Ontario City Council
June 7, 2022

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.

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.

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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.

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 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.

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 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.

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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. 161
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 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.

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 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 163
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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.

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Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN

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Exhibit B—TENTATIVE TRACT MAP NO. 20449

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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, 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 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

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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

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(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 169
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(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 170
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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.

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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.

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

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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)

175

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
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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 177
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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.
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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 179
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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;
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(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.
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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:
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(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. 183
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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:
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(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.
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(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 186
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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 187
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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.
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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 189
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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 190
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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 191
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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 192
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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 193
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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 194
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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- 195
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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 196
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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 .
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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 198
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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.
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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.
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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 201
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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 202
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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

(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

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 203
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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:
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(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. 205
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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. 206
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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 207
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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. 208
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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 209
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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, 210
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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]
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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
212

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. 213

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. 214

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.

215

41 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

216

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.

217

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
218

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.

219

45 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

Depiction of Required Infrastructure Improvements

(SEE ATTACHED)

220

46 221

47 222

48 223

49 224

50 225

51 226

52 Exhibit “G”

TO DEVELOPMENT AGREEMENT

Form of Plume Disclosure Letter

227
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 & COMMERCIAL)

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
228
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
229
(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 230
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
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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 232
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 7th day of June 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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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. 3209 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 June 7, 2022 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. 3209 duly passed and adopted by the Ontario City Council at their regular meeting held June 7, 2022 and that Summaries of the Ordinance were published on May 24, 2022 and June 14, 2022, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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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)
235

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
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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 237
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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.
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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 239
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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;
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(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.
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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:
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(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. 243
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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:
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(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.
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(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 246
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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 247
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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.
248
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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 249
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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 250
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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 251
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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 252
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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 253
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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 254
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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- 255
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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 256
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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 .
257
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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 258
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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.
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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.
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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 261
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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 262
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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

(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

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 263
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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:
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(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. 265
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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. 266
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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 267
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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. 268
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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 269
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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, 270
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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]
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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
272

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. 273

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. 274

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.

275

41 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

276

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.

277

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
278

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.

279

45 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

Depiction of Required Infrastructure Improvements

(SEE ATTACHED)

280

46 281

47 282

48 283

49 284

50 285

51 286

52 Exhibit “G”

TO DEVELOPMENT AGREEMENT

Form of Plume Disclosure Letter

287
Department: Utilities
Prepared By: Omar Gonzalez
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: 27
SUBJECT:

A PROFESSIONAL SERVICES AGREEMENT FOR WELL NO. 50 TREATMENT FACILITY DESIGN

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve and authorize the City Manager or designee to execute a Professional Services Agreement (on file in the Records Management Department) with GHD, Inc., of Irvine, California, for Well No. 50 Treatment Facility Design, Contract No. UT 1019 in the amount of $399,310, plus a 5% contingency of $19,965, for a total amount of $419,275.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

The Fiscal Year 2021-22 Adopted Budget for Capital Improvement Program includes appropriations from the New Model Colony (NMC) Regional Water Development Impact Fee (DIF) Fund to provide design services for Well No. 50 (DIF Project No. WT08 and Capital Improvement Program No. WA1907). A contingency is requested due to the project location and potential unforeseen underground substructure mitigation. There is no impact to the General Fund.

BACKGROUND & ANALYSIS:

The City’s water system includes 17 active wells that provide 65% of the City’s potable water supply, with a maximum total capacity of 33,100 gallons per minute. The Water Master Plan has identified wellhead treatment as a viable long-term solution to maximize the use of Ontario’s local ground water resources and address water quality changes over time.

Well No. 50 is currently an inactive well and has a perchlorate concentration approaching the Maximum Contaminant Level (MCL) set by the State Division of Drinking Water. Water from Well No. 50 will be needed in the near future to meet growing potable water demand in Ontario Ranch.

A Preliminary Design Report (PDR) completed in October 2020 by GHD, Inc. recommended a treatment process which consists of; an ion exchange treatment facility for Well No. 50, including on-site sodium hypochlorite generation system, mechanical piping, electrical, and instrumentation. 288
A location map is provided for reference (Exhibit A).

The scope of the design services for the Well No. 50 Treatment Facility includes; new treatment equipment, electrical instrumentation and control, sitework and piping, water treatment operations plan, final design, and a complete bid package set of plans and specifications for construction and bid support services.

On March 10, 2022, two proposals were received for Bid No. 1496, Well No. 50 Treatment Facility Design Services:

Firm

Location
GHD, Inc. Irvine, CA Kleinfelder, Inc. San Diego, CA

Using a qualifications-based selection process, Staff reviewed the proposals and recommends GHD, Inc. based on their expertise, understanding of the City’s needs, and history of completing similar projects.
289
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290
Department: Utilities
Prepared By: Andy Marquez
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: 28
SUBJECT:

AN AMENDMENT TO THE MAINTENANCE SERVICE AGREEMENT FOR METER

MAINTENANCE

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve and authorize the City Manager or his designee to execute Amendment No. 1 to the Maintenance Services Agreement (on file in the Records Management Department) with Master Meter, Inc., of Mansfield, Texas, in the amount of $40,000 for Fiscal Year 2022-23, extend the initial term of the Agreement through June of 2023, and authorize the option to extend the Agreement for up to two successive one-year periods in the annual amount of $50,000 each year (FY 2023-24 and FY 2024-25), for a new total not-to-exceed cost of $235,000 for the five years.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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 Adopted Fiscal Year 2022-23 Budget includes appropriations in the Water Operating Fund in the amount of $40,000 for the proposed Meter Maintenance Services.

The original sole source agreement with Master Meter, Inc. was for a total contract amount of $95,000 and covered the initial term from February 2020 to February 2023. The proposed Amendment No. 1 will increase the Agreement by $40,000 to cover anticipated expenditures in FY 2022-23, extend the initial term of the Agreement to June of 2023, and provide the option to extend the Agreement for up to two successive one-year periods in the annual amount of $50,000 for each year (FY 2023-24 and FY 2024-25),
for a new total not-to-exceed cost of $235,000 for the five years.

Unit pricing for each additional year will be negotiated based on the number of new base stations, repeaters, and meter installations, and any increases to the unit cost for service will not exceed 5%. The total compensation paid to Master Meter, Inc. in any year under the term of the agreement will be commensurate with City Council approved plans and budgets. There is no impact to the General Fund.
291
BACKGROUND & ANALYSIS:

Master Meter, Inc. manufactures the “Master Meter Radio Read Meter”, which are installed and used to track water consumption and relay information to the City’s billing system utilizing automated water meter reading capabilities via one Advance Metering Infrastructure (AMI) tower, and fifteen radio repeaters throughout the City. There are currently more than 39,000 water meters citywide that serve residential, industrial, and commercial accounts, as well as landscaped areas, with about 19,000 of these being radio frequency (RF) water meters.

The City currently installs approximately 4,000 new and replacement meters each fiscal year.

The accuracy of RF meters has a direct relationship to accounting and billing for water service. To maintain accuracy and functionality of these meters, Master Meter, Inc. provides preventative maintenance for the network infrastructure which includes communications and system failure monitoring, signal strength accuracy, and services to maintain RF meters at optimized signal strength.

The Master Meter Radio Read Meter was selected as the City’s standard specification for all new and replacement meter installations through a public bid process and product evaluation that took place in 2001. Staff recommends approval of a sole source Amendment to Master Meter, Inc. as they are the manufacturer of the equipment and are the one vendor who provides system monitoring on their manufactured product. Master Meter, Inc. has continuously provided satisfactory work and has performed the required work in a timely manner. 292
Department: Parks & Maintenance
Prepared By: Alfredo Banuelos
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: 29
SUBJECT:

A CONSTRUCTION CONTRACT FOR THE MISSION LANDSCAPE AND IRRIGATION

PROJECT

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council take the following action:

A
.

Reject Golden Gate Steel, Inc.’s protest against SGD Enterprises for PM2122-8 for the Mission Landscape and Irrigation Project;
B
.

Authorize the City Manager or his designee to execute Construction Contract No. PM2122-8 with SGD Enterprises for the Mission Landscape and Irrigation Project for a total bid amount of $626,292;
C
.

Authorize a 10% contingency of $62,629 to address any unforeseen issues that may arise during construction; and
D
.

Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, reductions of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

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 construction cost for the Mission Landscape and Irrigation Project is $626,292, plus a 10% contingency of $62,629, for a total of $688,921. The Fiscal Year 2021-22 Adopted Budget includes appropriations of $688,921 in the Capital Projects Fund.

BACKGROUND & ANALYSIS:

The Mission Boulevard median runs from Benson Avenue to Milliken Avenue and includes landscaped and un-landscaped areas. The Mission Boulevard median from Benson Avenue to Mountain Avenue is landscaped and irrigated with potable water. The landscaping consisted of turf, shrubs, groundcover, and trees. In 2015, the City moved into Stage 2 water restrictions, which prohibited watering of turf medians with potable water. To comply with the Stage 2 water restrictions, the City turned the water off to all the turf areas on the median. 293
Subsequently, all the existing turf died. Shrub, groundcover, and trees remained and continued to be irrigated. In an effort to enhance and beautify the median from Benson Avenue to Mountain Avenue, drought tolerant/climate ready plant material has been selected for the median.

Additionally included as part of the scope for this project is a new high efficient drip irrigation and a monument sign welcoming visitors to the City of Ontario. The new landscaping will be compliant with the state required Model Water Efficient Landscape Ordinance and Stage 2 water restrictions.

The scope of this project also includes landscaping and irrigation on the south side parkway of G Street from Benson Avenue to Mountain Avenue that will also meet the state required Model Water Efficient Landscape Ordinance and comply with Stage 2 water restrictions. The new landscaping will beautify the area and provide a nice walking path.

In April 2022, the City solicited bids for construction services for Construction Contract No. PM2122- 8, Mission Landscape and Renovation Project. Six (6) bids were received and SGD Enterprises, located in Van Nuys, California, was the low bidder. On May 9, 2022, the City received a protest letter from Golden Gate Steel, Inc.. The protest asserts that Golden Gate Steel, Inc. is the lowest responsible bidder submitting a responsive bid because the lowest bid should be determined by the total amount of the base bid and two bid alternates. Specifically, Golden Gate Steel, Inc.’s base bid and two bid alternates totaled $592,700 while SGD Enterprises’ same items totaled $626,292.

Golden Gate Steel, Inc. claims that this should be the basis for award because the City stated in an answer to a question during the bidding period that the basis of award would be based on the base bid plus specified alternates.

The City responded to Golden Gate Steel, Inc. in a letter dated May 13, 2022, stating that the contract documents, or the Notice Inviting Bids and Instructions to Bidders, made clear that the basis of award is determined by the base bid alone. To revise the Notice Inviting Bids and Instructions to Bidders, revisions must be made by written addenda and issued by the City through PlanetBids, the City's online bidding process. The City never issued an addendum revising the basis of award from base bid only to base bid plus specified alternates. The answer by the City regarding the basis of award is not a contract document, and the Notice Inviting Bids and Instructions to Bidders take precedence over the answer. Since the City never specified in the bid forms that the bid alternates would be used along with the base bid to determine the low bidder, SGD Enterprises remains the lowest responsive and responsible bidder.

All the bids received are listed below:

Vendor
Location
Base Bid
Amount
Alternate Bid
#1 Amt
Alternate Bid
#2 Amt
Total Bid
Amount
SGD Enterprises
Van Nuys,
California
$246,292.00
$50,000.00
$330,000.00
$626,292.00
Golden Gate Steel,
Inc.

Norwalk, California
$281,400.00
$43,000.00
$268,300.00
$592,700.00
Conserve
LandCare
Thousand Palms,
California
$386,100.00
$36,500.00
$295,200.00
$717,000.00
294
Southern
California
Landscape, Inc.

Fontana, California
$384,000.00
$39,000.00
$296,000.00
$719,000.00
Kasa
Construction, Inc.

Chino, California
$344,825.00
$76,600.00
$318,600.00
$740,025.00
BrightView
Landscape
Services, Inc.

Calabasas,
California
$495,865.12
$39,998.00
$343,739.59
$879,602.71

SGD Enterprises, of Van Nuys, California, submitted the lowest responsible bid. Based on credentials, pricing, and favorable reference checks, Staff recommends awarding the Mission Landscape and Irrigation Project to SGD Enterprises.
295
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: 30
SUBJECT:

SECOND READING AND ADOPTION OF ORDINANCE NO. 1766 APPROVING A

MILITARY EQUIPMENT USE POLICY PURSUANT TO GOVERNMENT CODE SECTIONS 7070, ET. SEQ.

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council adopt an Ordinance adopting a Military Equipment Use Policy.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies Operate in a Businesslike Manner
FISCAL IMPACT:

There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

Assembly Bill No. 481 ("AB 481") was approved by Governor Newsom on September 30, 2021. AB 481 requires law enforcement agencies to obtain approval of the applicable governing body, by adoption of a Military Equipment Use Policy, as specified, by Ordinance at a regular meeting held pursuant to specified open meeting laws, prior to taking certain actions relating to the funding, acquisition, or use of military equipment.

In addition, state or local law enforcement agencies must publish the policy on the agency's internet website and provide a copy of the policy to the Governor or the Governor's designee. AB 481 allows the governing body to approve the funding, acquisition, or use of military equipment within its jurisdiction only if it determines that the military equipment meets specified standards. AB 481 also requires the governing body to annually review the Ordinance and either approve, disapprove a renewal of the authorization for itemized military equipment, or amend the Military Equipment Use Policy if it determines, based on an annual military equipment report prepared by the law enforcement agency, that the military equipment does not comply with standards for approval.

This is the second reading of Ordinance No. 1766 to approve the Ontario Police Department's Military Equipment Use Policy.
296
ORDINANCE NO. _______

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

CALIFORNIA, ADOPTING A MILITARY EQUIPMENT USE POLICY
PURSUANT TO GOVERNMENT CODE §§ 7070, ET. SEQ.

THE CITY COUNCIL OF THE CITY OF ONTARIO DOES HEREBY FIND AND RESOLVE AS FOLLOWS:

WHEREAS, on September 30, 2021, Governor Gavin Newsom signed into law Assembly Bill 481 (“AB 481”), adding Chapter 12.8, “Funding, Acquisition and Use of Military Equipment”, to Division 7 of Title 1 of the Government Code (sections 7070 – 7075), relating to the use of military equipment by California law enforcement agencies; and
WHEREAS, AB 481 seeks to provide transparency, oversight, and an opportunity for meaningful public input on decisions regarding whether and how military equipment is funded, acquired, or used; and
WHEREAS, the Ontario Police Department is in possession of certain items of equipment that qualify as “military equipment” under AB 481 and further intends to acquire other items of military equipment; and
WHEREAS, AB 481 requires, inter alia, that a law enforcement agency possessing and using such qualifying equipment must prepare a publicly released, written, military equipment use policy document covering the inventory, description, quantity, purpose, capabilities, use, lifespan, acquisition, maintenance, authorized use, fiscal impacts, procedures, training, oversight, and complaint process, applicable to the Department’s use of such equipment; and
WHEREAS, the policy must be approved by the City Council by ordinance, and reviewed annually thereafter; and
WHEREAS, the military equipment inventoried and presented to the City Council is necessary because there is no reasonable alternative that can achieve the same objective of officer and civilian safety; and
WHEREAS, the proposed Military Equipment Use Policy (“Policy”) will safeguard the public’s health, welfare, safety, civil rights, and civil liberties; and WHEREAS, the equipment is reasonably cost effective compared to available alternatives that can achieve the same objective of officer and civilian safety; and WHEREAS, prior military equipment use complied with the applicable equipment use policy (which included equipment now defined as military equipment) that was in effect at the time, or if prior uses did not comply with the accompanying military equipment use policy, corrective action has been taken to remedy nonconforming uses and ensure future compliance; and
297
WHEREAS, the Police Department has submitted the proposed Policy to the City Council and thereafter has made those documents available on the Police Department’s website for at least 30 days prior to the public hearing concerning the military equipment at issue; and
WHEREAS, the Policy satisfies the requirements of Government Code Section 7070(d); and
WHEREAS, the City Council of the City of Ontario, having received the information required under AB 481 regarding the Ontario Police Department’s use of military equipment as defined in said law, deems it to be in the best interest of the City to and hereby does approve the Military Equipment Policy.

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

NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF ONTARIO
HERBY ORDAINS AS FOLLOWS:

SECTION 1. Recitals. The City Council finds that all the recitals, facts, findings, and conclusions set forth above in the preamble of this Ordinance are true and correct.

SECTION 2. Approval of Military Equipment Policy.

Military Equipment Policy.
(a) The Military Equipment Policy shall govern the use of military equipment by the Ontario Police Department. (Exhibit A) (b) The Policy shall be made publicly available on the Police Department’s website for as long as the military equipment is available for use or as otherwise ordained by the City Council.
(c) The Police Department shall submit an annual military equipment report to the City Council containing the information required by Government Code Section 7072 and the City Council shall thereafter determine whether each type of military equipment identified therein complied with the standards for approval set forth in Government Code Section 7071(d). (Exhibit B)
(d) The City Council shall on an annual basis and at a regular meeting thereof review this ordinance and vote on whether to renew it pursuant to Government Code Section 7071(e)(2).
(e) The definitions set forth in Government Code section 7070 shall apply to this ordinance. Any provision of state law referred to herein shall mean and include any amended or successor provision thereof.

SECTION 3. Compliance with CEQA. Adoption of this Ordinance is exempt from the California Environmental Quality Act (CEQA) pursuant to Section 15061 (b)(3) (General Rule) of the CEQA Guidelines because it is not a “project” and because it can be seen with certainty that there is no possibility that the passage of this Ordinance will have a significant effect on the environment. 298
SECTION 4. Inconsistencies. Any provision of the Ontario Municipal Code or appendices thereto inconsistent with the provisions of this Ordinance, to the extent of such inconsistencies and no further, is hereby repealed or modified to that extent necessary to affect the provisions of this Ordinance.

SECTION 5. Uncodified Ordinance. This Ordinance shall not be codified in the Ontario Municipal Code unless and until the City Council so ordains.

SECTION 6. Severability. If any chapter, article, section, subsection, subdivision, sentence, clause, phrase, word, or portion of this Ordinance, or the application thereof to any person, is for any reason held to be invalid or unconstitutional by the decision of any court of competent jurisdiction, such decision shall not affect the validity of the remaining portion of this Ordinance or its application to other persons. The City Council hereby declares that it would have adopted this Ordinance and each chapter, article, section, subsection, subdivision, sentence, clause, phrase, word, or portion thereof, irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, phrases, or portions of the application thereof to any person, be declared invalid or unconstitutional. No portion of this Ordinance shall supersede any local, state, or federal law, regulation, or codes dealing with life safety factors.

SECTION 7. Effective Date. This Ordinance shall become effective thirty (30) days following from its adoption.

SECTION 8. 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 7th day of June 2022. ___________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
299
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
300

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. 3210 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 June 7, 2022 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. 3210 duly passed and adopted by the Ontario City Council at their regular meeting held June 7, 2022 and that Summaries of the Ordinance were published on May 24, 2022 and June 14, 2022, in the Inland Valley Daily Bulletin newspaper. __________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
301
Policy
708
Ontario Police Department
Ontario PD CA Policy Manual - May 05, 2014
Copyright Lexipol, LLC 2022/05/12, All Rights Reserved.

Published with permission by Ontario Police Department ***DRAFT*** Military Equipment - 1 Military Equipment
708.1 PURPOSE AND SCOPE
The purpose of this policy ("Policy") is to provide guidelines for the approval, acquisition, and reporting requirements of military equipment pursuant to Assembly Bill 481 ("AB 481") (California Government Code section 7070, et seq.).
708.1.1 DEFINITIONS
Definitions related to this Policy include those provided in Government Code section 7070, and as follows:

Governing body – The City of Ontario City Council ("City Council").

Military equipment – Includes but is not limited to the following:
• Unmanned, remotely piloted, powered aerial or ground vehicles. • Mine-resistant ambush-protected ("MRAP") vehicles or armored personnel carriers. • High mobility multipurpose wheeled vehicles ("HMMWV)", two-and-one-half-ton trucks, five-ton trucks, or wheeled vehicles that have a breaching or entry apparatus attached.
• Tracked armored vehicles that provide ballistic protection to their occupants. • Command and control vehicles that are either built or modified to facilitate the operational control and direction of public safety units. • Weaponized aircraft, vessels, or vehicles of any kind. • Battering rams, slugs, and breaching apparatuses that are explosive in nature. This does not include a handheld, one-person ram.
• Firearms and ammunition of.50 caliber or greater, excluding standard-issue shotguns and standard-issue shotgun ammunition.
• Specialized firearms and ammunition of less than.50 caliber, including firearms and accessories identified as assault weapons in Penal Code section 30510 and Penal Code section 30515, with the exception of standard-issue firearms. • Any firearm or firearm accessory that is designed to launch explosive projectiles. • Noise-flash diversionary devices and explosive breaching tools. • Munitions containing tear gas or OC, excluding standard, service-issued handheld pepper spray.
• TASER® Shockwave, microwave weapons, water cannons, and long-range acoustic devices ("LRADs").
• Kinetic energy weapons and munitions.
• Any other equipment as determined by the City Council to require additional oversight. 302
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Published with permission by Ontario Police Department ***DRAFT*** Military Equipment - 2 708.2 POLICY
It is the Policy of the City of Ontario Police Department ("Department") that members of this Department comply with the provisions of Government Code section 7070 et seq. with respect to the funding, acquisition, and use of military equipment. 708.3 MILITARY EQUIPMENT COORDINATOR
The Chief of Police will designate a member of this Department to act as the military equipment coordinator. The responsibilities of the military equipment coordinator include but are not limited to:
(a) Acting as liaison to the City Council for matters related to the requirements of this Policy.
(b) Identifying Department equipment that qualifies as military equipment in the current possession of the Department, or equipment the Department intends to acquire, that requires approval by the City Council.
(c) Conducting an inventory of all military equipment annually. (d) Collaborating with any allied agency that may use military equipment within the jurisdiction of the Department.
(e) Preparing for, scheduling, and coordinating the annual community engagement meeting to include:

1. Publicizing the details of the meeting; and

2. Preparing for public questions regarding the Department's funding, acquisition, and use of equipment.
(f) Preparing the annual military equipment report for submission to the Chief of Police and ensuring that the report is made available on the Department website (Government Code § 7072).
(g) Establishing the procedure for a person to register a complaint or concern, or how that person may submit a question about the use of a type of military equipment, and how the Department will respond in a timely manner.
708.4 MILITARY EQUIPMENT INVENTORY
The list of qualifying military equipment for the Department is attached to this Policy. 708.5 APPROVAL
The Chief of Police or the authorized designee shall obtain approval from the City Council by way of an ordinance adopting the Policy. As part of the approval process, the Chief of Police or the authorized designee shall ensure the proposed Policy is submitted to the City Council and is available on the Department website at least thirty (30) days prior to any public hearing concerning the military equipment at issue. The Policy must be approved by the governing body prior to engaging in any of the following:
a) Requesting military equipment made available pursuant to 10 USC § 2576(a). 303
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Copyright Lexipol, LLC 2022/05/12, All Rights Reserved.

Published with permission by Ontario Police Department ***DRAFT*** Military Equipment - 3 b) Seeking funds for military equipment, including but not limited to applying for a grant, soliciting or accepting private, local, state, or federal funds, in-kind donations, or other donations or transfers. c) Acquiring military equipment either permanently or temporarily, including by borrowing or leasing.
d) Collaborating with another law enforcement agency in the deployment or other use of military equipment within the jurisdiction of this Department.
e) Using any new or existing military equipment for a purpose, in a manner, or by a person not previously approved by the City Council.
f) Soliciting or responding to a proposal for, or entering into an agreement with, any other person or entity to seek funds for, apply to receive, acquire, use, or collaborate in the use of military equipment.
g) Acquiring military equipment through any means not provided above. 708.6 COORDINATION WITH OTHER JURISDICTIONS
On occasion, the Department may be required to assist other law enforcement agencies in a formal Law Enforcement Mutual Aid Request ("LEMA") or support with day-to-day operational collaboration (i.e., pursuits, investigative unit assistance, joint law enforcement operations, etc.).

In certain mutual aid or operational collaboration circumstances, it may be necessary for sworn Department members to utilize military equipment in order to fulfill an assigned mission (i.e., civil unrest, SWAT requests, barricaded suspects in a vehicle, etc.). When sworn Department members utilize military equipment in instances of mutual aid or law enforcement collaboration, the following shall apply:
a) Department members are required to adhere to the Department's Military Equipment Procedure and all policies and procedures outlined within the Department's Policy and Procedures Manual, regardless of operational jurisdiction.
b) Should the Police Department request mutual aid from another law enforcement agency within the City and military equipment is required during the course of the response, the following shall apply:
i. The Department will remain in charge of the overall incident command. ii. The Incident Commander or designee will brief the supervisor from the assisting agency and inform them of the mission, enforcement posture, and any pertinent information related to the incident.
iii. The assisting agency will adhere to their respective policies and procedures, particularly those governing the use of military equipment.
iv. If the Incident Commander or their designee is informed of or witnesses the utilization of military equipment by an assisting agency inconsistent with the guidelines set forth in this 304
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Copyright Lexipol, LLC 2022/05/12, All Rights Reserved.

Published with permission by Ontario Police Department ***DRAFT*** Military Equipment - 4 procedure, the Incident Commander may elect to cancel the request for mutual aid or re- assign the assisting agency to a different support mission. 708.7 COMPLIANCE
The use of military equipment is subject to individual Department Policies and Procedures, is restricted for use only in certain instances and, in some cases, only by certain units. It is incumbent upon incident commanders, supervisors, and individual officers to recognize the specific circumstances wherein military equipment should be employed to enhance the safety of the public and officers and to bring a critical incident to a safe resolution.

Department members are bound to adhere to this Department Policies and Procedures, in addition to state and local laws and ordinances when employing the use of themilitary equipment at any time. Violations of the law or Department Policies or Procedures may result in criminal or administrative investigations, and/or actions.

Administrative Investigations concerning complaints related to military equipment will be conducted in accordance with Department policy. These investigations may be subject to review by the Office of the Chief of Police to ensure that compliance with this military equipment procedure is maintained.

Any corrective action or discipline imposed as a result of a violation of this Department Procedure will be administered in accordance with the department policy, relevant employee organization memorandum of understanding (MOU), Civil Service Rules, and state law. 708.8 COMPLAINT PROCESS
In some instances, the application and use of military equipment can cause questions and/ or concerns for members of the community. It is of vital importance that community members' questions regarding the application and use of military equipment are addressed.

The Department is committed to full and fair investigation of citizen complaints. As such, the Department has sound internal procedures for thorough and impartial investigations of citizen complaints. Resolving complaints in a fair, impartial, and expeditious manner will ensure the consistent high level of integrity and efficiency maintained by the Department.

Complaints directly related to the application or use of military equipment shall be handled in accordance with department policy. The Department values open communication and transparency. Community questions and/or concerns regarding the application and use of specified military equipment should be addressed in the following manner:
a) Via the Department internet website where the public can email specific military equipment related questions to the Department.
b) At pre-determined Community Engagement Meetings related to military equipment. c) At City-Council Meetings related to military equipment. 305
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Published with permission by Ontario Police Department ***DRAFT*** Military Equipment - 5 d) In all other circumstances, the public should be directed to the Department Military Equipment Procedure and Annual Military Equipment Report available on the Department's internet website.
708.9 ANNUAL REPORT
The Department shall submit to City Council an annual military equipment report for each type of military equipment approved by the City Council within one (1) year of approval, and annually thereafter for as long as the military equipment is available for use.

The Department shall also make each annual military equipment report required by this section publicly available on its internet website for as long as the military equipment is available for use. The Commanding Officer or their designee shall be responsible for the preparation and submission of the annual military equipment report. The annual military equipment report shall, at a minimum, include the following information for the immediate previous calendar year for each type of military equipment:
a) A summary of how the military equipment was used and the purpose of its use. b) A summary of any complaints or concerns received concerning the military equipment. c) The results of any internal audits, any information about violations of the military equipment use policy, and any actions taken in response, consistent with state law employee privacy restrictions. d) The total annual cost for each type of military equipment, including acquisition, personnel, training, transportation, maintenance, storage, upgrade, and other ongoing costs, and from what source funds will be provided for the military equipment in the calendar year following submission of the annual military equipment report.
e) The quantity possessed for each type of military equipment. f) If the Department intends to acquire additional military equipment in the next year, the quantity sought for each type of military equipment.
g) Within thirty (30) days of submitting and publicly releasing the annual military equipment report, the Department shall hold at least one (1) community engagement meeting, at which the general public may discuss and ask questions regarding the annual military equipment report and the Department's funding, acquisition, or use of military equipment. h) The City Council will determine, based on the annual military equipment report, whether each type of military equipment identified in the report has complied with the standards for approval as set forth by AB 481. If the City Council determines that a type of military equipment identified in the annual military equipment report has not complied with the standards as set forth by AB 481, it may either disapprove a renewal of the authorization for that type of military equipment or require modifications to this military equipment use procedure in a manner that will resolve lack of compliance.
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Ontario Police Department Military Equipment Inventory

I. MILITARY EQUIPMENT TYPES AND USAGE GUIDELINES
The Department recognizes that critical incidents are unpredictable and can be very dynamic in nature. A variety of military equipment options can greatly assist incident commanders, officers, and specific units in bringing those incidents to a swift resolution in a safe manner. The use of military equipment is restricted for use only in certain instances and in some cases only by certain units. Whil e this procedure is wide -ranging, it is not all inclusive. There may be instances wherein unpredictable critical incidents demand the need for incident commanders to authorize military equipment to be used in a manner not outlined within this procedure. In scrutinizing those particular instances, the judgment of the incident commander influenced by the totality of the circumstances, public safety, officer safety, civil rights, and information available at the time will be used.

It is incumbent upon incident commanders, supervisors, individual officers, and specific units to recognize the particular circumstances wherein military equipment should be employed to enhance the safety of the public and officers, and to bring a critical incident to a safe resolution.

The following are the various types, descriptions, and guidelines for usage of military equipment currently employed by the Department.

A. Unmanned remotely piloted, powered aerial or ground vehicles

1. Small Unmanned Aircraft Systems (sUAS): An unmanned aircraft of any type that is capable of sustaining directed flight, whether pre-programmed or remotely controlled, and all of the supporting or attached systems designed for gathering information through imaging, recording or by any other means.

Capability: sUAS can support first responders in any hazardous incident which would benefit from an aerial perspective. These uses could include search and rescue, barricaded suspects or high-risk tactical operations, disaster response, and video and photographic documentation of crime scenes.

Usage: sUAS are to be used by trained pilots during high-risk operations, tactical operations, disaster response, and video and photographic documentation. These pilots receive regular training and flight hours and when applicable adhere to FAA regulations.

Training Requirements: Drone operators attended continual yearly training.

Fiscal Impact: See Appendix A
Lifespan: Approximately five (5) years.

The Department currently possesses the following types of sUAS:
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a. Parrot Anafi Thermal (Quantity: 2)
Manufacturer: Parrot
Description: To balance the resolutions of the thermal image and visible image, and therefore benefit from information not visible in thermal, the displayed image is a fusion of the information from the two cameras. b. LOKI 1 (Quantity: 6)
Manufacturer: Sky-Hero
Description: A handheld drone designed for interior searches. The drone is controlled by a handheld remote control.
c. Evo II (Quantity: 1)
Manufacturer: Autel Robotics
Description: A handheld drone designed for exterior searches. The drone is controlled by a handheld remote control. It has the ability to record video for use with evidence collection.

2. Small Unmanned Tracked Robots: An unmanned tracked robot of any type that is capable of being remotely controlled as well as all of the supporting or attached systems designed for gathering information through imaging, recording or by any other means.

Capability: Small Unmanned Tracked Robots can support first responders in any hazardous incident which would benefit from a ground level perspective. These uses could include barricaded suspects or high -risk tactical operations, disaster response, and use in crawl spaces or confined isolated areas to assist in searches for suspects or evidence.

Usage: Small Unmanned Tracked Robots are to be used exclusively by the Special Weapons and Tactics (SWAT) unit during high-risk operations, disaster response, and in crawl spaces or confined isolated areas to assist in searches for suspects or evidence.

Training Requirements: SWAT Officers regularly train on safe robot deployment in a variety of operational settings.

Fiscal Impact: See Appendix A
Lifespan: Dragon Runner – Lifespan varies with operational usage and wear.

The Department currently possesses the following types of Small Unmanned Tracked Robot:
a. Dragon Runner (Quantity: 1)
Manufacturer: QinetiQm

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Description: Lightweight, expandable, and one-man portable robot that offers protection and support to officers. Designed to provide situational awareness by ‘scouting out’ while the officers remain at a safe distance.

Designed for rapid tactical missions, the robot is simple to operate and quick to deploy for searching rooms, hallways, stairwells, and confined spaces. With rubber tracks, the Dragon Runner effortlessly climbs stairs. It also includes an extendible rotating claw arm that simplifies opening door handles.

B. Armored Personnel Carriers

1. BearCat: An armored rescue vehicle capable of providing high ballistic protection, cover, limited breaching capability, and transport of officers and/or civilians at critical incidents and high-risk tactical operations.

Capability: BearCats can support first responders in any hazardous, high risk, or critical incident which would benefit from having a vehicle that provides a high level of ballistic protection.

Usage: These uses could include active shooters, armed barricaded suspects, hostage situations, high-risk tactical operations, disaster response, officer/citizen rescues, and CBRNE (Chemical, Biological, Radiological, Nuclear, and Explosive) attacks and detection.

Training Requirements: Officers authorized to operate the BearCat are required to successfully complete in house training on its capabilities and must complete a driving assessment during the training period.

Fiscal Impact: See Appendix A
Lifespan: Approximately 20 years depending on operational usage and wear. The Department currently possesses the following types of BearCats:
a. BearCat G2 – 2 Door Model (Quantity: 1)
Manufacturer: Lenco
Description: The Lenco BearCat G2 is the standard armored rescue vehicle for special operations units within the US Law Enforcement community. The G2 has excellent on-road driving characteristics and maneuverability in tight urban settings. The large floor plan seats 10 –12 fully equipped officers or citizens.
b. BearCat G3 – 4 Door Model (Quantity: 1)
Manufacturer: Lenco
Description: The BearCat G3 provides Lenco’s proven armor system in a ruggedized off-road platform. The G3 utilizes the same body design, interior 309
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features, and tactical options as the G2, but it comes standard with a heavier duty upgraded suspension and off -road tires, rims & run flats to provide enhanced off -road performance. The increased ground clearance and robust suspension allows for emergency response in rural regions and natural disaster scenarios where standard armored rescue vehicles would experience challenges.
c. BearCat G3 w/ P3E MARS Ramp System – 3 Door Model (Quantity: 1) Manufacturer: Lenco
Description: The BearCat G3 provides Lenco’s proven armor sy stem in a ruggedized off-road platform. The G3 utilizes the same body design, interior features, and tactical options as the G2, but it comes standard with a heavier duty upgraded suspension and off -road tires, rims & run flats to provide enhanced off -road performance. The increased ground clearance and robust suspension allows for emergency response in rural regions and natural disaster scenarios where standard armored rescue vehicles would experience challenges. This armored rescue vehicle is outfitted with the P3E MARS ramp system which allows officers to safely make entry into or rescue citizens from elevated structures.
d. Rook – (Quantity: 1)
Manufacturer: Ring Power
Description: The Rook is a tracked armored vehicle capable of deploying officers into a critical incident or rescue citizens during a critical incident. It features several attachments capable of moving objects, or vehicles to aide in the peace resolution of a critical incident. The attachments and vehicle also can be used in various natural disaster incidents.

C. Command and Control Vehicles

1. Mobile Command Vehicles: Completely self-contained command posts designed to provide the Incident Commander with a mobile base of operation.

Capability: As a mobile base of operation, these vehicles contain specialized command, control, and communications equipment to assist with this mission.

Usage: Mobile Command Vehicles are to be utilized as an Incident Command Post for planned or unplanned events. Vehicles are also equipped with specialized equipment to assist with numerous types of incidents.

Training Requirements: Officers are frequently train in the operations of Command vehicles.

Fiscal Impact: See Appendix A
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Lifespan: No lifespan indicated by manufacturer. Dependent on operational usage and wear.

The Department currently possesses the following types of Mobile Command Vehicles:
a. SWAT Special Equipment Vehicle – (Quantity: 1)
The SWAT Special Equipment Vehicle is a non-armored vehicle used by SWAT personnel to transport special weapons and equipment to the scene of critical incidents. Once at an incident, it is also used as a SWAT and Tactical Operations Center (TOC).

Manufacturer: Custom Built International Chassis
Description: This vehicle is a custom build. It is capable of transporting various SWAT equipment to a critical incident. It is also outfitted with various radio and computers to aid the Incident Commander.
b. CP131 – Command Post Vehicle - (Quantity: 1)
Manufacturer: Custom Built Freightliner Chassis
Description: This vehicle is a custom-built truck which allows officers to aide in communicating with subjects during critical incidents or can be utilized as a command post during any type of situation.

D. Explosive Breaching Equipment

1. Explosive Breaching Equipment: During crisis situations, it may become necessary for a SWAT team to facilitate an entry into a target location. It is critical the point of entry is breached quickly and as safely as possible. A quick and effective breach is one key to a succes sful tactical mission. In some instances, an explosive breach may be required to provide an added degree of safety and tactical advantage in order to accomplish a mission.

A variety of specialized breaching equipment consisting of explosive materials are possessed by the Department. Explosive Breaching Equipment can only be used exclusively by the SWAT team’s dedicated breaching personnel.

Capability / Usage: Explosive breaching, the use of explosive materials to affect a breach, can be an effective option in SWAT team tactics. An effective breach is a design where the least amount of explosive material is used and still accomplishes its goal. An effective Explosive Breach can defeat fortified doors and walls. Effective breaching techniques allow tactical officers immediate entry with minimal risk to victims, officers, and suspects. An Explosive Breach should only be utilized after taking into consideration the overall mission, officer and citizen safety, the overall construction of the struc ture, the presence of unstable chemicals, explosives, or incendiary materials, and whether other means of 311
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mechanical breaching would be effective and safe to use. The option to use an explosive breach shall be at the discretion of the SWAT Commander.

Training Requirements: Only SWAT Officers that are certified Explosive Breachers are authorized to utilize explosive breaches. SWAT Explosive Breachers must successfully complete a certified Explosive Breaching Course.

Additionally, SWAT Explosive Breachers must maintain proficiency with the use and handling of explosives and explosive breaching techniques.

Fiscal Impact: See Appendix A
Lifespan: Approximately five (5) years.

The Department currently possesses the following types of Explosive Breaching Equipment:
a. Explosive Breaching Equipment Kit – (Quantity: Various) Explosive Breaching Equipment consists of:

1. 50 grain Detonation Cord

2. 20 grain Boosters

3. C2 sheets

4. Shock-tube Blasting Cap
Manufacturer: Southwest Explosives
Description: Explosive breaching, the use of explosive materials to affect a breach, can be an effective option in SWAT team tactics. An effective breach is a design where the least amount of explosive material is used and still accomplishes its goal.

2. Breaching Shotguns and Breaching Ammunition: During crisis situations, it may become necessary for a SWAT team to facilitate an entry into a target location. It is critical the point of entry is breached quickly and as safely as possible. A quick and effective breach is one key to a successful tactical mission. In some instances, a breach initiated by a breaching shotgun loaded with specialized breaching rounds may be required to provide an added degree of safety and tactical advantage in order to accomplish a mission.

Specialized Breaching Rounds, also referred to as TKO round, are frangible and are designed to break into a powder form upon impact with a solid object (i.e., dead bolt lock, door frame, etc.)
The Department possesses a limited inventory of Breaching Shotguns and Breaching Shotgun Ammunition. Breaching Shotguns are to be used exclusively by trained members of the SWAT team.

Capability / Usage: Shotgun breaching, the use of a breaching shotgun to affect a breach, can be an effective option in SWAT team tactics. An effective breach is a 312
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design where the least amount of breaching shotgun rounds is used and still accomplishes its goal. An effective shotgun breach can defeat fortified doors and locks. Effective breaching techniques allow ta ctical officers immediate entry with minimal risk to victims, officers, and suspects.

Training Requirements: SWAT team members regularly train on the use of shotgun breaching.

Fiscal Impact: See Annual Military Report
Lifespan: Remington 870 Police Magnum – Limited lifetime warranty.

Lifespan varies on operational usage and wear
Breaching Shotgun Ammunition – Five (5) year limited warranty.

Five (5) year shelf life.

The Department currently possesses the following types of breaching shotguns and breaching shotgun ammunition:
a. Remington 870 Police Magnum – (Quantity: 5)
Manufacturer: Remington
Description: The Remington 870 Police Magnum pump -action shotgun is a rugged 12-gauge with a short barrel backed by a stout 3” chamber. The all - matte black gun is parkerized for generalized durability and rust -resistance.

Both the pump action for-end and stock are robust and tough synthetic. b. TKO 12-Gauge Breaching Shotgun Rounds – (Quantity: 60) Manufacturer: Defense Technology
Description: The 12-Gauge TKO Breaching Round is a 12-Gauge shell loaded with a compressed zinc slug, utilizing smokeless powder as a propellant. This is a widely used method to breach door locks or hinges for entry during tactical operations. When properly deployed, the TKO is capable of defeating door lock mechanisms, doorknobs, hinges, dead bolts, safety chains, and pad locks on both wooden or hollow core doors. Upon impact with the target, the zinc slug disintegrates into a fine powder eliminating fragmentation.

E. Firearms of .50 Caliber or greater

1. .50 Caliber Rifles: A heavy-duty, bolt-action rifle rated for .50 caliber ammunition that is capable for delivering precision rifle fire at great distances with effective results.

Due to the ever-increasing number of deadly incidents involving vehicle borne attacks and fortified structures both in Southern California and around the country, the SWAT Sniper Team currently employs the use of a .50 caliber rifle to address the unique operational needs presented by these threats. 313
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The requirement and implementation of a .50 caliber rifle are now the standard for many SWAT Teams both in the US and abroad to combat vehicular threats that may arise out of conventional SWAT operations or domestic and international terror attacks.

Capability / Usage: These weapons provide the capability to pierce hard armor, multiple layers of mild steel, or substantial brick, concrete and other materials that may give hard cover to potential suspects. In limited circumstances, these weapons can also be used to disable the engine block of a vehicle posing a clear and present threat to the public (i.e., a vehicle laden with explosives).

Training Requirements: SWAT Snipers receive specific .50 caliber rifle training and must undergo regular training and weapons qualifications to be able to deploy the .50 caliber rifle.

Fiscal Impact: See Appendix A
Lifespan: EDM ARMS – Barrel life rated to approximately 20,000 rounds. a. EDM ARMS Windrunner - (Quantity: 1)
Manufacturer: Bushmaster Firearms
Description: The Windrunner is built to outshine all previous standards for long-range accuracy.

F. Ammunition of .50 caliber or greater

1. .50 Caliber Rifle Ammunition: Rifle ammunition manufactured specifically for .50 caliber Special Application Rifles. This caliber is also referred to as .50 BMG.

Match Ammunition: Designed for when greater distance from a target is encountered and accuracy is needed. Match ammunition rounds excel against heavy barriers and penetrating thick glass.

Fiscal Impact: See Appendix A
Lifespan: Approximately 10-year shelf life.
a. A-Max Match Ammo - .50 BMG 750 grain (Quantity: See Appendix A) Manufacturer: Engel Ballistic Research
Description: 50BMG match grade 750 grain. Match ammunition rounds excel against heavy barriers and penetrating thick glass.

G. Specialized firearms and ammunition of less than .50 caliber, including assault weapons
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1. AR-15 Rifles: A semi-automatic shoulder-fired long gun that fires a rifle caliber cartridge. The Department-approved AR-15 style weapon system is designed to fire a .223/5.56 caliber projectile.

Capability/Usage: The rifle caliber carbine provides officers the ability to engage hostile suspects at distances generally greater than the effective distance of their handguns. Additionally, AR-15 rifles offer advantages over handguns, such as increased accuracy potential and the ability to defeat soft body armor but are not appropriate for every situation.

Training Requirements: All officers attend a POST rifle course and regularly qualify with their rifle. SWAT Officers partake in regular rifle training, and consistent weapons qualifications to maintain proficiency with the AR-15.

Fiscal Impact: See Appendix A
Lifespan: Colt M4 Carbine LWRC IC-45 – Barrel life rated to approximately 12,000 rounds.

Colt M4 Carbine – Barrel life rated to approximately 12,000 rounds.
a. Colt M4 Carbine LWRC M6IC (Quantity: 142)
Manufacturer: LWRC International
Description: Colt style M4 rifle chambered in .223 caliber. These rifles are outfitted with a collapsible stock and flashlight.
b. Colt M4 Carbine (Quantity: 158)
Manufacturer: Colt Manufacturing LLC
Description: Colt M4 rifle chambered in .223 caliber. These rifles are outfitted with a collapsible stock.

2. .308 Caliber Rifles: Rifle’s chambered in a .308 caliber round. These rifles are set up as a semi-automatic rifle or a bolt action. They can be outfitted with various optics and accessories depending on the mission.

Capability / Usage: The .308 rifle provides SWAT Snipers and Air Support personnel the ability to engage hostile suspects at great distances with accuracy.

The .308 rifle platform are typically deployed with the SWAT Team during high- risk SWAT operations and special events or instances wherein Sniper Over Watch Teams are needed. These rifles can also be deployed by the Ontario Air Support Unit for similar situations.

Training Requirements: SWAT team members and the Air Support Unit regularly train and qualify with various weapons systems including the .308 rifle to maintain proficiency.
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Fiscal Impact: See Appendix A
Lifespan: HK 91 – Barrel life rated to approximately 3,000 to 6,000 rounds.

Tactical Ops Tango 51– Barrel life rated to approximately 5,000 rounds.

Sig Sauer 716 – Barrel life rated to approximately 3,000 to 6,000 rounds.

Fiscal Impact: See Appendix A
a. HK 91 Rifle (Quantity: 1)
Manufacturer: Heckler and Koch
Description: Semi-automatic .308 rifle with optic attached. b. Tactical Ops Tango 51 .308 Bolt Action Rifle (Quantity: 6) Manufacturer: Accuracy International
Description: The bolt action Tango 51 is chambered in .308 caliber and is a bolt action rifle.
c. Sig Sauer 716 Rifle (Quantity: 2)
Manufacturer: Sig Sauer
Description: Semi-automatic .308 rifle with optic attached.

3. MP-5 Submachine Guns : A compact, modular, lightweight, shoulder fired, submachine gun capable of semi-automatic or automatic fire chambered in 9mm.

Capability / Usage: The MP -5 submachine gun provides the ability to deliver precision gun fire with a shoulder fired weapons system that is accurate, reliable, and safe. Its compact design allows for ease of maneuverability when operating in the open or within interior environments. The use of the M P-5 submachine gun is relegated to SWAT officers.

Training Requirements: Officers authorized to carry the MP -5 have completed numerous hours of live fire and movement training. Additionally, officers authorized to use the MP -5 must complete weapons qualifications on a regular basis to maintain proficiency.

Fiscal Impact: See Appendix A
Lifespan: Barrel life rated for approximately 50,000+ rounds. a. HK MP5 Submachine Gun (Quantity: 8)
Manufacturer: Heckler & Koch
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Description: Probably the most popular series of submachine guns in the world, it functions according to the proven roller -delayed blowback principle.

Tremendously reliable, with maximum safety for the user, easy to handle, modular, extremely accurate and extraordinarily easy to control when firing.

4. .223 Caliber or 5.56mm Rifle Ammunition : Rifle ammunition manufactured specifically for rifles chambered in 5.56mm or .223 Remington. Currently there are two types of .223/5.56mm caliber rifle ammunition in use operationally by the Department.

Capability / Usage: .223 caliber or 5.56mm rifle ammunition used in conjunction with an AR-15 type rifle provides officers the ability to engage hostile suspects at distances generally greater than the effective distance of their handguns. Rifle ammunition fired from AR -15 rifles offer advantages over handguns, such as increased accuracy potential and the ability to defeat soft body armor but are not appropriate for every situation. For the SWAT Team, the AR -15 is the primar y weapons system utilized by the team. SWAT Officers regularly utilize the AR -15 as their primary weapons system on tactical operations.

Training Requirements: Officers receive POST training and regularly qualify with their weapon.

Fiscal Impact: See Appendix A
Lifespan: Approximately 10-year shelf life.

The Department currently possesses the following types of .223 caliber or

5.56mm rifle ammunition:
a. Federal – FMJ .223 55 grain (Quantity: 100,000)
Manufacturer: Federal
Description: American Eagle rifle ammunition offers consistent, accurate performance at a price that's perfect for high-volume shooting. The loads feature quality bullets, reloadable brass cases and dependable primers. b. Federal – Gold Dot .223 62 grain (Quantity: 30,000)
Manufacturer: Federal
Description: Gold Dot Duty Rifle brings proven bullet technology to rifle platform. Gold Dot rifle bullets are optimized to ensure expansion out of barrels down to 10" at a wide variety of velocities out to 200 yards.

5. .308 Caliber Rifle Ammunition : Rifle ammunition manufactured specifically for rifles chambered in .308 Winchester. Currently there are various types of .308 Winchester caliber rifle ammunition in use by the Department.

Fiscal Impact: See Appendix A
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Lifespan: Approximately 10-year shelf life.

The Department currently possesses the following types of .308 Winchester ammunition:
a. Federal.308 Winchester LE308TT2 Ammunition (Quantity: 2,400) Manufacturer: Federal
Description: Tactical bonded ammunition is made exclusively for law enforcement. It is designed to defeat barriers with minimal deflection.

H. Flashbangs, Chemical Agents, Chemical Agent Delivery Devices, and Pepper Ball Launchers

1. Noise Flash Diversionary Devices (NFDD): Canisters that emit a loud noise and bright light.

Capability / Usage: Diversionary Devices are capable of releasing large amounts of stored energy in the form of heat, light, pressure, and noise. They are intended to temporarily distract, confuse, and disorient subjects. They can also be used as “attention-getting” devices. Diversionary Devices are to be used exclusively by the SWAT team. Noise Flash Diversionary Devices can be used in high -risk tactical operations as an attention getting device. T hey can also be used during high -risk warrants, and hostage rescue incidents to provide an added degree of officer safety by disorienting subjects.

Training Requirements: SWAT Officers regularly train on safe device deployment in a variety of operational settings.

Fiscal Impact: See Appendix A
Lifespan: Defense Technology Multi Port Distraction Device – Five (5) year shelf life.

Liberty Dynamics Distraction Device –Five (5) year shelf life.

The Department currently possesses the following types of Diversionary Devices:
a. Defense Technology Multi Port Distraction Device (Quantity: 80) Manufacturer: Defense Technology
Description: These noise flash diversionary devices have a highly reliable functionality and very precise delay times.
b. Defense Technology Multi-bang (Quantity: 3)
Manufacturer: Defense Technology
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Description: This distraction device is capable of multiple consecutive detonations on one device.
c. Low-roll Distraction Device (Training Device) (Quantity: 50) Manufacturer: Defense Technology
Description: Training device utilizes the same deployment methods with minimal load for training purposes.
d. Liberty Dynamics Distraction Device (Quantity: 175)
Manufacturer: Liberty Dynamics
Description: This diversionary device has the binary energetic material contained within the Enhanced Noise Flash Diversionary device allows for drastically lowered volatility levels, creating a vastly safer and more reliable noise-flash event.

2. Chemical Agents and Chemical Agent Delivery Devices : Compounds, devices, and delivery systems utilized by SWAT, Mobile Field Force, and patrol officers.

Compounds can include irritants such as Chlorobenzalmalononitrile (CS) or an inflammatory agent such as Oleoresin Capsicum (OC) or Pava (synthetic OC).

Chemical agents can be liquid, powder, or gaseous. Delivery systems can be pyrotechnic, blast dispersion, OC Fogger, or aerosol.

Chemical agent delivery devices consist of the following:

Gas Ram: A metal device resembling a handheld pointed battering ram that can be loaded with a chemical agent canister. The gas ram can be used to introduce chemical agents into a location by piercing the wall, door, or roof of a structure.

Burn Safe: A cylindrical metal container designed to contain a pyrotechnic chemical agent canister and reduce fire hazard upon deployment into a structure.

Capability / Usage: Depending on the delivery method, chemical agents are capable of being introduced in close proximity or from a distance. Depending on the type of delivery system and/or quantity, chemical agents can be used to saturate individual suspects, violent crowds, or areas of varied size. Chemical agents are to be used by the SWAT Team, Mobile Field Force, and/or patrol officers. Generally, during high-risk tactical incidents chemical agents can be used to dislodge a suspect from a stronghold location with the least possible danger to citizens, police, and the suspect. Chemical agents can also be used to prevent an armed suspect from accurately firing at citizens and/or officers. They can also be used in limited instances during civil unrest to disperse violent crowds.
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Training Requirements: Officers receive regular training on the deployment and use of chemical agents. Officers are required to pass annual qualifications with the use of chemical agents and chemical agent delivery systems in order to maintain proficiency.

Fiscal Impact: See Appendix A
Lifespan: Defense Technology Chemical Agent Canisters and Munitions - Five (5) year shelf life.

Chemical Agent Delivery Devices - No lifespan indicated by manufacturer. Lifespan varies on operational usage and wear.

The Department currently possesses the following types of chemical agents:
a. SPEDE-HEAT CS Model - (Quantity: 62)
Manufacturer: Defense Technology
Description: The Spede-Heat CS munition is a high volume, continuous burn it expels its payload in approximately 20-40 seconds. The payload is discharged through four gas ports on top of the canister, three on the side and one on the bottom. This munition holds approximately 2.9 oz. of active agent. b. 40mm Liquid Ferret - (Quantity: 175)
Manufacturer: Defense Technology
Description: These launchable munitions are capable of being deployed into a structure, through barriers, to deploy chemical agent into a structure at a safe distance.
c. Chemical Agent CS Pocket Tactical – Model 1016 (Quantity: 4) Manufacturer: Defense Technology
Description: The Pocket Tactical CS munition is small, and lightweight. The

0.9 oz. of active agent will burn approximately 20-40 seconds. At 4.75 in. by

1.4 inches in size, it easily fits in most tactical pouches. d. Maximum HC Smoke Model 1073 - (Quantity: 29)
Manufacturer: Defense Technologies
Description: Pyrotechnic smoke grenade used for concealment or as a signaling device.
e. 37mm Multiple Foam Baton – Model 6299 (Quantity: 379) Manufacturer: Defense Technology
Description: The 37mm foam baton round contains three foam projectiles. f. 40mm Skat Shell – Model 6172 (Quantity: 62)
Manufacturer: Defense Technology
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Description: The 40mm Skat shell is designed to deliver multiple CS canisters from a 40mm launcher. It has a maximum effective range of 80-100 yards. g. Instantaneous Blast CS – Model 1042 (Quantity: 52)
Manufacturer: Defense Technology
Description: The instantaneous blast CS munition is designed for indoor or outdoor use; this munitions powder is expelled upon initiation of a small internal detonator that has sufficient force to split the canister at six machined groves on the outside surface.
h. Pocket Tactical Saf-Smoke – Model 1017 (Quantity: 38) Manufacturer: Defense Technology
Description: This munition is small and lightweight. It will burn approximately 20-40 seconds.
i. CS Flameless Tri-Chamber – Model 1032 (Quantity: 43) Manufacturer: Defense Technology
Description: The flameless tri-chamber allows the contents to burn within an internal can and disperse the agent safely with reduced risk of fire. j. CS Triple-Chaser Canister – Model 1026 (Quantity: 52) Manufacturer: Defense Technology
Description: The triple-chaser CS consists of three separate canisters pressed together with separating charges between each. When deployed, the canisters separate and land approximately 20 feet apart allowing increased area coverage.
k. 40mm Muzzle Blast – Model 6042 (Quantity: 79)
Manufacturer: Defense Technology
Description: The 40mm muzzle blast CS round is widely used as a crowd management tool for the immediate and close deployment. l. Gas Ram – Chemical Agent Delivery Device (Quantity: 3) Manufacturer: Custom build
Manufacturer Description: The gas ram is a double walled container constructed of steel designed to contain the flames of a pyrotechnic chemical agent canister. There is a large metal probe attached to one end designed to penetrate walls to deploy the chemical agent inside a structure from outside. m. Burn Safe – Chemical Agent Delivery Device (Quantity: 2) Manufacturer: Burn Safe
Manufacturer Description: The Burn Safe is a double walled container constructed of aluminum. It is designed to contain the flames inside the inner chamber thereby reducing the probability of starting a fire. The Burn Safe allows the introduction of significant amounts of pyrotechnic non-lethal 321
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chemical agent into the target, which increases the probability of a successful resolution.

3. Pepper Ball Launchers and Pepper Ball Munitions: A non-lethal munitions system that employs paint ball launchers to fire “pepper balls” that contain powdered synthetic OC in place of the paint. The pepper ball delivery system combines chemical agent exposure with kinetic energy impact to aid in its effectiveness in addressing armed and/or violent individuals or crowds. Pepper ball munitions also include glass breaking rounds.

Capability / Usage: Pepper ball launchers give officers the ability to address an armed and/or violent suspect(s) with a non-lethal munition that delivers both chemical agent and kinetic energy impact. This combination can be extremely effective in gaining compliance or reducing threat potential with an armed and/or violent suspect(s). Due to its design, pepper balls can be delivered from a larger standoff distance allowing for an added degree of officer safety. Pepper ball launchers and pepper ball munitions can be used to address armed and/or violent individuals or crowds, limited instances of violent civil unrest, suicidal individuals, and individuals believed to possess or have immediate access to a deadly weapon. Pepper ball munitions can be effective in driving suspects from confined spaces or vehicles.

Training Requirements: Officers undergo regular live fire proficiency training.

Additionally, Officers are required to qualify with pepper ball launchers on a consistent basis to maintain proficiency.

Fiscal Impact: See Appendix A
Lifespan: Pepper Ball Launcher – No manufacturer life span indicated by manufacturer.

Pepper Ball Munitions – Approximately three (3) year shelf life.

The Department currently possesses the following types of pepper ball launchers and pepper ball munitions:
a. Tippman FTC Pepper Ball Launcher (Quantity: 12)
Manufacturer: Tippman
Manufacturer Description: The Tippmann FTC paintball marker is a compact marker launcher.
b. PepperBall Live – (Quantity: 4,000)
Manufacturer: PepperBall
Description: A potent and powerful concentration of PAVA pepper powder.

One round of LIVE-X contains 2% PAVA.
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n. PepperBall Glass Breaker – (Quantity:80)
Manufacturer: PepperBall
Description: Used to break side glass of vehicles and residential glass windows.
o. PepperBall Inert – (Quantity: 3,000)
Manufacturer: PepperBall
Description: Containing a harmless, scented powder, this projectile is best suited for training, qualifications, and direct impact when chemical exposure is not desired.

I. Extended Range Impact Weapons, Projectile Launcher Platforms, Munitions, and Specialty Impact Munitions (SIM)

1. 40mm Launchers (Projectile Launch Platforms): A single shot or multi-shot Extended Range Impact Weapon launcher capable for firing a variety of 40mm rounds. The Department also has a limited inventory of 37mm launchers that share the same characteristics as 40mm launchers but are chambered for 37mm munitions.

Capability / Usage: 40mm launchers are capable of firing a variety of munitions with a maximum effective range of one hundred twenty (120) feet. 40mm launchers can deliver 40mm munitions in the form of chemical agents, and sponge baton rounds. The 40mm launchers utilized with less lethal sponge baton rounds are designed to impact armed and/or violent suspects so officers can gain compliance, overcome resistance, or prevent serious injury or death to bystanders, officers, and the suspect. 40mm single launchers combined with less lethal 40mm sponge baton rounds are authorized to be used by any officer that has been trained in its use and maintains current qualifications.

Training Requirements: Officers that have been trained in the use of the 40mm single launcher undergo thorough training in its use. Additionally, officers trained in the use of the 40mm single launcher must pass annual qualifications to maintain proficiency.

Fiscal Impact: See Appendix A
Lifespan:

Defense Technology 40mm Launchers – Two (2) year limited warranty. No lifespan indicated by manufacturer. Dependent on operational usage and wear.

Defense Technology 37mm Launchers – No lifespan indicated by manufacturer. Lifespan varies on operational usage and wear. 323
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The Department currently possesses the following types of 40mm launchers:
a. Def Tech – Model 1425 (Quantity: 11)
Manufacturer: Defense Technology
Description: The 40mm will fire standard 40mm Less Lethal ammunition, up to 4.8 inches in cartridge length.
b. LMT – 40mm Launcher (Quantity: 20)
Manufacturer: Lewis Machine & Tool
Description: The 40mm will fire standard 40mm Less Lethal ammunition, up to 4.8 inches in cartridge length.
c. Def-Tec – Model 1415 (Quantity: 4)
Manufacturer: Defense Technology
Manufacturer Description: The 37mm will fire standard 37mm Less Lethal ammunition, up to 8 inches in cartridge length.
d. Def-Tec 40mm 6-Shot Launcher (Quantity: 2)
Manufacturer: Defense Technology
Description: Designed for riot and tactical situations, the 40mm 6-Shot Launcher is low-profile and lightweight, providing multi-shot capability in an easy to carry launcher.

2. 40mm Ammunition: The 40MM round is a sponge baton cartridge. The sponge round has a blue-colored nose with a black base. The casing is stainless.

Fiscal Impact: See Appendix A
Lifespan: Five (5) year shelf life.

The Department currently possesses the following types of 40mm direct impact ammunition:
a. eXact iMpact 40mm Sponge Round – Model 6325 (Quantity: 900) Manufacturer: Defense Technology
Description: The eXact iMpact 40 mm Sponge Round is a point-of-aim, point- of-impact direct-fire round. This lightweight, high-speed projectile consisting of a plastic body and sponge nose that is spin stabilized via the incorporated rifling collar and the 40 mm launcher’s rifled barrel. Used for Crowd Control, Patrol, and Tactical Applications.

J. Night Vision Equipment and Infrared Sighting Systems

1. Night Vision Optical Devices: A night-vision device (NVD), also known as night optical/observation device (NOD) or night-vision goggles (NVG) is an 324
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optoelectronic device that allows images to be produced in low levels of light approaching total darkness.

Capability / Usage: Night Vision Optical Devices provide the user the ability to see an enhanced image during darkness. The use of this equipment allows a tactical advantage for officers especially when operating in low light or dark environments. The majority of SWAT tactical operations occur at night or are conducted in low light environments. Having NVD’s allows for SWAT Officers to have a tactical advantage and an added degree of officer safety when operating in those conditions. The use of NVD’s is extremely advantageous during high-risk operations, hostage rescue, active shooter, and tactical operations in a wide range of environments.

Training Requirements: SWAT Officers maintain proficiency by continual training and annual weapons qualifications with NVD’s.

Fiscal Impact: See Appendix A
Lifespan: Approximately 10,000 hours.

The Department currently possesses the following types of Night Vision Optical Devices:
a. Pinnacle Gen3 Night Vision – (Quantity: 30)
Manufacturer: Night Vision Depot
Description: Pinnacle Gen3 Night Vision Device is a compact, lightweight, high-performance white phosphor dual-tube goggle.
b. L3 Warrior – (Quantity: 3)
Manufacturer: L3
Description: The L3 Warrior Night vision scope can be attached quickly to the rifle to allow for enhanced vision during nighttime operations. It works in conjunction with the rifle’s optics for improved vision.

2. Infrared Sighting Systems: A device attached to a firearm to aid in target acquisition. Unlike optical and iron sights where the user looks through the device to aim at the target, laser sights project a beam onto the target that provides a visual reference point. This device is used in conjunction with NVD’s to aid in rapid and accurate target acquisition.

Capability / Usage: This equipment, when combined with NVD’s, provide the user the ability to see an enhanced image during low light conditions or darkness.

The use of this equipment allows for a tactical advantage for officers. It allows officers to obtain accurate and rapid target acquisition especially when operating in a multitude of low light or dark environments. Most SWAT operations occur at night or are conducted in low light environments. Having NVD’s in conjunction 325
- 20 -
with infrared sighting systems allows for SWAT Officers to have a tactical advantage and an added degree of officer safety when operating in those conditions. The use of NVD’s combined with infrared sighting systems are extremely advantageous during high-risk operations, hostage rescue, active shooter, and tactical operations in a wide range of environments. Infrared sighting systems are to be used exclusively by the SWAT Unit. Night Vision optical enhancement devices combined with infrared sighting systems may be utilized during tactical missions with approval from the SWAT Commanding Officer or SWAT Executive Officer.

Training Requirements: SWAT Officers maintain proficiency by continual training and annual weapons qualifications with NVD’s and infrared sighting systems.

Fiscal Impact: See Appendix A
Lifespan: Approximately 10,000 hours.

The Department currently possesses the following types of infrared sighting systems:
a. MAWL IR Designator (Quantity: 30)
Manufacturer: B.E. Meyers
Description: The MAWL has an IR light and IR laser which work in
conjunctions with night vision devices to illuminate and aide in aiming a
weapon system.

II. MILITARY EQUIPMENT MAINTENANCE AND INVENTORY
All military equipment shall be maintained and inventoried in accordance with department policy.
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MILITARY PROCEDURE APPENDIX – A
FISCAL IMPACT – Fiscal Year 2022 (May 2022 – May 2023)
Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Loki I $13,600 Varies on Usage
Anafi Thermal $7,439 Varies on Usage
Evo II $1,825 Varies on Usage
Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Dragon Runner $46,000 Varies on Usage
Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Bearcat G2 (2 Door) $205,568 Varies on Usage
Bearcat G3 (4 Door) $315,835 Varies on Usage
Bearcat G3 (Ramp) $302,609 Varies on Usage
Rook $570,000 Varies on Usage
Equipment Name and
Model / Manufacturer
Initial Unit Cost Ongoing Annual Cost FY22 (approximate) SWAT Equipment
Vehicle
$271,715 Varies on Usage
CP131 $124,708 Varies on Usage
Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Explosive Breaching Kit $3,850 $202,010 (total SWAT equipment budget) Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Remington 870
Breaching Shotgun
$800 Each $150,000 (total ammo budget)
TKO 12 Gauge
Breaching Shotgun
Rounds
$8.15 Per Box (6) $150,000 (total ammo budget)

Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Windrunner .50 cal $7,144 Varies on Usage
Match Ammunition - .50
BMG .510” 750 grain
$59 Per Box (10) $150,000 (total ammo budget)

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Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
AR-15 Colt LWRC $1,949 Each Varies on Usage
.308 Semi-auto HK91 $3,899 Each Varies on Usage
.308 Tango 51 $7,999 Each Varies on Usage
HK MP5 $3,275 Each Varies on Usage
.380 Sig Sauer 716 $1,350 Each Varies on Usage
Federal FMJ 55 grain $179 Per Case $150,000 (total ammo budget) Gold Dot .223 62 grain $287 Per Case $150,000 (total ammo budget) HSM 750g A-Max .308 $49 Per Box $150,000 (total ammo budget) Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Def Tec Flashbang $38.60 Each $202,010 (total SWAT equipment budget) Def Tec Multi-bang $70.00 Each $202,010 (total SWAT equipment budget) Training Flash Bang $58.50 Each $202,010 (total SWAT equipment budget) Liberty Dynamics Flash
Bang
$18,694 Total $202,010 (total SWAT equipment budget)
SPEDE Heat $33.05 Each $202,010 (total SWAT equipment budget) 40mm CS Ferret $26.15 Each $202,010 (total SWAT equipment budget) Pocket Tactical CS $28.00 Each $202,010 (total SWAT equipment budget) Maximum HC Smoke $32.60 Each $202,010 (total SWAT equipment budget) 37mm Foam Baton $24.50 Each $202,010 (total SWAT equipment budget) 40mm Skat Shell $40.65 Each $202,010 (total SWAT equipment budget) Instantaneous Blast CS $54.60 Each $202,010 (total SWAT equipment budget) Pocket Tactical Smoke $32.60 Each $202,010 (total SWAT equipment budget) CS Flameless Tri
Chamber
$46.25 Each $202,010 (total SWAT equipment budget)
CS Triple Chaser $46.25 Each $202,010 (total SWAT equipment budget) 40mm Muzzle Blast CS $26.75 Each $202,010 (total SWAT equipment budget) Gas Ram $3,250 Each $202,010 (total SWAT equipment budget) Burn Safe $155.40 Each $202,010 (total SWAT equipment budget) Tippman FTC $499 Each $13,850 (Department equipment budget) PepperBall Live $899 Box $13,850 (Department equipment budget) PepperBall Glass
Breaker
$3.00 Per Round $13,850 (Department equipment budget)
PepperBall Inert $300 Per Case $13,850 (Department equipment budget) Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Def-Tec 40mm
Launcher
$985 Each $13,850 (Department equipment budget)
LMT 40mm Launcher $985 Each $13,850 (Department equipment budget) Def-Tec 37mm
Launcher
$884.50 Each $13,850 (Department equipment budget)
Def-Tec 40mm multi-
Launcher
$2,369 Each $13,850 (Department equipment budget)
eXact iMpact 40mm
Sponge Round
$30 Each $13,850 (Department equipment budget)

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Equipment Name and
Model / Manufacturer
Initial Cost Ongoing Annual Cost FY22 (approximate)
Pinnacle Gen3 NODs $6,995 Each Varies on Usage
L3 Warrior Optic $7,999 Each Varies on Usage
MAWL Designator $2,999 Each Varies on Usage

329
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: 31
SUBJECT:

AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT FOR MUSEUM

EXHIBIT DESIGN FOR THE BUILT ON WATER EXHIBIT

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve and authorize the City Manager or his designee to execute Amendment No. 3 (on file with the Records Management Department) to the Professional Services Agreement with Picnic Design of Los Angeles, California. This agreement encompasses design services for the Built on Water exhibit currently under construction at the Ontario Museum of History & Art. Amendment No. 3 adds $13,800 to the agreement, for a revised total contract amount of $105,000.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

Amendment No. 3 increases the existing agreement by $13,800 for a total contract amount of $105,000. To date, $50,000 of the contracted amount has been paid from grant funding awarded by the Institute of Museum and Library Services (IMLS), $22,250 has been paid from Capital Improvement Project (CIP) funds, and $18,950 has been paid from the city’s general fund through a cash match as required by the IMLS grant. The remaining $13,800 will be paid through funding already budgeted in the Museum general fund operating budget for FY 2021-22.

BACKGROUND & ANALYSIS:

In 2018, the Ontario Museum of History & Art received a federal grant from the Institute of Museum and Library Services (IMLS) for a new permanent exhibit called Built
on Water: Ontario and Inland Southern California
. This exhibit will focus on the history and future of
water in Ontario and the surrounding region. This multi-year project supports the development of the exhibit, related programming, and technological components. The exhibit planning process is a collaboration among Museum staff, local water conservation districts, expert researchers, local archives, area school districts, Ovitt Family Community Library, Ontario Municipal Utilities Company, and local residents.

On July 22, 2019, the Ontario Museum of History & Art entered into a Professional Services Agreement with Picnic Design to conceptualize and design the exhibit space. Due to the COVID-19 330
pandemic, a separate vendor that had been selected to design and fabricate a modular wall for the exhibit went out of business. This event established a need for Picnic Design to also complete the design for the modular wall. Amendment No. 1 to the Professional Services Agreement was entered into on January 30, 2020, to expand the scope of services to include the design of the modular wall.

This expansion increased the contract amount by $22,250 for a revised agreement not to exceed $72,500.

On June 21, 2021, the City entered into Amendment No. 2 of the Professional Services Agreement to expand the scope of services and extend the term of the agreement. The changes were desired after gathering feedback from Staff, Museum Board of Trustees, Museum stakeholders, and the community. The expanded scope included the development of interactive components in the exhibit. These components are designed to enhance the visitor experience by visualizing abstract concepts such as the water cycle. The interactive components will also encourage visitors to engage with the exhibit content through infographics, a mobile app, and in-gallery activity tables where visitors can discuss and digest the information on display. The additional scope of service increased the amount contracted to Picnic Design by $18,700 resulting in Amendment No. 2, not to exceed $91,200.

Staff received positive feedback on the interactive components as part of the ongoing conversations with stakeholder groups. In the fall of 2021 the Museum Board, along with other stakeholders, requested the addition of an immersive experience. The immersive Virtual Reality (VR) experience will complement the interactive components that were already approved. Together these components will create a rich and engaging experience for visitors to the exhibit. This expansion of scope will require Amendment No. 3.

The VR component of the exhibit provides visitors the opportunity to engage with the subject matter in three-dimensions that will surround and fully engage the visitors’ senses. It will also cater to K-12 school groups and coincide with California education content standards. Under the expanded scope of service, Picnic Design will identify possible locations for the VR experience, create design options for integrating VR into the exhibit space, and facilitate the search and selection of the VR fabricator.

Due to rising construction costs and the addition of the VR component, the Agreement will increase by $13,800, resulting in an overall cost of $105,000. This amount exceeds the $100,000 threshold for agreements, thus requiring City Council approval. The scope of service, contract amount, and agreement term have been revised, as reflected in Amendment No. 3.

City Council’s approval is requested to enter Amendment No. 3 with Picnic Design, requiring an additional $13,800 in design costs. If approved, Staff anticipates the Built on Water exhibit to open to the public in February 2023.
331
Department: Community Life and 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: 32
SUBJECT:

AN AMENDMENT TO THE AMERICORPS STATE & NATIONAL COMPETITIVE GRANT FOR THE 2021-2022 PROGRAM YEAR

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council approve an amendment and budget adjustments for FY 2021-22 to the AmeriCorps State & National Competitive Grant in the amount of $74,001.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT:

The City of Ontario has been awarded $74,001 from AmeriCorps, a federal agency, through funding provided by the American Rescue Plan Act (ARPA). This funding will be added to the existing $325,999 AmeriCorps State & National Grant (AmeriCorps Grant) for the 2021-2022 Ontario Promise Corps program year. Additional budget appropriations for both revenue and expenditures of $74,001 will need to be added to the FY 2021-22 budget, for a total award amount of $400,000, minus administrative fees of $6,516.

A cash match is required by the AmeriCorps Grant. The city’s cash match commitment will not increase with this additional grant funding. The cash match is $235,851 and when added to the grant funding, the grand total is $635,851 for the Ontario Promise Corps program.

BACKGROUND & ANALYSIS:

The AmeriCorps Grant was awarded to the City of Ontario to develop a cradle-to-career collective impact program called Ontario Promise Corps. The program implements services that aim to improve school readiness, improve school attendance, and increase college access and success to the local community. Ontario Promise Corps focuses on AmeriCorps’ national service focus area of education and provides services that contribute to improved educational outcomes for economically disadvantaged children and youth. The program provides these services through partnerships with Hope Through Housing Foundation, Ontario- Montclair Schools Foundation, Ontario City Library, and Ontario Recreation & Community Services Department.
332
The City of Ontario’s Community Life & Culture Agency was initially awarded an AmeriCorps grant in the amount of $325,999 in 2021. The grant was for the implementation of year two of the Ontario Promise Corps program. These funds were accepted by the Ontario City Council at the July 20, 2021, Ontario City Council meeting.

The AmeriCorps grant is administered on the state level by California Volunteers, an office of the State of California. The Community Life & Culture Agency has been awarded the additional $74,001 in ARPA funds, administered by California Volunteers (the granting agency), for the 2021-2022 Ontario Promise Corps program year. After the allocation of administrative fees of $6,516 paid to the granting agency, the City is eligible to invoice $393,484 for reimbursement.

The Community Life & Culture Agency requests that the Ontario City Council approve this amendment and budget adjustment for the 2021-2022 Ontario Promise Corps program year. 333
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: 33
SUBJECT:

FIRST AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT FOR LEGAL

SERVICES

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

CONSENT CALENDAR

RECOMMENDATION:

That the City Council (“City”) approve and authorize the City Manager to execute a First Amendment to a Professional Services Agreement with Kane Ballmer & Berkman in the amount not to exceed $150,000.

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 Fiscal Year 2021-22 Adopted Budget includes, and any subsequent Adopted Budget shall include, appropriations from the General Fund for these services.

The proposed
Amendment No. 1 increases the Agreement amount by $75,000 for a revised total not to exceed amount of $150,000.

BACKGROUND & ANALYSIS:

I
n October of 2019, the City entered into a Professional Services Agreement for special legal services related to ongoing, project specific, redevelopment projects that require expertise in California Community Redevelopment Law and other related specialty practices.

Due to the fact that Economic Development continues to work on high profile redevelopment activities and projects that require special legal counsel, Staff recommends approval of First Amendment to the Professional Services Agreement.
334
Department: Planning
Prepared By: Charles Mercier
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 34
SUBJECT:

A PUBLIC HEARING TO CONSIDER FILE NO. PDCA22-003, A DEVELOPMENT CODE

AMENDMENT PROPOSING CERTAIN CLARIFICATIONS AND REVISIONS TO THE CITY OF ONTARIO DEVELOPMENT CODE, ADDRESSING: [1] TIME EXTENSIONS FOR DISCRETIONARY PROJECTS (SECTION 2.02.025.B.2.C); [2] PUBLIC NOTIFICATION REQUIREMENTS FOR MINOR VARIANCES (SECTION 2.03.010); [3] ADMINISTRATIVE EXCEPTIONS (SECTIONS 4.02.020 AND 4.03.050, AND TABLES

2.02-1 AND 2.03-1); [4] SPECIFIC PLAN MINOR AMENDMENTS (SECTION 4.02.080); [5] HOUSING AND REASONABLE ACCOMMODATIONS (SECTIONS 4.02.035 AND

4.03.055, AND TABLES 2.02-1 AND 2.03-1); [6] ACCESSORY DWELLING UNITS (SECTION 5.03.010); [7] MINIMUM USEABLE REAR YARD AREA FOR SINGLE- FAMILY DWELLINGS (SECTION 5.03.011); [8] BANQUET FACILITIES ON HISTORIC PROPERTIES (SECTION 5.03.067); [9] RETAIL SALES EVENTS (SECTION 5.03.395 AND TABLE 8.01-1); [10] CONVERSION OF GARAGES TO ACCOMMODATE ACCESSORY DWELLING UNITS (SECTION 6.01.010); [11] DEFINITION FOR "GARAGE" (SECTION 9.01.010.G); [12] SINGLE-FAMILY TWO-UNIT PROJECTS AND URBAN LOT SPLITS, RESCINDING URGENCY ORDINANCE NO. 3200 AND ADOPTING STANDARDS (SECTIONS 5.03.403 AND 6.08.060, AND TABLES 2.02-1 AND 2.03-1); AND [13] CERTAIN ALLOWED LAND USES (TABLE 5.02-1)

CITY OF ONTARIO
Agenda Report
June
7, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council introduce and waive further reading of the ordinance approving File No. PDCA22-003, a Development Code Amendment proposing certain clarifications and revisions
to the City of Ontario Development Code, addressing
time extensions for
discretionary projects; public notification requirements for minor variances; administrative exceptions; specific plan minor amendments; housing and reasonable accommodations; accessory dwelling units; minimum useable rear yard area for single-family dwellings; banquet facilities on historic properties; retail sales events; conversion of garages to accommodate accessory dwelling units; the definition for “garage;” and, single-family two-unit projects and urban lot splits, rescinding urgency Ordinance No. 3200 and adopting standards, and certain allowed land uses.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Maintain the Current High Level of Public Safety
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Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

There is no direct fiscal impact to the City associated with this Development Code Amendment.

BACKGROUND & ANALYSIS:

Staff has initiated several revisions to the City's Development Code to address State mandates as a result of changes in State law, as well as revisions to correct or clarify existing provisions, as described below:

1 .

Provisions addressing time extension limits for discretionary projects (Development Code Section 2.02.025.B.2.c) will be revised to clarify that a total of three one-year time extensions may be granted for discretionary actions, such as Development Plans, Conditional Use Permits, and Variances. Time extensions for Tentative Tract and Parcel Maps will continue to be subject to the requirements of the State’s Subdivision Map Act, which allows one or more extensions, not exceed a total of six years;
2 .

Public notification requirements for Minor Variances will be added to clarify that the notification of the owners of any property that abuts a property with a proposed Minor Variance will be required to be notified of the proposed application. Additionally, Minor Variances will be retitled as “Minor Adjustments and Alterations” to reflect the limited nature of the application type (Development Code Sections 2.03.010 and 4.02.020); 3 .

Provisions governing Specific Plan Minor Amendments will be retitled as “Specific Plan Minor Adjustments and Alterations” to reflect the limited scope of the application (Development Code Section 4.02.080). Specific Plan Minor Adjustments and Alterations include: (a) maximum 15 percent change in the number of units within an individual residential area; (b) maximum 15 percent change in land area of a residential planning area boundary; (c) minor changes to landscape materials, wall materials, wall alignment, entry design, and streetscape design; (d) minor changes to design guidelines that are intended to be conceptual in nature and are clearly intended to be flexible in implementation; (e) other modifications of a similar nature to those listed above, which are deemed minor by the Planning Director and are in keeping with the purpose and intent of the affected specific plan; and (f) adjustments in street alignments and dimensions that are deemed appropriate by the City Engineer and are in keeping with the purpose and intent of the specific plan; 4 .

Current provisions governing Administrative Exceptions incorrectly classify the application as requiring a discretionary action and will be rescinded. New provisions are proposed that correctly establish Administrative Exceptions as a ministerial action (Development Code Sections 4.02.020 and 4.03.050, and Tables 2.02-1 and 2.03-1); 5 .

Current provisions governing Housing and Reasonable Accommodations incorrectly classify the application as requiring a discretionary action and will be rescinded. New provisions are proposed that correctly establish Housing and Reasonable Accommodations as a ministerial action (Development Code Sections 4.02.035 and 4.03.055, and Tables 2.02-1 and 2.03-1); 6 .

Provisions governing Accessory Dwelling Units (ADUs) will be modified, adding the requirements of Assembly Bill 345, which allows for the conveyance of an ADU separate from the primary residence if the ADU or primary dwelling was built or developed by a qualified nonprofit corporation, provided certain conditions are met (Development Code Section 336

5.03.010);
7 .

Current provisions stipulating the minimum useable rear yard area for single-family dwellings will be simplified, requiring that a traditional single-family dwelling maintain a useable rear yard area having minimum dimension of 20 FT in any horizontal direction and small lot single- family dwelling maintain a useable rear yard having a minimum dimension of 10 FT in any horizontal direction (Development Code Section 5.03.011). This revision has been proposed to eliminate a conflict with current ADU provisions;
8 .

Current provisions governing banquet facilities established in conjunction with commercial structures on historic properties will be amended to clarify that no banquet facilities are to be allowed in the MU-1 (Downtown Mixed Use) zoning district (Development Code Section

5.03.067). This revision will eliminate an existing conflict with Development Code Table 5.02-1 (Land Use Matrix);
9 .

Current provisions governing Retail Sales Events will be modified to clarify that the provisions also cover “other similar business events.” Additionally, current provisions that limit retail sales events to the holiday sale periods of President’s Day, Memorial Day, Independence Day, Labor Day, and four additional periods per year will be amended, eliminating the four stated holidays, and allowing a maximum of eight, one-week periods per calendar year (Development Code Section 5.03.395 and Table 8.01-1);
10 .

Current provisions stipulating that no garage can be converted to another use unless a replacement garage is constructed on-site will be clarified to provide that a garage conversion that accommodates an ADU is exempt from the replacement garage requirement (Development Code section 6.01.010). This revision will eliminate a conflict with the Development Code’s current ADU provisions, as well as a conflict with State law; 11 .

The current definition for “garage” will be amended to clarify that a garage must be enclosed on all four sides (Development Code Section 9.01.010.G); 12 .

On December 21, 2021, the City Council adopted an Urgency establishing interim standards for single-family two-unit projects and urban lot splits as required by State law (Senate Bill 9).

This Development Code Amendment will rescind the urgency ordinance and adopt permanent standards for inclusion in the Development Code (Development Code Sections

5.03.403 and 6.08.060, and Tables 2.02-1 and 2.03-1); and 13 .

The Land Use Matrix (Development Code Table 5.02-1) will be amended to: (a) allow technical, trade, and vocational schools in the IG (General Industrial) zoning district, subject to Conditional Use Permit approval. This revision would allow for the location of technical, trade and vocational schools that specialize in education and training for industrial-related industries, such as schools for car and truck repair, maintenance, and customization; truck driving schools; forklift driving and operation certification; and other industrial activities; and (b) adult residential care facilities for more than 6 persons, that do not require a State-issued license to operate, would be prohibited. This would include facilities such as halfway group homes for sex-offenders, group homes for unwed mothers, group homes for the disabled without nursing care, and group sober living facilities.

The specific Development Code provisions to be amended are detailed in Exhibit A of this report.

Provisions proposed for deletion are shown in red strikeout text and all additions are shown in yellow highlighted text.

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PLANNING COMMISSION REVIEW AND ACTION:

On April 26, 2022, the Planning Commission
conducted a public hearing to consider the proposed Development Code Amendment. Upon conclusion of the public hearing, the Planning Commission voted unanimously (6-0-1) to approve Resolution No. PC22-019 recommending the City Council approve the proposed Development Code Amendment.

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”). Goals and policies of TOP that are furthered by the proposed Development Code Amendment are addressed in the attached Planning Commission Backup material.

HOUSING ELEMENT COMPLIANCE:

The Project will be consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the project furthers the purposes, principals, goals, and policies of the Housing Element, in that it will provide for urban lot splits and the construction of two-unit single-family development projects, and, under certain circumstances, provides for the conveyance of accessory dwelling units separate from the main dwelling, thereby further promoting alternate forms of home rental and fee-simple homeownership.

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.

ENVIRONMENTAL REVIEW:

The proposed Development Code Amendment is exempt from the requirements of the California Environmental Quality Act (“CEQA”) and the guidelines promulgated thereunder, pursuant to Section 15061(b)(3) of the CEQA Guidelines, in that the activity is covered by the common sense exemption (general rule) that CEQA applies only to projects that 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.
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