixed use areas, industrial developments, and public places that reinforce them as uniquely identifiable places.

 CD2-12 Site and Building Signage. We encourage the use of sign programs that utilize complementary materials, colors, and themes. Project signage should be designed to effectively communicate and direct users to various aspects of the development and complement the character of the structures.

 CD2-13 Entitlement Process. We work collaboratively with all stakeholders to ensure a high degree of certainty in the efficient review and timely processing of all development plans and permits.

 Goal CD3 : Vibrant urban environments that are organized around intense buildings, pedestrian and transit areas, public plazas, and linkages between and within developments that are conveniently located, visually appealing and safe during all hours.

 CD3-1 Design . We require that pedestrian, vehicular, bicycle and equestrian circulation on both public and private property be coordinated and designed to maximize safety, comfort and aesthetics.

136
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 8 of 11 ends

 CD3-2 Connectivity Between Streets, Sidewalks, Walkways and Plazas. We require landscaping and paving be used to optimize visual connectivity between streets, sidewalks, walkways and plazas for pedestrians.

 CD3-3 Building Entrances . We require all building entrances to be accessible and visible from adjacent streets, sidewalks or public open spaces.

 CD3-5 Paving. We require sidewalks and road surfaces to be of a type and quality that contributes to the appearance and utility of streets and public spaces.

 CD3-6 Landscaping. We utilize landscaping to enhance the aesthetics, functionality and sustainability of streetscapes, outdoor spaces and buildings.

 Goal CD5: A sustained level of maintenance and improvement of properties, buildings and infrastructure that protects the property values and encourages additional public and private investments.

 CD5-1 Maintenance of Buildings and Property . We require all public and privately owned buildings and property (including trails and easements) to be properly and consistently maintained.

 CD5-2 Maintenance of Infrastructure . We require the continual maintenance of infrastructure.

HOUSING ELEMENT COMPLIANCE: The project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is one of the properties listed in the Available Land Inventory contained in Table A -3 (Available Land by Planning Area) of the Housing Element Technical Report Appendix, and the proposed project is consistent with the number of dwelling units (298) and density (13.97) specified in the Available Land Inventory.

AIRPORT LAND USE COMPATIBILITY PLAN (ALUCP) COMPLIANCE: The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan (“ALUCP”), establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. The proposed project is located within the Airport Influence Area of Ontario International Airport and was evaluated and found to be consistent with the policies and criteria of the ALUCP. Any special conditions 137
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 9 of 11 ends

of approval associated with uses in close proximity to th e airport are included in the conditions of approval provided with the attached Resolution.

ENVIRONMENTAL REVIEW: The environmental impacts of this Project were previously analyzed in an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports and Approved Addendums and introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

138
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 10 of 11 ends

Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN

139
Planning Commission Staff Report
File No.: PDA21-014
April 26, 2022

Page 11 of 11 ends

Exhibit B—TENTATIVE TRACT MAP NO. 20449

140
RESOLUTION NO. PC22-018

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

ONTARIO, CALIFORNIA, RECOMMENDING THE CITY COUNCIL
APPROVE FILE NO. PDA21 -014, A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO LLC. ,

TO ESTABLISH THE TERMS AND CONDITIONS FOR THE
DEVELOPMENT OF TENTATIVE TRACT MAP 20449 (FILE NO. PMTT21- 014), A 35.65 GROSS ACRE PROPERTY LOCATED NEAR THE

SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH
ROAD, WITHIN PLANNING AREA 9A (RESIDENTIAL & COMMERICIAL)

LAND USE DISTRICT OF THE RICH HAVEN SP ECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-211-01.

WHEREAS, the Application applies to 35.65 gross acres of land generally located near the southeast corner of Haven Avenue and Ontario Ranch road, within Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan; and

WHEREAS, the Applicant has submitted a Tentative Tract Map 20449 (File No.

WHEREAS, the environmental impacts of this Project were previously analyzed in an Addendum to the Rich Haven Specific Plan Envir onmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports and Approved Addendums and introduces no new significant environmental impacts; and

WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in si tuations where the impacts of subsequent projects are adequately analyzed; and

WHEREAS, Ontario Development Code Table 2.02- 1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and

141
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 2 ends

WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and

WHEREAS, the Project is loca ted within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (“ALUCP”), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and

WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and

WHEREAS, on April 26 , 2022, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and

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

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the Planning Commission of the City of Ontario, as follows:

SECTION 1: Environmental Determination and Findings. As the recommending authority for the Project, the Planning Commission has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the Planning Commission finds as follows:

(1) The environmental impacts of this project were previously reviewed in conjunction with an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports (collectively the “Certified EIR”) and Approved Addendums and introduces no new significant environmental impacts; and

142
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 3 ends

(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and

(3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and

(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and

(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.

SECTION 2: Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the Planning Commission, and the specific findings set forth in Section 1, above, the Planning Commission finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:

(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and

(2) Does not constitute substantial changes with respect to the c ircumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and.

(3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:

(a) The project will have one or more significant effects not discussed in the Certified EIR; or

(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or

(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or 143
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 4 ends

(d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3: Housing Element Compliance . Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending authority for the Project, the Planning Commission finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is one of the properties listed in the Available Land Inventory contained in Table A -3 (Available Land by Planning Area) of the Housing Element Technical Report Appendix, and the proposed project is consistent with the number of dwelling units (298) and density (13.97) specified in the Available Land Inventory.

SECTION 4: Ontario International Airport Land Use Compatibility Plan (“ALUCP”) Compliance. The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the ALUCP, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the recommending authority for the Project, the Planning Commission has reviewed and considered the f acts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2- 2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2- 3), [3] Airspace protection Zones (ALUCP Map 2- 4), and [4] Overflight Notification Zones (ALUCP Map 2- 5). As a result, the PLANNING COMMISSION , therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.

SECTION 5: Concluding Facts and Reasons. Based upon the substantial evidence presented to the Planning Commission during the above- referenced hearing, and upon the specific findings set forth in Section 1 through 4 , above, the Planning Commission hereby concludes as follows:

a. The Development Agreement applies to approximately 35.65 gross acres of land located near the southeast corner of Haven Avenue and Ontario Ranch 144
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 5 ends

road, within Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan; and

b. The Development Agreement establishes parameters for the development of the Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and

c. The Development Agreement grants the Owner a vested right to develop Tentative T ract Map 20449 (File No. PMTT21-014) as long as the Owner complies with the terms and conditions of the Specific Plan and EIR. Tentative Tract Map 20449 is located near the southeast corner of Haven Avenue and Ontario Ranch Road , and proposes to subdivide 35.65 gross acres of land into 92 numbered lots and 55 lettered common lots; and

d. The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and

e. The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and

f. This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and

g. This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consiste nt with the previously Certified Environmental Impact Reports and Approved Addendums and introduces no new significant environmental impacts; and

h. This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

145
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 6 ends

SECTION 6: Planning Commission Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the Planning Commission hereby RECOMMENDS THE CITY COUNCIL APPROVE the herein described Application, subject to each and every condition set forth in the Development Agreement (File No.

PDA21-014) attached hereto as “Attachment A,” and incorporated herein by this reference.

SECTION 7: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 8: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East “B” Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 9: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.

- - - - - - - - - - - - - -

146
147
148
Planning Commission Resolution
File No. PDA21-014
April 26, 2022

Page 9 ends

ATTACHMENT A:

File No. PDA21-014

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and

BrookCal Ontario LLC.,
a Delaware limited liability company

(Development Agreement to follow this page)

149

45774.0021C\7810652.1

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196
Exempt from Fees Per Gov. Code § 6103
______________________________________________________________________ Space above this line for Recorder’s Use Only

FILE NO. PDA21-014

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and
BrookCal Ontario LLC
a Delaware limited liability company

_________________________, 2022

San Bernardino County, California
150
-2-

DEVELOPMENT AGREEMENT NO. PDA21-014
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 20 22 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and BrookCal Ontario, LLC., a Delaware limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the term s and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in that Rich -Haven Specific Plan (State Clearinghouse No. 2006051081 (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Rich-Haven Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 151
-3-

improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

WHEREAS, the Property is located in an area of the City of Ontario that has been known as the “New Model Colony” area and the New Model Colony area has now been renamed as “Ontario Ranch.”
WHEREAS, the property developer/owners are made aware of the South Archibald Trichloroethylene (TCE) Plume Disclosure Letter (Exhibit “G”). Property owner may wish to provide the attached Letter as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. This may include notifications in the Covenants, Conditions and Restrictions (CC&Rs) or other documents related to property transfer and disclosures. Additional information on the plume is available from the Santa Ana Regional Water Quality Control Board at http://geotracker.waterboards.ca.gov/profile_report.asp?global_id=T10000004658 .

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

1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “CITY” means the City of Ontario, California, a California municipal corporation.

1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all amendments thereto and “Construction Agreement Amendment” means that First Amended and Restated Agreement for the Financing and Construction of Limited Infrastruct ure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21
st day of August 2012.
152
-4-

1.1.4 “Development” means the improvement of the Property for the purposes of completing the struc tures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of bui ldings 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.

1.1.5 “Development Approvals” means all permits and other entitlements for use subject to approval or issuance by CITY in connection with development of the Property including, but not limited to:
(a) specific plans and specific plan amendments;
(b) tentative and final subdivision and parcel maps;
(c) development plan review;
(d) conditional use permits (including model home use permits ), public use permits and plot plans;
(e) zoning;
(f) grading and building permits.

1.1.6 “Development Exaction” means any require ment of CITY in connection with or pursuant to any Land Use Regulation or Development Approval for the dedication of land, the construction of improvements or public facilities, or the payment of fees in order to lessen, offset, mitigate or compensate for the impacts of development on the environment or other public interests.

1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether 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 t he cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4 , For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges 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, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese- Knox-Hertzberg Local Government 153
-5-

Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.

1.1.8 “Development Plan” means the Existing Development Approvals and the Existing Land Use Regulations applicable to development of the Property.

1.1.9 “Effective Date” means the date that the ordinance approving this Agreement goes into effect.

1.1.10 “Existing Development Approvals” means all Development Approvals approved or issued prior to the Effective Date. Existing Development Approvals includes the Approvals incorporated herein as Exhibit “C” and all other Approvals which are a matter of public record on the Effective Date.

1.1.11 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Effect ive Date. Existing Land Use Regulations includes the Regulations incorporated herein as Exhibit “D” and all other Land Use Regulations that are in effect and a matter of public record on the Effective Date.

1.1.12 “General Plan” means the General Plan adopted on January 27, 2010.

1.1.13 “Improvement” or “Improvements” means those public improvements required to support the development of the Project as described in the Tract Map conditions for Tract No. 20449 as further described in Exhibit “E” and depicted in Exhibit “F” (the “Infrastructure Improvements Exhibit”).

1.1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limita tion, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the desig n, improvement and construction standards and specifications applicable to the development of the Property . “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
154
-6-

(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (e) the exercise of the power of eminent domain.

1.1.15 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.16 “Model Units” means a maximum of nineteen (19) model units , private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.

1.1.17 “OWNER” means the persons and entities listed as owner on page 1 of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.18 “Production Unit(s)” means all units constructed for sale and occupancy by OWNER and excludes the specified number of Model Units constructed by OWNER for promotion of sales.

1.1.19 “Project” means the development of the Property contemplated by the Development Plan, as such Plan may be further defined, enhanced or modifi ed pursuant to the provisions of this Agreement.

1.1.20 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement.

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

1.1.22 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “Rich-Haven Specific Plan.”

1.1.23 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as desc ribed in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions listed in the Construction Agreement Amendment.

1.1.24 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
155
-7-

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

1.1.26 “Water Availability Equivalent (WAE)” means a designated portion of the total Net MDD made available through the construction of each Phase described in the Water Phasing Plan of the Construction Agre ement. The number of Water Availability Equivalents (of portions thereof) required for the issuance of each building permit shall be based upon water demand factors and assumptions listed in the Construction Agreement and Construction Agreement Amendment as “Water Availability Equivalents by Land Use” for each land use category.

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

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

Exhibit “C” — Existing Development Approvals.

Exhibit “D” — Existing Land Use Regulations.

Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Depiction of Required Infrastructure Improvements Exhibit Exhibit “G” - Form of Plume Disclosure Letter

2. GENERAL PROVISIONS.

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

2.2 O
wnership of Property . OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion t hereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 T
erm . The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
156
-8-

(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) I n non- mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building permits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code S ection 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume. OWNER may wish to provide the attached Disclosure Letter (E xhibit G) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY ’s Ci ty Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned; and (2) the payment of the applicable processing charge to cover t he CITY’s review and consideration of such sale, transfer or assignment. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4. 157
-9-

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CI TY wi th security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.3 Effect of Assignment and Release of Obligations . In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exerc ise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.

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

2. 4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstandi ng any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
158
-10-

(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 has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

2.5 Amendment or Cancellation of Agreement . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in in terest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement.

The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering i nto t his Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.5.1 Amendment t o Reflect Consistency With Future Amendments to the Construction Agreement. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amend ment to the Development Agreement to reflect any or all of such modifications.

2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
159
-11-

(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY.

2.7 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, 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. All notices shall be addressed as follows:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Dave Bartlett
BrookCal Ontario LLC
3200 Park Center Drive, Suite 100
Costa Mesa, CA 92626
Phone: 714.200.1533

with a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761

with a copy to:

Tim Roberts
BrookCal Ontario LLC
3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Phone: 714.200.2483

(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 160
-12-

a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

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

3.2 E
ffect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this A greement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, im provement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations.

In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the sam e manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 T
iming of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed.

Such decisions depend upon numerous factors which are not 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 Ca 1. 3 d 465, that t he fa ilure 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 a nd providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 I
nfrastructure Improvement Exhibit . Attach ed hereto as Exhibits “E” and “F” are a description and depiction, respectively, of the improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 R
equirement for Pub lic Infrastructure Improvements. Development of the Property is contingent in part on the phasing of area- wide infrastructure improvements 161
-13-

over which the OWNER has control. The issuance of building permits by CITY for Model Units and Production Uni ts is, in general, contingent on OWNER’s completion of needed infrastructure improvements and the availability of improvements and services to serve the Property.

3.4.1 Attached hereto as Exhibit “ E” and Exhibit “F” are the description and depiction of the infrastructure improvements needed for the development of the Property (“the Infrastructure Improvement Exhibit”).

3.4.2 Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construct ion of a maximum number of nineteen (19) Model Units , private common recreation facilities and sales facilities. CITY may issue a maximum of nineteen (19) building permits for Model Units, private common recreation facilities and sales facilities. The pl an to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Model Units and other facilities.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the E xisting Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority.

If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. 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 Agreemen t provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a req uirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.
162
-14-

3.6.1 Limitations, Reservations and Exceptions . Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a devel opment agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:

(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals;

(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure;

(c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any loc al ame ndments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan;

(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety;

(e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan;

(f) Regulations that may conflict but to which the OWNER consents.

3.6.2 Subsequent Development Approvals. This Agreement shall not pr event CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Developmen t Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 M
odification or Suspension by State or Federal Law . In the event that State or Federal laws or regula tions, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or 163
-15-

suspended as may be necessary to comply with such State or Fede ral laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek decl aratory 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 I ntent. The parties acknowledge and agree that CITY is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations and exceptions are intended to reserve to CITY all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to CITY all such power and authority which cannot be restricted by contract.

3.7 P
ublic Works; Utilities . If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be appl icable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Project. As a further condition of development approval, OWNER shall contract with the CITY for CITY -owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements as described in Exhibit E and depicted in Exhibit F . OWNER agrees that no building permits shall be issued by CITY for Pro duction Units prior to completion of the storm drain improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements as described in Exhibit E and depicte d in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the street improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Prop erty s hall require the extension of water and recycled water utility infrastructure as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and r ecycled 164
-16-

water improvements as described in Exhibit E and depicted in Exhibit F. OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property.

3.7.4 OWNER agrees that development of the Property shall require the extension of sewer improvements, as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production U nits p rior to completion of the sewer improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.5 O WNER agrees that development of the Property shall require the extension of fiber optic communications improvements as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements, as described in Exhibit E and depicted in Exhibit F.

3.8 Acquisition of Offsite Provision of Real Property Interests . In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.8.1 C
ITY Acquisition of Non- Construction Agreement Offsite Property . In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections 3.8.1 and 3.8.2 shall control the acquisition of the necessary property interest(s) (“Non- Construction Agreement Offsite Property”).

If the OWNER is unable to acquire such Non- Construction Agreement Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non- Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non- Construction Agreement Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CI TY sha ll, initiate proceedings utilizing its power of eminent domain to acquire that Non- Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non- Construction Agreement Offsite Property, subject to the 165
-17-

conditions set forth in this Section 3.8. The CITY and OWNER acknowledge that the timelines set forth in this Section 3.8.1 rep resent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non-Construction Agreement Offsite Property. CITY agrees to use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.8.2 Owner’s Option to Terminate Proceedings . CITY shall provide written notice to OWNER no later than fifteen (15) day s prior to making an offer to the owner of the Non- Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non-Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings.

CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non- Construction Agreement Offsite Property.

At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non- Construction Agreement Offsite Property resolution of necessity. If CITY adopts such resoluti on of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Non-Construction Agreement Offsite Property.

3.9 Regulation by Other P ublic Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. 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 T
entative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY’s subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement.; The CITY’s City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond 166
-18-

its original term, so long as the subdivider files a written r equest for an extension with the City prior to the expiration of the initial five (5) year term.

4. PUBLIC BENEFITS.

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

4.2 D
evelopment Impact Fees .

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of exis ting Development Impact Fees. Additionally, nothing contained in this 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 T
ime of Payment. The Development Impact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the iss uance of building permit for each applicable residential or other unit, except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.

4.2.3 P
arkland and Quimby Act Fees . Pursuant to the General Plan (Ontario Plan) Goal PR1, Policy PR1- 5 (achievement of a park standard of 5 ac res of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) acres per 1,000 of projected population without credit, reimbursement, offset or consideration fro m City . Such areas shall either be dedicated to the City or transferred to a homeowners ’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non- public recreation facilities such as private recreational clubhouses or pool facilities.

Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal t o two (2) acres per 1,000 projected population, OWNER shall pay a fee in- lieu equal to the per 167
-19-

acre estimated costs of acquisition and development of parkland in the City’s Development Impact Fee for the calculated park acreage deficiency , at the time the fee becomes due and payable to the City. Such in- lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standards and is open to the public generally, shall entitle OWNER to a credit toward its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordi nance and/or resolution (collectively “ Quimby Act Obligations ”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled to have the City acquire such developed and publicly available parks as Non- Program Interests in accordance with Section 4.3.3 below.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the areawide infrastructure construction within the New Model Colony will be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all tentative tract map conditions. Unless otherwise specified in t he Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of the first building permit for P roduction Units for each such Tract Map.

All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Tract Map conditions for Tract Map No. 20449.

4.3.2 C
onstruction of DIF Program Infrastructure (Construction Agreement) . To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Cr edit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construct ion Agreement and any amendments thereto.

4.3.3 C
onstruction of DIF Program Infrastructure (Non- Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not included the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitation on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and 168
-20-

OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.4 Affordable Housing Requirement.

4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the O WNER’s total approved residential units within the Project, that are affordable to very low, low and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.3.2.1 through 4.3.2.1. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.).

4.4.2 A
fforda bility Spread. Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections

4.4.2.1 or 4.4.2.2 respectively, thirty percent (30%) shall be available to very low income, thirty percent (30% ) shall be available to low income and forty percent (40%) shall be available to moderate income households. “ Households” shall be as defined by California Health and Safety Code Section 50053.

4.4.2.1 N
ew Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwelling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other u nits constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Pr oject.

Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of uni ts, based on the number of building permits for non- restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units.

If OWNER elects the option of constructing new affordable units, a detailed Affordable Housing Agreement specifying terms for the allowable monthly housing costs or rents ( as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. The Affordable Housing Agreement shall hold a recorded priority position senior to any other non- 169
-21-

statutory lien or encumbrance affecting the unit.

4.4.2.2 Rehabilitation . If OWNER elects to fully or partially satisfy the affordable housing requirement by the substantial rehabilitation of existing residential units in the City, it shall substanti ally rehabilitate and restrict the affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided elsewhere within the City. The rehabilitation work shall be substantial and of high quality and shal l also address any deferred property maintenance issues on the property. “Substantial rehabilitation” shall mean rehabilitated multi -family rented dwelling units with three or more units and the value of the rehabilitation constitutes 25 percent of the af ter rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A)(iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of ex isting housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the C ity in order to ensure the faithful completion of such required percentage of rehabilitation.

4.4.2.3 In -Li
eu Fee . If OWNER has not fully complied with the
requirements of Section 4.3.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “ Affordability In - Lieu Fee”. If OWNER has not provided any affordable residential units by construction or rehabilitation, the Affordability In- Lieu fee shall be equal to Two Dollars Sixty -One Cents ($2. 61) per square foot of residential development within OWNER’s Project or, if pre- paid as set forth below, Two Dollars Twenty-Eight Cents ($2. 28) per square foot of residential development within OWNER ’s Project. If OWNER has partially complied with the requirements of Section 4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In- lieu Fee shall be recalculated and reduced in consideration of the nu mber and type of affordable units provided. The Affordability In- Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building permit within OWNER’s Project based on the square footage of the residential unit for which such buildin g permit is sought; provided however that OWNER may, at OWNER’s election, pre- pay such Affordability In- Lieu Fee by paying such Affordability In- Lieu Fee within thirty (30) days following the 170
-22-

earliest discretionary approval by the City for OWNER’s Pr oject, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional use permit, or resolution of intention to form any public financing mechanism.

The Two Dollars, T hirty-Seven Cents ($2.37) and the Two Dollars Seven Cents ($2.0 7) per square foot amounts shall automatically be increased annually, commencing on July 1, 2022 , and automatically each July 1 thereafter. Such adjustment shall be based on the percentage inc rease (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year. The pre- paid Affordability In- Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted w ithin the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In- Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.

4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit for any affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for -sale units and fifty -five (55) years for rentals.

For rental units, base rents shall be established by the City and rental adjustments required by the City shall be performed on an annual basis. In addition, the Affordable Housing Agreement shall impose maximum occupancy limits of 2 occupants per bedroom plus 1 additional occupant per dwelling unit, and a requirement for the owner or tenant to properly maintain each dwelling unit.

4. 4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non- profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one- tenth of o ne percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enforceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.

4.5 S
chools Obligations .
171
-23-

4.5.1 Written Evidence of Compliance with Schools Obligations.

OWNER shall, either through joint or individual agreements between OWNER and the applicable school district(s), shal l satisfy its new school obligations. The new school obligations for the Mountain View School District in the Ontario Ranch area have been projected to include the acquisition or dedication of school sites for, and construction of, up to eight (8) schools . Of these eight (8) schools, six (6) are to be elementary (K -5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Union High School District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school.

The new school obligations for the applicable school district shall be met by a combination of the following: (1) designating and dedicating school site(s) within the Pr operty as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school dis trict that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school di strict(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capacity Availability, or any combination thereof, presented by such OWNER , without liability to the City. To the extent that a joint mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mitigation agreement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.

4.6 P
ublic Services Funding Fee.

4.6.1 Requirement for Payment of Public Services Funding Fee. In order to ensure that the adequate provision of public services, including without limitation, police, fire and other public safety services, are available to the residents of each Project in a timely manner, OWNER shall pay to CITY a “ Public Services Funding Fee .” The Public Services Funding Fee shall apply to residential and non-residential uses as set forth below.

4.6.2 P
ublic Services F unding Fee Amount. OWNER shall pay a Public Services Funding fee in t he total amount of Two Thousand Three Hundred Seventeen dollars ($2,317.00) per residential dwelling unit. The Public Services Funding Fee shall be paid in one (1) installment within one hundred eighty (180) calendar days after the effective date of the Development Agreement or in two (2) installments, at OWNER’s option, as follows:

4.6. 2.1 First Installment (Residential uses) . The First Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential dwelling unit. The First Installment shall be based upon the “ Maximum Development 172
-24-

Density” of the OWNER Project, as defined in Section 3.7.2.3 of the First Amended and Restated Construction Agreement. The First Installment shall be due and payable 30 days following the effective date of the Development Agreement.

If the First installment amount is not paid for all residential dwelling units within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 20 23, the amount of the First Installment shall be increased. Such increase shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year . Additionally, the amount shall be further increased automatically by the percentage increase in the Consumer Price Index (Riverside - San Bern ardino - Ontario, CA) (December 2017=100) on each January 1 thereafter.

4.6.2.2 Second Installment (Residential Uses). The Second Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) p er residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San B ernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1 st of each
year, beginning on January 1, 2023 . OWNER may exercise the option to pay the Second Installment amount for all residential units, a p ortion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Second Installment amount is automatically increased.

4.6. 2.3 Single Installment (Non- residential Uses) . A s ingle installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Cents ($. 70) per square foot of non- residential buildings. The single installment for non- residential uses shall be due and payable prior to the issuance of the building permit for a non- residential building. The amount of the Single Installment for non- residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San B ernardino - Ontario, CA), (December 2017=100) over the preceding year on January 1 st of each
year, beginning on January 1, 2023 . OWNER may exercise the option to pay any single installment amounts for the remainder of the non- residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.7 Net MDD/Water Availability Equivalents.
173
-25-

4.7.1 Assigned Net MDD/Water Avail ability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approv e a final tract map or issue building permits or certificates of occupancy for the area of development within the New Model Colony served by the water system improvements funded by NMC Builders LLC, except to the bearer of an Assignment of Net MDD Water Availability.

4.7.2 Us
e of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall be based upon water demand factors and assumptions listed in E xhibit C- 2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.

4.7.3 R
equirement for other Water System Improvements . A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to an OWNER’s Project, including those relating to design and construction of master -planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.

4.8 S
torm Water Capacity Availability .

4.8.1 Requirement for Storm Water Treatment Capacity Availability . OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserve d in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.6 of this Agreement.

4.8.2 Use of Storm Water Treatment Capacity Availability. The amount of Storm Water Treatment Capacity Availability required for the issuance of a grading permit to OWNER shall be based upon the Net Residential Acreage of the area to be graded regardless of the corresponding use.

4.8.3 Requirement for other Storm Water Improvements . The Certificate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any other conditions applicable to a particular development project, including those relating to on- site water treatment, water quality, connection to the storm water collection system, or other public infrastructure requirements.
174
-26-

4.9 Maintenance of Open Space . OWNER shall provide for the ongoing maintenance of all p ark, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and restrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.

4.10 C
ompliance with Public Benefits Requirements .

4.10.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4. 10, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project- related building permits, certificates of occupancy, or discretionary approvals, without liability.

5. F
INANCING OF PUBLIC IMPROVEMENTS .

5.1 Financing Mechanism(s) . In acco rdance with the Memorandum of Agreement between the CITY and NMC Builders , CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a financing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of public infrastructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provisions of the Memorandum of Agreement between CITY and NMC Builders LLC .

Notwithstanding such reimbursements and acquisitions , OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,560.77 per Single Family Detached Dwelling Unit, $ 1,352.59 per Multiple- Family Dwelling Unit , $ 1,134.29 per Gated Apartment Community Dwelling Unit, and $.29 per square foot for Non- Residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year , unless otherwise modified by the CITY . CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other publi c financing mechanism within the Property on the OWNER mitigating all Project -related impacts to the applicable school district(s) as required by such school district(s).

Written evidence by such school district(s) may be required by the CITY as the 175
-27-

condition t o the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to financ e City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD , assessment district or other public financing mechanism within the Property, shall be subject to CITY’s ability to make all findings required by applicabl e law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended from time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initiati on of Periodic Review . The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non- compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

6.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:

(1) Recommendation of the Planning staff;

(2) Affirmative vote of at least four (4) members of the Planning Commission; or

(3) Affirmative vote of at least three (3) members of t he City Council.

6.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special 176
-28-

review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement. The burden of proof on this issue is upon the OWNER.

6.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the OWNER has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

6.1.6 Procedure Upon Findings.

(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of th is Agreement during the period under review, the review for that period is concluded.

(b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and condi tions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement.

(c) The OWNER may appeal a determination pursuant to
paragraph (b) to the City Council in accordan ce with the CITY's rule for consideration of appeals in zoning matters generally.

6.2 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.

The notice shall contain:

(a) The time and place of the hearing;

(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in t he 177
-29-

administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necess ary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon 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 Agreement remains in effect and (2) OWNER is not in default.

The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the 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 otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

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

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

8.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non- monetary relief are particularly appropriate remedies for the enforcement of th is Agreement and should be available to all parties for the following reasons:
178
-30-

(a) Money damages are unavailable against CITY as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

8.3 Release. Except for nondamage 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 Agreement or because of the terms of this Agreement.

8.4 T
ermination or Modification of Agreement for Default of OWNER . Subject to the provisions contained in Subsections 6.2 a nd 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, h as 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.

8.5 T
ermination of Agreement for Default of CITY . OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such defaul t 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. 179
-31-

9. THIRD PARTY LITIGATION.

9.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’s deter mination.

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

9.2 T
hird Party Litigation Concerning Agreement . OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreem ent or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

9.3 I
ndemnity . In a ddition to the provisions of 9.2 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, age nts, 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 activit ies 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 wi llful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

9.4 E
nvironment Assurances . OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents , employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omi ssion. CITY may in its discretion participate in the defense of any such action. 180
-32-

9.5 Reservation of Rights. With respect to Sections 9.2, 9.3 and 9.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor.

9.6 S
urvival . The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.

10. M ORTGAGEE PROTECTION .

The parties hereto agree that this Agreement shall not preve nt or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CI TY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for givin g notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. (d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall t ake the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligation s or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to 181
-33-

be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shal l continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

11. MISCELLANEOUS PROVISIONS.

11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as pr ovided 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 Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

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

11.3 S
evera bility. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this A greement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

11.4 I
nterpretation and Governing Law . This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof. 182
-34-

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

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

11.7 J oint and Several Obligations. Subject to section 2.4, if at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners .

Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a me mber of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

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

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

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

11.11 F orce Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control, (including the party’s empl oyment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obl igations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years.

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

11.13 S
uccessors in Interest . The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to 183
-35-

do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

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

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

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

11.17 F
urther Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other ma nagement level employee of the CITY.

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

11.19 A gent 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 Dir ector, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, 184
-36-

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 OWN ER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

11.20 Estoppel Certificate . Within thirty (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 Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the respondi ng part y 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 Agreement is i n 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 11.20 prior to CITY’s issuance of such certificates.

11.21 A
uthority to Execute . The person or persons executing this Agreement on behalf of OWNER w arrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
185
-37-

SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT NO. PDA21-014

“OWNER”

BROOKCAL ONTARIO LLC, a Delaware
limited liability company

By:_______________________________
Name: David E. Bartlett
Title: Vice President
Date: ___________________

"CITY"

CITY OF ONTARIO

By:

Scott Ochoa
City Manager

Date: ___________________

ATTEST:

City Clerk, Ontario

APPROVED AS TO FORM:

BEST BEST KRIEGER, LLP

City Attorney
186

38 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me,______________________________________, Date Insert Name and Title of the Officer

personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public

Place Notary Seal Above
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. 187

39 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me ,
Date Insert Name and Title of the Officer

personally appeared
Name(s) of Signer(s)
___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person 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, 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________________________________
Signature of Notary Public

Place Notary Seal Above

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. 188

40 EXHIBIT "A"

TO DEVELOPMENT AGREEMENT

Legal Description of Property

Real property in the City of Ontario, County of San Bernardino, State of California, described as follows:

THE WEST HALF OF THE NORTHWEST QUARTER OF SECTION 13,
TOWNSHIP2 SOUTH, RANGE 7 WEST, SAN BERNARDINO MERIDIAN, IN

THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, ACCORDING TO THE OFFICIAL PLAT THEREOF.

189

41 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

190

42 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT

Existing Development Approvals

On October 23, 2007 the Planning Commission:
a) Issued Resolution No. PC07-125 recommending City Council certification of the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Issued Resolution No. PC07-127 recommending to City Council approval of the Rich-Haven Specific Plan (File No. PSP05-004).

On December 4, 2007, the City Council:
a) Issue d Resolution No. 2007-145 certifying the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Adopted Ordinance No. 2884 approving the Rich-Haven Specific Plan.

On February 23, 2016, the Planning Commission:
a) Issued Resolution No. PC16-003 recommending City Council adoption of an Addendum to the Rich-Haven EIR.
b) Issu ed Resolution PC16-004 recommending approval of the Rich-Haven Specific Plan Amendment (File No. PSPA16-001).

On March 15, 2016, the City Council:
a) Issued Resolution No. 2016-024 for the adoption of an Addendum (File No. PSPA16-001) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2016-025 approving an Amendment (File No.

PSPA16-001) to the Rich-Haven Specific Plan.

On January 23, 2018, the Planning Commission:
a) Issued Resolution No. PC18-014 recommending City Council adoption of an Addendum to the Rich-haven EIR.
b) Issued Resolution No. PC18-015 recommending to City Council adoption of the Rich-Haven Specific Plan Amendment (File No. PSPA16-005).

On February 20, 2018, the City Council:
a) Issue d Resolution No. 2018-017 for the adoption of an Addendum (File No. PSPA16-005) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2018-018 approving an Amendment (File No.

PSPA16-005) to the Rich-Haven Specific Plan.

191

43 EXHIBIT "D"

TO DEVELOPMENT AGREEMENT

Existing Land Use Regulations

These documents are listed for reference only:

1. The Rich -Haven Specific Plan (File No. PSP05- 004) Environmental Impact Report, Resolution No. 2007-145.

2. The Rich-Haven Specific Plan (File No. PSP05-004), Ordinance No. 2884.

3. Addendum to the Rich- Haven Specific Plan (File No. PSPA16- 001) Environmental Impact Report, Resolution No. 2016-024.

4. Amendment to the Rich -Haven Specific Plan (File No. PSPA16- 001), Resolution No. 2016-025.

5. Addendum to the Rich- Haven Specific Plan (File No. PSPA16 -005) Environmental Impact Report, Resolution No. 2018-017.

6. Amendment to the Rich -Haven Specific Plan (File No. PSPA16- 005), Resolution No. 2018-018.

7. City of Ontario Municipal Code
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks & Recreation
192

44 EXHIBIT "E"

TO DEVELOPMENT AGREEMENT

Description of Required Improvements

OWNER shall design, construct, and complete all improvements including but not limited to sewer, water, recycled water, storm drain, fiber, and street i mprovements necessary to serve the Property, prior to the request of any Production Units.

STREETS (ST)

(A) As part of the required ST imp rovements, OWNER shall include the ultimate signing and str iping improvements along the Property frontage on Haven Avenue, including the northbound section of Haven A venue, north of Sc haefer Avenue to Aspen/Nelson, to in stall the two (2) northbound thru lanes with a trap right turn lane at the intersection of Aspen/Nelson.

FIBER OPTIC (FO)

(A) OWNER shall design, construct, complete, and c onnect the FO improvements necessary for the vacant portion of the Property to the nearest point of connection that exist at the time the vacant Property develops. If the vacant Property develops as non- residential (e.g., retail /commercial), O WNER shall construct and complete the connection prior to the request of any occupancy. If the vacant Property develops as residential, O WNER shall construct and complete the connection prior to the request for occupancy of any Production Units.

193

45 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

Depiction of Required Infrastructure Improvements

(SEE ATTACHED)

194

46 195

47 196

48 197

49 198

50 199

51 200

52 Exhibit “G”

TO DEVELOPMENT AGREEMENT

Form of Plume Disclosure Letter

201
ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA21-014, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND BROOKCAL
ONTARIO LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP 20449 (FILE NO.

PMTT21-014), A 35.65 GROSS ACRE PROPERTY LOCATED NEAR THE

SOUTHEAST CORNER OF HAVEN AVENUE AND ONTARIO RANCH
ROAD, WITHIN PLANNING AREA 9A (RESIDENTIAL & COMMERICIAL)

LAND USE DISTRICT OF THE RICH HAVEN SPECIFIC PLAN, AND
MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-211-01.

WHEREAS, BrookCal Ontario, LLC., ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA21-014, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 35.65 gross acres of land generally located near the southeast corner of Haven Avenue and Ontario Ranch road, within Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan; and WHEREAS, the Applicant has submitted a Tentative Tract Map 20449 (File No.

PMTT21-014) to subdivide approximately 35.65 gross acres of land into 92 numbered lots and 55 lettered common lots for residential and commercial uses, public/private streets, landscape neighborhood edges and common open space purposes; and WHEREAS, the environmental impacts of this Project were previously analyzed in an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports and Approved Addendums and introduces no new significant environmental impacts; and WHEREAS, the City's "Local Guidelines for the Implementation of the California Environmental Quality Act (CEQA)" provide for the use of a single environmental assessment in situations where the impacts of subsequent projects are adequately analyzed; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
202
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (“ALUCP”), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on April 26, 2022, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC22-018, recommending the City Council approve the Application; and
WHEREAS, on May 17, 2022, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND RESOLVED by the Planning Commission of the City of Ontario, as follows:

SECTION 1. Environmental Determination and Findings. As the decision- making body for the Project, the City Council has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of this project were previously reviewed in conjunction with an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports (collectively the “Certified EIR”) and Approved Addendums and introduces no new significant environmental impacts; and
(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and (3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
203
(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and
(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.

SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and. (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or (d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending authority for the Project, the Planning Commission finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is one of the properties listed in the Available Land Inventory contained in Table A-3 (Available 204
Land by Planning Area) of the Housing Element Technical Report Appendix, and the proposed project is consistent with the number of dwelling units (298) and density (13.97) specified in the Available Land Inventory.

SECTION 4. Ontario International Airport Land Use Compatibility Plan (“ALUCP”) Compliance. The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the ALUCP, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the recommending authority for the Project, the Planning Commission has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2-2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2-3), [3] Airspace protection Zones (ALUCP Map 2-4), and [4] Overflight Notification Zones (ALUCP Map 2-5). As a result, the City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.

SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
a. The Development Agreement applies to approximately 35.65 gross acres of land located near the southeast corner of Haven Avenue and Ontario Ranch road, within Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan; and
b. The Development Agreement establishes parameters for the development of the Planning Area 9A (Residential & Commercial) land use district of the Rich Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and
c. The Development Agreement grants the Owner a vested right to develop Tentative Tract Map 20449 (File No. PMTT21-014) as long as the Owner complies with the terms and conditions of the Specific Plan and EIR. Tentative Tract Map 20449 is located near the southeast corner of Haven Avenue and Ontario Ranch Road, and proposes to subdivide 35.65 gross acres of land into 92 numbered lots and 55 lettered common lots; and
205
d. The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and e. The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
f. This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
g. This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with an Addendum to the Rich Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2006051081) and an Addendum to The Ontario Plan Environmental Impact Report (State Clearinghouse No. 2008101140). This Application is consistent with the previously Certified Environmental Impact Reports and Approved Addendums and introduces no new significant environmental impacts; and
h. This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6. City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the herein described Application, subject to each and every condition set forth in the Development Agreement (File No. PDA21-014) attached hereto as “Attachment A,” and incorporated herein by this reference.

SECTION 7. Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 8. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East “B” Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are 206
severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 10. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 11. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ____ day of _________ 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
207

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held May 17, 2022, and adopted at the regular meeting held ___________, 20__ by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
I hereby certify that the foregoing is the original of Ordinance No. _______ duly passed and adopted by the Ontario City Council at their regular meeting held ____________ and that Summaries of the Ordinance were published on ___________ and _____________, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
208
ATTACHMENT A:

File No. PDA21-014

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
BrookCal Ontario LLC.,
a Delaware limited liability company
(Development Agreement to follow this page)
209

45774.0021C\7810652.1

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

FILE NO. PDA21-014

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and
BrookCal Ontario LLC
a Delaware limited liability company

_________________________, 2022

San Bernardino County, California
210
-2-