Ontario City Council
July 19, 2022

281
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges II. - Community Life & Culture
Section 5. Housing Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Housing Fees
1 Base Affordable Housing Monitoring Fee* Base 747.68$ $ 747.00 7/1/2021 2 Per Unit Affordable Housing Monitoring Fee* Per unit 107.94$ $ 107.00 7/1/2021 3 Loan Payoff Process Fee - without equity share Each 251.11$ $ 251.00 7/1/2021 4 Loan Payoff Process Fee - with equity share Each 400.39$ $ 400.00 7/1/2021 5 Preparation of Full Reconveyance Each 248.13$ $ 248.00 7/1/2021 * Affordable Housing Monitoring Fee does not
apply to bond-funded projects.

Note: Loan Payoff and Reconveyance fees may be
waived if individuals are under financial hardship.

Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Building Plan Check Fees
1 Building Plan Check Fee % of Permit N/A 80.00% 7/1/2021 2 Building Plan Check for track housing or duplicate building % of Permit N/A 40.00% 7/1/2021 3 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Less than $1
million
N/A 50.00% 7/1/2021
4 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $1 and
$5 million
N/A 40.00% 7/1/2021
5 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $5 and
$10 million
N/A 30.00% 7/1/2021
6 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $10 and
$20 million
N/A 20.00% 7/1/2021
7 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Greater than $20
million
N/A 10.00% 7/1/2021

283
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Building Permit Fees
8 Building Permit - Base Fee ($1-$500) Valuation: $1 to $500 N/A $ 23.50 7/1/2021 9 Building Permit - Base Fee ($501-$2000) Valuation: $501 to $2,000 N/A $ 23.50 7/1/2021 10 Building Permit Fee (Each additional $100, or fraction thereof, up to and including $2000)
Each additional $100, or fraction
thereof, up to and including $2,000
N/A $ 3.05 7/1/2021
11 Building Permit - Base Fee ($2001-$25,000) Valuation: $2,001 to $25,000 N/A $ 69.25 7/1/2021 12 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $25,000)
Each additional $1,000, or fraction
thereof, up to and including
$25,000
N/A $ 14.00 7/1/2021
13 Building Permit - Base Fee ($25,001-$50,000) Valuation: $25,001 to $50,000 N/A $ 391.25 7/1/2021 14 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $50,000)
Each additional $1,000, or fraction
thereof, up to and including $50,000
N/A $ 10.10 7/1/2021
15 Building Permit - Base Fee ($50,001-$100,000) Valuation: $50,001 to $100,000 N/A $ 643.75 7/1/2021 16 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $100,000)
Each additional $1,000, or fraction
thereof, up to and including $100,000
N/A $ 7.00 7/1/2021

284
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
17 Building Permit - Base Fee ($100,001-$500,000) Valuation: $100,001 to $500,000 N/A $ 993.75 7/1/2021 18 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $500,000)
Each additional $1,000, or fraction
thereof, up to and including $500,000
N/A $ 5.60 7/1/2021
19 Building Permit - Base Fee ($500,001-$1,000,000) Valuation: $500,001 to $1,000,000 N/A $ 3,233.75 7/1/2021 20 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $1,000,000)
Each additional $1,000, or fraction
thereof, up to and including
$1,000,000
N/A $ 4.75 7/1/2021
21 Building Permit - Base Fee (Greater than $1,000,001) Valuation: $1,000,001 and up N/A $ 5,608.75 7/1/2021 22 Building Permit Fee (Each additional $1,000 or fraction thereof, greater than $1,000,001)
Each additional $1,000, or fraction
thereof
N/A $ 3.65 7/1/2021

285
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Misc. Standard Building Permits
23 Kitchen Remodel (non-structural) Each 258.99$ $ 258.00 7/1/2021 24 Bathroom Remodel Each 129.50$ $ 129.00 7/1/2021 25 Demolition - Entire Structure Valuation N/A Varies 7/1/2021 26 Patio Covers - Solid Valuation N/A Varies 7/1/2021 27 Patio Covers - Lattice Valuation N/A Varies 7/1/2021 28 Patio Covers - Enclosures Valuation N/A Varies 7/1/2021 29 Pole Bases Valuation N/A Varies 7/1/2021
30 Roofing Valuation N/A Varies 7/1/2021
31 Storage Sheds Valuation N/A Varies 7/1/2021 32 Stucco Valuation N/A Varies 7/1/2021
33 Swimming Pools/Spas Valuation N/A Varies 7/1/2021 34 Tenant Improvements - With Ceiling Valuation N/A Varies 7/1/2021 35 Tenant Improvements - Without Ceiling Valuation N/A Varies 7/1/2021 36 Trash Enclosures - Single Valuation N/A Varies 7/1/2021 37 Trash Enclosures - Double Valuation N/A Varies 7/1/2021 38 Walls - Retaining Valuation N/A Varies 7/1/2021 39 Walls - Screen Garden Valuation N/A Varies 7/1/2021 40 Walls - Tilt-Up Screen Walls Valuation N/A Varies 7/1/2021 41 Window Changeout Valuation N/A Varies 7/1/2021

286
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Electrical Permit Fees
42 Electrical Permit Issuance Fee Each 41.63$ $ 41.00 7/1/2021 43 Electrical Permit - Temporary Power Service Pedestal Each 86.33$ $ 86.00 7/1/2021 44 Electrical Permit - Temporary Power Service Distribution system Each 43.17$ $ 43.00 7/1/2021 45 Electrical Permit - outlet/switch/fixture First 20 fixtures 129.50$ $ 129.00 7/1/2021 46 Electrical Permit - Additional Fixtures Each 2.94$ $ 2.90 7/1/2021 47 Electrical Permit - Power Apparatus -up to and including 1 each HP, kW, kVA or kVAR 143.83$ $ 143.00 7/1/2021 48 Electrical Permit - Power Apparatus - over 1 to 10 each HP, kW, kVA or kVAR 158.33$ $ 158.00 7/1/2021 49 Electrical Permit - Power Apparatus - over 10 to 50 each HP, kW, kVA or kVAR 172.66$ $ 172.00 7/1/2021 50 Electrical Permit - Power Apparatus - over 50 to 100 each HP, kW, kVA or kVAR 258.99$ $ 258.00 7/1/2021 51 Electrical Permit - Power Apparatus - over 100 each HP, kW, kVA or kVAR 345.32$ $ 345.00 7/1/2021 52 Electrical Permit - Services -for services of 600 volts or less and not over 200 amperes in rating
Each 172.66$ $ 172.00 7/1/2021 53 Electrical Permit Fee - Services -for services of 600 volts or less and over 200 amperes to 1,000 amperes in rating
Each 258.99$ $ 258.00 7/1/2021 54 Electrical Permit Fee - Services -for services over 600 volts or over 1,000 amperes in rating
Each 431.65$ $ 431.00 7/1/2021 55 Electrical Permit Fee - Miscellaneous Apparatus, Conduits and Conductors
Each 143.83$ $ 143.00 7/1/2021 56 Electrical Permit Fee- Subpanel Each N/A $ 172.00 7/1/2021 57 Electrical Permit Fee - Signs Each N/A $ 86.00 7/1/2021 58 Electrical Permit Fee - Private Swimming Pools Each Pool or Spa N/A $ 129.00 7/1/2021

287
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
59 Electrical Permit Fee - Other Inspections and Fees, inspections outside of normal business hours: minimum charge 3 hrs.

Per Hour 113.00$ $ 113.00 7/1/2021 60 Electrical Permit Fee - Inspections Per Hour 113.00$ $ 113.00 7/1/2021 61 Electrical Permit Fee - Reinspection Fees Per Hour 113.00$ $ 113.00 7/1/2021 62 Electrical Permit Fee - Additional plan review Per Hour 113.00$ $ 113.00 7/1/2021 63 New Construction Trades - Electrical : Residential Per Square Foot 0.10791$ $ 0.1079 7/1/2021 64 New Construction Trades - Electrical : Commercial Per Square Foot 5.22301$ $ 0.1200 7/1/2021 65 New Construction Trades - Electrical: Industrial / warehouse (0-50,000 sf)
Per Square Foot 0.01209$ $ 0.0120 7/1/2021 66 New Construction Trades - Electrical : Industrial / warehouse (>50,000 sf)
Per Square Foot 0.00388$ $ 0.0038 7/1/2021 Mechanical Permit Fees
67 Mechanical Permit Issuance Fee Each 41.75$ 41.00$ 7/1/2021 68 Mechanical Permit Fee (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems -under 3 HP (10.6kW) or to and including 100,000 Btu/h (29.3kW)
Each 172.66$ 172.00$ 7/1/2021 69 Mechanical Permit Fees (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems-over 3 HP (10.6kW) to and including 15 HP (52.7kW), or over 100,000 Btu (29.3kW) to and including 500,000 Btu/h (146.6kW)
Each 215.83$ 215.00$ 7/1/2021

288
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
70 Mechanical Permit Fees (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems -over 15 HP (52.7 kW) to and including 30 HP (105.5 kW), over 500,000 Btu/h (146.6 kW) to and including 1,000,000 Btu/h (293.1 kW)
Each 258.99$ 258.00$ 7/1/2021 71 Mechanical Permit Fees (includes issuance fee)- Furnaces, Boilers, Compressors and Absorption Systems -over 30 HP (105.5 kW) to and including 50 HP (176 kW), or over 1,000,000 Btu/h (293.1 kW) to and including 1,750,000 Btu/h (512.9 kW)
Each 345.32$ 345.00$ 7/1/2021 72 Mechanical Permit Fees (includes issuance fee)- Furnaces, Boilers, Compressors and Absorption Systems -over 50 HP (176 kW) or over 1,7500,000 Btu/h (512.9kW)
Each 517.98$ 517.00$ 7/1/2021 73 Mechanical Permit Fees (includes issuance fee)- Evaporative Coolers Each 172.66$ 172.00$ 7/1/2021 74 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust -each fan connected to single duct
Each 172.66$ 172.00$ 7/1/2021 75 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust-each which is not a portion of any heating or a/c system authorized by a permit
Each 172.66$ 172.00$ 7/1/2021 76 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust -each hood served by mechanical exhaust
Each 345.32$ 345.00$ 7/1/2021

289
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
77 Mechanical Permit Fee - Process Piping Valuation N/A Varies 7/1/2021 78 Mechanical Permit Fee - Wall Heater Each N/A 43.00$ 7/1/2021 79 Mechanical Permit Fees - Miscellaneous (one inspection) Each 86.33$ 86.00$ 7/1/2021 80 Mechanical Permit Fees - Inspection outside of normal business hours Per Hour 113.00$ 113.00$ 7/1/2021 81 Mechanical Permit Fees - Reinspection Fees Per Hour 113.00$ 113.00$ 7/1/2021 82 Mechanical Permit Fees - No Fee Specifically Indicated Per Hour 113.00$ 113.00$ 7/1/2021 83 Mechanical Permit Fees - Additional Plan Review Per Hour 113.00$ 113.00$ 7/1/2021 84 New Construction Trades - Mechanical: Residential Per Square Foot 0.0647$ 0.0647$ 7/1/2021 85 New Construction Trades - Mechanical : Commercial Per Square Foot 0.0647$ 0.0647$ 7/1/2021 Plumbing Permit Fees
86 Permit issuance fee Each 41.75$ 41.00$ 7/1/2021 87 Plumbing Permit Fees - First 15 Fixtures and Vents (new & alterations) First 15 Fixtures/Vents 172.66$ 172.50$ 7/1/2021 88 Plumbing Permit Fees - Each Additional Each 172.66$ 10.78$ 7/1/2021 89 Plumbing Permit Fees - Sewers Each 172.66$ 172.50$ 7/1/2021

290
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
90 Plumbing Permit Fees - Sewage disposal system Each 431.65$ 431.50$ 7/1/2021 91 Plumbing Permit Fees -Industrial waste pretreatment interceptor Each 172.66$ 172.50$ 7/1/2021 92 Plumbing Permit Fees - Water Piping First 20 outlets First 20 Outlets 129.50$ 129.00$ 7/1/2021 93 Plumbing Permit Fees - Water Piping Each Additional Outlet Each Outlet 129.50$ 5.23$ 7/1/2021 94 Plumbing Permit Fees - Water heater including vent Each 172.66$ 12.92$ 7/1/2021 95 Plumbing Permit Fees - Gas Piping Systems First 5 Outlets First 5 Outlets 647.50$ 129.50$ 7/1/2021 96 Plumbing Permit Fees - Gas Piping Systems Each Additional Each Addt'l Outlet 129.50$ 6.77$ 7/1/2021 97 Plumbing Permit Fees - Lawn Sprinklers Each lawn sprinkler system on any one meter
172.66$ 172.50$ 7/1/2021 98 Plumbing Permit Fees - Backflow Protection Devices Each Device 172.66$ 172.50$ 7/1/2021 99 Plumbing Permit Fees - Miscellaneous Each appliance or equipment regulated by the Plumbing Code but
not classed in other appliance
categories, or for which no fee is listed
in this code

86.33$ 86.00$ 7/1/2021

291
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
100 Plumbing Permit Fees - Reinspection Fees Per Hour 113.00$ 113.00$ 7/1/2021 101 Plumbing Permit Fees - No Fee Specifically Indicated Per Hour 113.00$ 113.00$ 7/1/2021 102 Plumbing Permit Fees - Additional Plan Review Per Hour 113.00$ 113.00$ 7/1/2021 103 New Construction Trades - Plumbing : Residential Per SF 0.10791$ 0.1070$ 7/1/2021 Grading Plan Review Fees (up to three submittals of plans) 104 Grading plan check, rough (0-10 acres) Each 1,381.29$ 1,381.00$ 7/1/2021 105 Grading plan check, rough (>10 acres) Each 1,381.29$ 1,381.00$ 7/1/2021 106 Grading plan check, rough (each additional 5 acres) Each 345.32$ 345.00$ 7/1/2021 107 Grading plan check, precise (0-10 acres) Each 1,726.61$ 1,726.50$ 7/1/2021 108 Grading plan check, precise (>10 acres) Each 1,726.61$ 1,726.50$ 7/1/2021 109 Grading plan check, precise (each additional 5 acres) Each 517.98$ 517.50$ 7/1/2021 Grading Permit Fees
110 Grading permit, rough (0-50 acres) Each 345.32$ 345.00$ 7/1/2021 111 Grading permit, rough (each additional 10 acres) Each 86.33$ 86.00$ 7/1/2021

292
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
112 Grading permit, precise (0-50 acres) Each 431.65$ 431.50$ 7/1/2021 113 Grading permit, precise (each additional 10 acres) Each 129.50$ 129.50$ 7/1/2021 114 Soil Disturbance Permit - Dust Control Each N/A 250.00$ 7/1/2021 Miscellaneous Fees
115 Building plan retention fee Per Plan Page N/A 1.50$ 7/1/2021 116 Permits, Calcs and Misc. doc 8.5x11 / per page N/A 0.35$ 7/1/2021 Sewer, Water, Storm Drain Permit & Plan Check Fees
117 Sewer Main Inspection Permit Per Lineal Foot 3.17$ 3.17$ 7/1/2021 118 Water Main Inspection Permit Per Lineal Foot 0.63$ 0.63$ 7/1/2021 119 Storm Drain - main Inspection Permit Per Lineal Foot 0.63$ 0.63$ 7/1/2021 120 Storm Drain - yard Inspection Permit Per Lineal Foot 0.29$ 0.29$ 7/1/2021 121 Sewer, Water, Storm Drain
Plan check fee = % of permit valuation
% of Permit Valuation 2.00% 2.00% 7/1/2021
Resolution No. 2004-065
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

293
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
1 Inspection / Permit - Base Fee Base 164.09$ 164.00$ 7/1/2021 2 Inspection / Permit Fees
$1 - $50,000
Construction cost estimate 5.97% 5.97% 7/1/2021
3 Inspection / Permit Fees
$50,001 - $500,000
Construction cost estimate 5.45% 5.45% 7/1/2021
4 Inspection / Permit Fees >$500,000 Construction cost estimate 4.24% 4.24% 7/1/2021 5 Plan Check - Base Fee (includes
grading, NPDES etc.)
Base 1,371.16$ 1,371.00$ 7/1/2021 6 Plan Check Fees
$1 - $50,000
Construction cost estimate 6.00% 6.00% 7/1/2021
7 Plan Check Fees
$50,001 - $500,000
Construction cost estimate 4.65% 4.65% 7/1/2021
8 Plan Check Fees >$500,000 Construction cost estimate 3.62% 3.62% 7/1/2021 9 Encroachment Permit Fee Each 162.91$ 112.80$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
10 Inspection for minor improvements
(driveways, pole replacement, etc.)
Inspection for single item (2
inspections, before and after)
167.02$ 108.15$ 8/21/2021 11 Traffic Control Permit Each 103.49$ 103.00$ 7/1/2021 12 Overload Permit (single trip) - One
time
Each N/A 19.20$ 8/21/2021
13 Overload Permit (round trip) - Annual Each N/A 108.00$ 8/21/2021 14 Permit Penalty Fee Percent of Permit Value N/A 50.00% 7/1/2021 15 Map Review (Parcel/Tract) - Base Fee Each 7,666.96$ 2,588.40$ 8/21/2021 16 Map Review - Addt'l per parcel Per Parcel 70.48$ 70.00$ 8/21/2021 17 Certificate of Compliance Each 790.69$ 745.20$ 8/21/2021 18 Lot Line Adjustment - Base Fee Each 1,286.16$ 1,159.20$ 8/21/2021 19 Lot Line Adjustment - Addt'l per
parcel
Per parcel 59.43$ 59.00$ 7/1/2021 20 General Vacation Each 3,805.94$ 1,902.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
21 Quit Claim / Summary Vacation Each 2,049.22$ 1,087.20$ 8/21/2021 22 Certificate of Correction Each 823.10$ 480.00$ 8/21/2021 23 Easement review Each 1,691.08$ 1,691.00$ 7/1/2021 24 NPDES business inspection fee - low
priority
One inspection every 5 years 59.43$ 59.00$ 7/1/2021 25 NPDES business inspection fee -
medium priority
One inspection every 2 years 118.85$ 118.00$ 7/1/2021 26 NPDES business inspection fee - high
priority
Inspection each year 237.70$ 237.50$ 7/1/2021 27 NPDES/WQMP Plan Review Each 2,160.65$ 1,112.40$ 8/21/2021 28 NPDES Construction Inspection Fee
(< 10 acres)
Each 505.66$ 505.50$ 7/1/2021 29 NPDES Construction Inspection Fee
(10-25 acres)
Each 905.50$ 905.50$ 7/1/2021 30 NPDES Construction Inspection Fee
(> 25 acres)
Each 2,074.37$ 2,074.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
31 Overtime Pay for Inspection
(Weekends & Holidays)
Per Hour N/A Hourly Rate 7/1/2021
32 Misc. / Special Technical Report
Review Fee
Actual Cost (Plus 25% Admin for
consultant review, if applicable)
N/A Varies 7/1/2021
33 Water Meter - OMUC Fee Based on meter size - OMUC Fee N/A Varies 7/1/2021 34 Storm Water Pollution Abatement Monthly BAU fee based on land use type & site acreage (applied to utility
bill)
N/A Varies 7/1/2021
35 Legal review Per Hour N/A Hourly Rate 7/1/2021

PLANNING APPLICATIONS REVIEWED BY LAND DEVELOPMENT ENGINEERING 36 Development Agreement Deposit N/A Varies 7/1/2021 37 Development Agreement Amendment Deposit N/A Varies 7/1/2021 38 Development Code Amendment Deposit N/A Varies 7/1/2021 39 Environmental Impact Report Deposit N/A Varies 7/1/2021 40 General Plan Amendment Deposit N/A Varies 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
41 Planned Unit Development Deposit N/A Varies 7/1/2021 42 Planned Unit Development
Amendment
Deposit N/A Varies 7/1/2021
43 Specific Plan Deposit N/A Varies 7/1/2021
44 Specific Plan Amendment Deposit N/A Varies 7/1/2021 45 Specific Plan Minor Amendment Deposit N/A Varies 7/1/2021 46 Zone Change - 5 acres or more Deposit N/A Varies 7/1/2021 47 Zone Change - Less than 5 acres Deposit N/A Varies 7/1/2021 Resolution No. 2004-065
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
1 Land Conservation Contract Non-renewal Each 3,817.21$ 1,401.85$ 8/21/2021 2 Land Conservation Contract Cancellation Each 16,679.06$ 6,431.53$ 8/21/2021 3 Appeal-Homeowner Each N/A 130.00$ 7/1/2021 4 Appeal-Other Each N/A 902.00$ 7/1/2021 5 Covenants Conditions and Restrictions Review Each 4,940.68$ 3,067.50$ 8/21/2021 6 Conditional Use Permit-Homeowner Each 4,894.70$ 1,784.26$ 8/21/2021 7 Conditional Use Permit-Nonprofit Each 3,520.01$ 2,691.60$ 8/21/2021 8 Conditional Use Permit-Other Each 5,901.35$ 5,900.00$ 7/1/2021 9 Conditional Use Permit-Modification Each 5,901.35$ 3,693.27$ 8/21/2021 10 Conditional Use Permit-w/ Development Plan Each 4,724.75$ 1,567.20$ 8/21/2021 11 Conditional Use Permit Time Extension Each 1,381.04$ 1,380.00$ 7/1/2021 12 Determination of Use Each 3,316.06$ 3,316.00$ 7/1/2021 13 Development Agreement Deposit N/A $ 10,000.00 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
14 Development Agreement Amendment Deposit N/A $ 7,500.00 7/1/2021 15 Development Code Amendment Deposit N/A $ 2,000.00 7/1/2021 16 Development Plan Review - 5 acres or more Each 24,846.74$ 17,914.80$ 8/21/2021 17 Development Plan Review - less than 5 acres Each 21,465.84$ 11,913.15$ 8/21/2021 18 Development Plan Revision Each 16,735.49$ 4,582.85$ 8/21/2021 19 Development Plan Time Extension Each 1,381.04$ 1,380.00$ 7/1/2021 20 Environmental Assessment/Negative Declaration Each 3,155.59$ 3,155.00$ 7/1/2021 21 Environmental Impact Report Deposit N/A 10,000.00$ 7/1/2021 22 General Plan Amendment - Text Deposit N/A 5,000.00$ 7/1/2021 23 General Plan Amendment - Map Deposit N/A 7,500.00$ 7/1/2021 24 Historic Preservation - COA-Nonresidential Each 4,677.04$ 1,533.75$ 8/21/2021 25 Historic Preservation - COA-Residential Each 4,677.04$ 214.73$ 8/21/2021 26 Historic Preservation - COEH-Nonresidential Each 6,846.51$ 2,045.00$ 8/21/2021 27 Historic Preservation - COEH-Residential Each 6,846.51$ 268.92$ 8/21/2021 28 Historic Preservation - Removal from Eligibility List (No Charge)
Each 6,366.15$ No Charge 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
29 Historic Preservation - Waiver Each 42.96$ 42.50$ 7/1/2021 30 Historic Preservation - Landmark Designation (No Charge) Each 12,025.51$ No Charge 7/1/2021 31 Historic Preservation - Plaque Actual Cost Varies Varies 7/1/2021 32 Inspection - Construction (3 inspections) Each 5,342.05$ 613.50$ 8/21/2021 33 Inspection - Field (includes construction inspections in excess of 3)
Each 1,335.51$ 255.63$ 8/21/2021 34 Residential Mills ActA Each 10,939.36$ 214.73$ 8/21/2021 35 Nonresidential Mills ActA Each 10,939.36$ 669.74$ 8/21/2021 36 Large Family Daycare Each 2,127.81$ 1,116.57$ 8/21/2021 37 Lodging House Permit Each 2,127.81$ 2,127.00$ 7/1/2021 38 Massage Permits Each 2,127.81$ 2,127.00$ 7/1/2021 39 Plan Check - 5 or more acres Each 9,196.43$ 3,070.10$ 8/21/2021 40 Plan Check - less than 5 acres Each 5,685.72$ 1,717.10$ 8/21/2021 41 Planned Unit Development Deposit 20,926.28$ 10,225.00$ 8/21/2021 42 Planned Unit Development Amendment Deposit 13,947.59$ 7,668.75$ 8/21/2021 43 Planning Area Plan Deposit N/A 7,500.00$ 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
44 Planning Director Review Each 1,057.33$ 706.55$ 8/21/2021 45 Preliminary Plan Review Each 4,207.14$ 4,203.00$ 7/1/2021 46 Public Hearing - City Council Each 769.75$ 604.30$ 8/21/2021 47 Public Hearing - Development Advisory Board Each 497.12$ 325.16$ 8/21/2021 48 Public Hearing - Planning Commission Each 1,325.44$ 604.30$ 8/21/2021 49 Public Hearing - Zoning Administrator-Homeowner Each 1,764.14$ 74.64$ 8/21/2021 50 Public Hearing - Zoning Administrator-Other Each 1,764.14$ 584.87$ 8/21/2021 51 Sign Plan Each 519.34$ 246.42$ 8/21/2021 52 Sign Program - administrative approval Each 2,825.58$ 862.99$ 8/21/2021 53 Sign Program - planning commission approval Each 3,059.86$ 2,934.58$ 8/21/2021 54 Specific Plan Deposit N/A 20,000.00$ 7/1/2021 55 Specific Plan Amendment Deposit N/A 7,500.00$ 7/1/2021 56 Specific Plan Minor Amendment Deposit N/A 620.00$ 7/1/2021 57 Temporary Sign Permit Each 124.89$ 58.28$ 8/21/2021 58 Temporary Use Permit - interim uses Each 2,757.54$ 838.45$ 8/21/2021 59 Temporary Use Permit - special event Each 1,064.72$ 492.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
60 Tentative Parcel Map Each 15,986.07$ 6,641.14$ 8/21/2021 61 Tentative Parcel Map Modification Each 11,706.32$ 4,262.80$ 8/21/2021 62 Tentative Tract Map (Base) Flat 18,403.54$ 9,805.78$ 8/21/2021 63 Tentative Tract Map (per lot) Each 65.00$ 65.00$ 7/1/2021 64 Tentative Tract Map Modification Each 12,681.18$ 3,125.78$ 8/21/2021 65 Tentative Tract/Parcel Map Time Extension Each 7,378.97$ 1,227.00$ 8/21/2021 66 Variance - Administrative Exception or Minor Each 3,978.78$ 2,451.96$ 8/21/2021 67 Variance - Homeowner Each 3,978.78$ 309.82$ 8/21/2021 68 Variance - Other Each 5,266.37$ 3,508.20$ 8/21/2021 69 Wireless Permit: Facilities in Public Rights-of-Way Each 3,978.78$ 3,978.00$ 7/1/2021 70 Zone Change - 5 acres or more Each 10,575.56$ 7,666.71$ 8/21/2021 71 Zone Change - Less than 5 acres Each 9,194.99$ 7,497.99$ 8/21/2021 72 Zoning Administrator Review - Homeowner Each 3,978.78$ 200.41$ 8/21/2021 73 Zoning Administrator Review - Other Each 3,978.78$ 1,160.54$ 8/21/2021 74 Zoning/Land Use Verification Letter Each 499.56$ 195.30$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
75 Notice of Exemption Filing Fee County Fee N/A $ 50.00 7/1/2021 76 Notice of Determination Filing Fee County Fee N/A $ 50.00 7/1/2021 77 Filing of a Negative/Mitigated Declaration County Fee N/A $ 2,404.75 7/1/2021 78 Filing of an Environmental Impact Report County Fee N/A $ 3,321.00 7/1/2021 79 Outside consultant or legal expenses Actual Cost Plus 25% Admin. Fee
N/A Varies 7/1/2021
80 Advanced Long Range Planning Percent of all Building Permits & Planning
Applications
914,960.12$ 5.00% 7/1/2021
Resolution No. 2004-065 (Entitlement Processing Fees excl. Mills Act) A Resolution No. 2005-115 (Mills Act Fees)
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062
CPI Adjustment of 2.25% applied to select fees based on year-over-year change from Jan. 2020 to Jan. 2021 as measured by "Riverside-San Bernardino-Ontario Consumer Price Index"

RESOLUTION NO. PC22-029

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

ONTARIO, CALIFORNIA, RECOMMENDING THE CITY COUNCIL
APPROVE FILE NO. PDA22 -003-C, A DEVELOPMENT AGREEMENT

BETWEEN THE CITY OF ONTARIO AND OTC OWNER, LLC, TO

ESTABLISH THE TERMS AND CONDITIONS FOR A DEVELOPMENT
PLAN (FILE NO. PDEV22 -014) TO CONSTRUCT 94 RESIDENTIAL UNITS AND UP TO 11,047 SQUARE FEET OF COMMERCIAL /OFFICE RETAIL USES, ON APPROXIMETLY 1.93 ACRES OF LAND FOR

LOCATED AT THE SOUTHWEST CORNER OF ONTARIO VIA
PIEMONTE AND VIA VILLAGIO WITHIN THE MIXED-USE SUBAREAS 8

OF THE PIEMONTE OVERLAY AT THE ONTARIO CENTER SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF —APN: 0210- 204-39.

WHEREAS, OTC Owner, LLC , ("Applicant") has filed an Application for the approval of a Development Agreement , File No. PDA22-003-C, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and

WHEREAS, the Application applies to approximately 1.93 acres of land, located at the southwest corner of Via Piemonte and Via Villagio. The project site within the proposed mixed-use Subarea 8 of the Piemonte Overlay at the Ontario Center Specific Plan, and is presently vacant; and

WHEREAS, in 2006, the City Council approved the creation of the Piemonte Overlay of the Ontario Center Specific Plan (“Piemonte Overlay”), within the Urban Commercial land use district of the Ontario Center Specific Plan, establishing a master plan for the development of approximately 1.3 million square feet of retail, office, hotel, and entertainment uses, and more than 800 multiple-family dwelling units on the 84-acre overlay site. Several Specific Plan Ame ndments have been approved for the Piemonte Overlay, modifying development intensities, parking requirements, architectural guidelines, and land use designations. The most recent Specific Plan Amendment, File No. PSPA21 -001, was approved by the City Counci l on April 19, 2022, and involved expanding the overlay boundary, adding the Mixed- Use land use designation, and establishing design guidelines for mixed-use projects; and

WHEREAS, the Ontario Center Specific Plan Environmental Impact Report (State Clearinghouse No. 1989041009) was certified on March 19, 1991, (hereinafter referred to as “Certified EIR”), in which development and use of the Project site was discussed in the Amendment to the Ontario Center Specific Plan (File No. 4059-SPA); and

WHEREAS, a Mitigated Negative Declaration was subsequently adopted on May 16, 2017, (hereinafter referred to as “MND”), in which development and use of the Project 305
Planning Commission Resolution
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site was discussed in association with an Amendment to the Ontario Center Specific Plan (File No. PSPA16-003); and

WHEREAS, the Planning Director of the City of Ontario prepared and approved for attachment to the Certified EIR and adopted MND, an Addendum to the Certified EIR and MND (hereinafter collectively referred to as “EIR Addendum”) in accordance with the requirements of the California Environmental Quality Act of 1970, together with State and local guidelines implementing said Act, all as amended to date (collectively referred to as “CEQA”); and

WHEREAS, the EIR Addendum was adopted by the City Council on April 19, 2022, in conjunction with File No. PSPA21- 001, a Specific Plan Amendment to the Piemonte Overlay at the Ontario Center Specific Plan, in which development and use of the Project site was discussed; and

WHEREAS, the environmental impacts of this Project were thoroughly analyzed in the Certified EIR and EIR Addendum, which concluded that implementation of the Project could result in a number of significant effects on the environment and identified mitigation measures that would reduce each of those significant effects to a less -than-significant level; 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

WHEREAS, the Project is lo cated 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 th e Ontario International Airport Land Use Compatibility Plan (hereinafter referred to as “ALUCP”), which applies only to jurisdictions within San 306
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Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and

WHEREAS, A Development Plan Application (File No. PDEV22-014) to construct four mixed-use buildings totaling 63,655 commercial square feet and 694 dwelling units on 13.3 acres of land located at 4000 East Ontario Center Parkw ay and the southeast and southwest corner of Via Piemonte and Via Villagio, within the Mixed- Use land use district of the Piemonte Overlay of the Ontario Center Specific Plan, has been filed in conjunction with the Development Agreement Application; 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 June 28, 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 body 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 the Project were reviewed in conjunction with an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearinghouse No. 1989041009) (“Certified EIR”), certified by the Ontario City Council on March 19, 1991, in conjunction with File No. 4059-SPA, in combination with an Addendum to the Mitigated Negative Declaration, adopted by the Ontario City Council on May 17, 2017, in conjunction with File No. PSPA16 -003. In addition, an EIR Addendum was adopted by the City Council on April 19, 2022, in conjunction with File No. PSPA21- 001, a Specific Plan Amendment to the Piemonte Overlay at the Ontario Center Specific Plan, in which development and use of the Project site was discussed; and

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

307
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(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 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

SECTION 3: Housing E lement Co mpliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as 308
Planning Commission Resolution
File No. PDA22-003-C
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the recommending body 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 . The proposed changes affect two of the four properties listed in the Available Land Inventory (Subareas 8 and 11; Map ID No. 124 and 125). T he residential capacity proposed in this P roject is consistent with the number of dwelling units (198) and density (48 du/ac) specified in the Available Land Inventory.

SECTION 4: Ontario International Airport Land Use Compat ibility 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 Airp ort Influence Area for Ontario International Airport (hereinafter referred to as “ONT”), 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 body for the Project, the Planning Com mission has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, includi ng [ 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 1.93 acres of land generally located southwest corner of Via Piemonte and Via Villagio; and

b. The Development Agreement establishes parameters for the development of a mixed-use project for Lot C, consisting of 94 residential units and up to 11,047 square feet retail uses, within the proposed Mixed-Use Subarea 8 of the Piemonte 309
Planning Commission Resolution
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Overlay of the Ontario Center 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 Piemonte Overlay of the Ontario Center Specific Plan; and

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

d. 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

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

f. This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were reviewed with an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearing House No. 89041009) prepared for the related Amendment to the Piemonte Overlay at the Ontario Center Specific Plan (File No. PSPA21-001). 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: Planning Commission Acti on. 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.

PDA22-003-C) 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 310
311
312
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File No. PDA22-003-C
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ATTACHMENT A:

File No. PDA22-003-C

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
OTC Owner, LLC
Lot C
a Delaware limited liability company
(Development Agreement to follow this page)
313
49114321.13

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

C

ITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196
Exempt from Fees Per Gov. Code §§ 6103 and 27383
_____________________________________________________________ _________________
D

EVELOPMENT AGREEMENT
B
y and Between
C
ity of Ontario, a California municipal corporation,
an
d
O
TC Owner, LLC
Lot C
a Delaware limited liability company
314
49114321.13

DEVELOPMENT AGREEMENT NO. PDA22-033-C
This Development Agreement (hereinafter “Agreement”) is dated as of July _____, 2022, for reference purposes only, and is entered into by and between the City of Ontario, a California municipal corporation (hereinafter “ City”), and OTC Owner, LLC, Lot C, a Delaware limited liability company (together with its successors and assigns, “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 a leasehold interest in the Property pursuant to the Ground Lease; 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 terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, on July ____, 2022, the City Council adopted Ordinance No. _____________ approving this Agreement, and such ordinance became effective on _____________, 2022; and
WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement. On April 19, 2022, pursuant to Resolution No. 2022-034, t he City Council reviewed and adopted an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearing House No. 89041009) dated March 2022 under City’s File No. PSPA21 -001 (the “EIR Addendum ”). The proposed Project is consistent with the EIR Addendum and no further environmental review is required; and WHEREAS, on April 19 , 2022, pursuant to Resolution No. 2022- 035, the City Council approved the Piemonte Overlay at the Ontario Center Specific Plan Amendment - File No.

PSPA21-001 (the “Specific Plan Amendment”); and
WHEREAS, this Agreement and the P roject are consistent with the City ’s Comprehensive General Plan and any specific plan applicable thereto; and 315
49114321.13

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, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended.

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 suffic iency 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 “Approval Date” means ___________, 2022 the hearing date on which the City Council adopted the ordinance approving this Agreement.

1.1.3 “Certificate” shall have the meaning set forth in Section 6.4.

1.1.4 “Certificate of Performance” shall have the meaning set forth in Section 2.5.3.

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

1.1.6 “City Council” means the City Council of the City of Ontario.

1.1.7 “City Manager” means City’s City Manager or his or her designee.

1.1.8 “City Parties” shall have the meaning set forth in Section 9.2.

1.1.9 “City Response Delay” shall have the meaning set forth in Section 3.3.

1.1.10 “Completion” means the date on which all of the following has occurred (a) the Building Department of the City (in its capacity as the municipal authority) has issued (i) a temporary certificate of occupancy (or its equivalent) for the residential dwelling units within the Project and (ii) final sign off or its equivalent of the core and shell for the commercial space within the Project (but not the tenant improvements for such space) and (b) Owner has satisfied the conditions of the Development Approvals to the extent required in connection with the Project (as opposed to conditions required in connection with the development of the other Lots within the Phased Development) other than ongoing conditions that are not required to be satisfied prior to completion of the Project.
316
49114321.13

1.1.11 “Deferred DIF” shall have the meaning set forth in Section 4.2.2.

1.1.12 “Deferred DIF Repayment Date” shall have the meaning set forth in Section

4.2.2. 1.1.13 “Development Approval ” or “ Development Approvals ” means all permits and other entitlements for use subject to approval or issuance by City in connection with development of the Property whether Existing Development Approvals or Subsequent Development Approvals, including, but not limited to, the following:
(a) Amendment to the Piemonte Overlay at Ontario Center Specific Plan -File No.

PSPA21-001;
(b) Development Plan Entitlement – File No. PDEV22-014; (c) EIR Addendum;
(d) Development Agreement - File No. PDA22-003-C; and
(e) Amendment to the Piemonte Overlay Sign Program – File No. PSGP22-002.

1.1.14 “Development Impact Fee ” means a monetary exaction, other than a tax or special assessment , whether characterized as a fee, exaction, charge, assessment or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development projec t. The rates as of the Approval Date for the Development Impact Fees that may apply to the Project are shown on Exhibit “C” attached hereto.

1.1.15 “Effective Date” means the date on which both of the following are true : (a) the ordinance approving this Agreement goes into effect ; and ( b) the Effective Date of the Ground Lease has occurred. Promptly after the Effective Date occurs, the parties shall execute a joint memorandum or side letter confirming the final date of the Effective Date and, thereafter, the Effective Date shall be deemed to be the date agreed upon by the parties in such memorandum or side letter.

1.1.16 “Existing Development Approvals ” means all Development Approvals approved or issued on or prior to the Effective Date. Existing Development Approva ls are listed in the definition of “Development Approvals” above and all other Development Approvals which are a matter of public record on the Effective Date.

1.1.17 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Approval Date, as modified by the Development Approvals.

1.1.18 “Final Non- Appealable Date” means the date Existing Development Approvals are final and non-appealable as set forth in the City Development Code and any applicable Laws and (ii) the applicable statute of limitations has expired under the California Environmental 317
49114321.13

Quality Act (Public Resources Code §21000 et seq.) and implementing Guidelines for CEQA (14 Cal. Code Regs. §15000 et seq.) with respect to the Addendum, in each case without the filing of any third party cha llenge, appeal, or lawsuit or, if filed, such challenge, appeal, or lawsuit has been resolved in a manner satisfactory to Owner . Promptly after the Final Non-Appealable Date occurs, the parties shall execute a joint memorandum or side letter confirming the final date of the Final Non-Appealable Date and, thereafter, the Final Non -Appealable Date shall be deemed to be the date agreed upon by the parties in such memorandum or side letter.

1.1.19 “Force Majeure Event(s)” shall have the meaning set forth in Section 11.11.

1.1.20 “General Plan ” means the City’s Comprehensive General Plan adopted on January 27, 2010, by Resolution No. 2010-006, as may be amended as of the Approval Date.

1.1.21 “Ground Lease ” means that certain Ground Lease by and between City and Owner dated on or about the Approval Date pertaining to the Property, as the same may be amended, modified, or supplemented from time to time.

1.1.22 “Land Use Regu lations” means all ordinances, resolutions, codes, rules, regulations, and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the developm ent of the Property . “Land Use Regulations” does not include any City ordinance, resolution, code, rule, regulati on or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; or (e) the exercise of the power of eminent domain.

1.1.23 “Lender Proposed Amendment” shall have the meaning set forth in Section 10.

1.1.24 “Lot” or “Lots ” shall mean Lot A, B, C, or D, as the context ma y require, as shown on Exhibit “B” to this Agreement.

1.1.25 “Mortgagee” means any lender under any mortgage, deed of trust , or other security device securing financing with respect to the Owner’s then-current interest in the Property, and their successors and assigns.

1.1.26 “Non-Deferrable Fees” shall have the meaning set forth in Section 4.2.2. 318
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1.1.27 “Owner” means the person or entity defined as such in the introductory paragraph of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.28 “Owner Parties” shall have the meaning set forth in Section 9.3.2.

1.1.29 “Phased Development ” means the phased development and construction contemplated by Owner on the Property and each of the other “ Owners” under the Related Development Agreements (as defined below) on Lots A, B, and D. The projects to be developed and constructed in the Phased Development include the Project and projects on Lot s A, B, and D as follows:

Lot A - Development Plan Entitlement – File No. PDEV22-014; Lot B - Development Plan Entitlement – File No. PDEV22-014; and Lot D - Development Plan Entitlement – File No. PDEV22-014.

Lots A, B, and D are each also currently subject to a ground lease between the City and ground lease tenant of the applicable Lot which is being entered into c oncurrently with the Ground Lease in form and content similar to the Ground Lease. The City is also concurrently entering into a statutory development agreement with each of the ground lease tenants for Lots A, B, and D in form and content similar to this Agreement (the “ Related Development Agreements”). It is currently contemplated that the Project will be developed and constructed as part of the Phased Development of the Property and Lots A, B , and D currently comprised of the following development as shown on Table 1 below:

Table 1:

Maximum Development Density (Units) and Intensity
(Based on Piemonte Overlay at the Ontario Center Specific Plan) DA File No’s. Approx.

Acres
Lot Subarea
Area
Dwelling
Units
Commercial
(Square Feet)
PDA22-003-A 4.83 A 16 384 25,256
PDA22-003-B 1.69 B 17 112 20,802
PDA22-003-C 1.93 C 8 94 11,047
PDA22-003-D 2.04 D 11 104 14,095
Total 10.49 694 71,200
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1.1.30 “Project” means the proposed development and construction on the Property (Lot C) of up to 11,047 square feet of commercial/office/retail uses and 94 multi-family residential dwelling units , all as consistent with File No. PDEV22 -014 (as the same may be modifi ed by Owner from time to time in accordance with the Existing Development Approvals). The commercial/office/retail uses shall be those permitted or conditionally permitted within Section

3.2 Allowed Uses of The Piemonte at Ontario Center Specific Plan.

1.1.1 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement. The Property is referred to as Lot C on Exhibit B. The Property constitutes one parcel of the Phased Development. Lots A , B, and D comprise the remainin g parcels of the planned Phased Development.

1.1.2 “Protected Lot” shall have the meaning set forth in Section 8.2.3.

1.1.3 “Related Development Agreement ” shall have the meaning set forth in the definition of “Phased Development” above.

1.1.4 “Reservations of Authority” mea ns the rights and authority excepted from the assurances and rights provided to Own er under this Agreement and reserved to City under Section 3.6 of this Agreement.

1.1.5 “Security Instrument” shall have the meaning set forth in Section 10.

1.1.6 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “ Piemonte Ov erlay at the Ontario Center Specific Plan ,” as amended by the Specific Plan Amendment.

1.1.7 “Subsequent Development Approvals ” means all Development A pprovals obtained subsequent to the Approval Date in connection with development of the Property.

1.1.8 “Subsequent L and Use Regulations ” means any Land Use Regulations adopted and effective after the Approval Date.

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 sh owing location of Property and the other Lots within the Phased Development
Exhibit “C” Development Impact Fees as of the Approval Date

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 if and to the extent commenced shall be carried out in accordance with the terms of this Agreement. 320
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2.2 Ownership of Property. Owner represents and covenants that it is the owner of a leasehold interest in the Property or a portion thereof.

2.3 Term. 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:
(a) Owner provides at least 180 days written notice to City prior to expiration of the initial term;
(b) Owner is not then in uncured default of this Agreement (after notice and the expiration of any applicable cure periods); and
(c) if less than three (3) of the Lots in the Phased Development have achieved Completion, s uch extension must be approved by the City Manager in his or her reasonable discretion.

For the avoidance of doubt, any time limits that may otherwise apply to the Development Approvals absent this Development Agreement (including without limitation, any of the time limits imposed on approvals pursuant to Section 2.02.025A of the Ontario Development Code or any other the Land Use Regulations) shall not govern the De velopment Approvals or this Agreement and the term set forth in this Section 2.3 shall control.

2.4 Assignment.

2.4.1 Right to Assign. Owner shall have the right to sell, transfer , or assign its interest in the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Sect ion 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, how ever, that any such sale, transfer , or assignment shall include the assignment and a ssumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) Any such sale, transfer, or as signment is done in compliance with the Ground Lease if such Ground Lease is then in effect;
(b) 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 substantially all of Owner’s leasehold or fee interest (as applicable) in the Property; (c) Prior to any such sale, transfer , or assignment, Owner shall notify City ’s City 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 321
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respect to the portion of the Property so sold, tra nsferred, or assigned; and (2) the payment of the applicable processing charge to cover the City ’s review and consideration of such sale, transfe r, or assignment; and
(d) 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 ex ecute the agreement required by Paragraph (c ) 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 agr eement 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 S ubsection 2.4.1. Notwithstanding any contrary provision of this Agreement, the Owner of the Property shall not have any liability hereunder with respect to any other Lot and a default by the Owner of one Lot shall not impact the rights and obligations of the Owner of any other Lot.

2.4.2 Release of Transferring Owner . Notwithstanding any sale, transfer , or assignment, a t ransferring 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 all of the following conditions:
(a) such transferring owner no longer has a legal or equitable interest in the portion of the Property sold, transferred, or assigned;
(b) such transferring ow ner is not then in default under this Agreement (after notice and the expiration of any applicable cure periods) , in which case such transferring owner shall remain liable for such default but not any future defaults by the assi gnee after the date of the transfer; and
(c) such transferring owner has provided City with the notice and executed agreement required under Paragraph (c) of Subsection 2.4.1 above.

2.4.3 Subsequent Assignment . Any subsequent sale, transfer , or assignment after an initial sale, tra nsfer, or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.4 For the avoidance of doubt, this Section 2.4 does not apply to assignments or transfers of this Agreeme nt to Mortgagees or their i nitial transferees after a foreclosure, deed in lieu, or similar action permitted un der the mortgage, deed of trust, or other security device securing financing with respect to the Owner’s interest in the Property.

2.5 Amendment or Cancellation of Agreement; Operating Memoranda.

2.5.1 Amendment or Cancellation . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 322
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65868. Any amendment of this Agreement, which amendment has been request ed by Owner , shall be considered by the City only upon the payment of the applicable processing charge. The City hereby agrees to grant priority processing status to any request(s) to amend this Agreement made by Owner. This provision shall not limit any remedy of City or Owner as provided by this Agreement. Either party or successor i n interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutua l consent of the parties or their successors in interest except as provided otherwise in this Agreement or in G overnment 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 cance l 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 a dopting and entering into this 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 t he giving the public notice of intention to consider the amendment or cancellation.

2.5.2 Operating Memoranda.

The provisions of this Agreement require a close degree of cooperation between the City and Owner and development of the Project hereunder may demonstrate that refinements and clarifications are appropriate with respect to the details of performance of the City and Owner. If and when, from time to time, during th e term of this Agreement, the City and Owner agree that such clarifications are nec essary or appropriate, the City and Owner shall effectuate such clarifications through operating memoranda approved by the City and Owner, which, after execution, shall be a ttached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by the City and Owner. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Manager shall be authorized to make the determination on beh alf of the City whether a requested clarification may be effectuated pursuant to this Section 2.5.2 or whether the requested clarification is of such a character to constit ute an amendment hereof. The City Manager shall be authorized to execute any operat ing memoranda hereunder on behalf of the City without further Planning Commission or City Council action.

2.5.3 Certificate of Performance.

Upon Completion of the Project or upon the earlier revocation or termination of this Agreement , the City shall provide Owner, upon Owner’s request, with a statement (“Certificate of Performance ”) evidencing such completion, revocation, or termination of this Agreement, and the release of Owner from further obligations hereunder with respect to the Property except wit h respect to the obligations which expressly survive such termination pursuant to Sections 3.9 (Rent Control), 4.2.2 (Development Impact Fees), 9 (Third Party Litigation) and 11.22 (Attorneys’ Fees) . The Certificate of Performance shall be signed by the appropriate agents of Owner and the City and shall be recorded with the County Recorder . Such Certificate of Performance is not a notice of compl etion as referred to in Cal ifornia Civil Code Section 8182.
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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 Agreem ent as set forth in Section 2.3; or
(b) Completion of the Project to be developed and constructed on the Property in accordance with the terms of this Agreement.

Termination of this Agreement shall not constitute termination of any other land use entitlements approve d for the Property. Upon t he 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 performa nce of the provisions of this Agreement which has occurred prior to such termination or with respect to any right and/or 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 to the extent payment has been received.

2.7 Notices.
(a) As used in this Agreeme nt, “ notice” includes, but i s 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 a nd shall be considered give n either: (i) when delivered in person, including, without limitation, by courier, t o 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 env elope as either registered or certified mail with return receipt requested, and postage and postal charges prep aid, and addressed to the recipient named below.

All notices shall be addressed as follows:
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If to City:

Scott Ochoa, City Manager
City of Ontario
303 East “B” Street
Ontario, CA 91764
If to Owner:

OTC Lot C Owner, LLC
c/o Adept Urban
388 Cordova Street, #280
Pasadena, CA 91101
Attention: Patrick Chraghchian; Robert
Montano
Email:[email protected];
[email protected]

with a copy to:

Ruben Duran, City Attorney
Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761

with a copy to:

Munger, Tolles & Olson LLP
350 S. Grand Avenue, 50th Floor
Los Angeles, CA 90071
Attention: Misty M. Sanford, Esq.

Email: [email protected]

(c) Either party may, by notice given a t any time, require subsequent notices to be given to another person or entity, whet her a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of cha nge shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Development of the Project; Rights to Develop.

3.1.1 Development of the Project . In consideration of the premises, purpose s, and intentions set forth in this Agreement , and in consideration of the as surances for development of the Project pursuant to this Agreement , Owner agrees to develop the Project in accordance with: (i) the terms and conditions of this Agreement; (ii) the terms and conditions established in the Development Approvals; and (iii ) the Existing Land Use Regulations . Owner further agrees that the use, density and int ensity, maximum height and size of structures and provisions for the Property reservation and dedication of land for public purposes related to t he Property shall be limite d to those uses permitted by the Existing Land Use Regulations . The Project shall be developed in accordance with the Development Approvals . The Project shall be constructed in compliance with all applicable building codes and st andards, as such may be modified from time to time.

3.1.2 Rights to Develop. Subject to the terms of this Agre ement including the Reservations of Authority, Owner shall have a vested right to develop the Project in accordance with the Existing Land Use Re gulations, subject to the t erms and conditions of this Agreement and the conditions established in the Developm ent Approvals. The Project shall remain subject to all Development Approvals required to complete the Project. Except as otherwise provided in this Agreement, the permitte d uses of the Property, the density and intensity of use, the 325
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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 Existing Land Use Regulations.

3.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Proper ty, the density and intensi ty of use of the Property, the maximum height and size of proposed buildings, and th e design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection wit h any Subsequent Development Approval, City shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretio n 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 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or the rate at which t he Phased Development will be developed. Such decisions depend upon numerous factor s which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion, and other similar fac tors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to preva il over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop (without the obligation) the Property in such order and at such rate an d at such times as Owner deems appropriate within the exercise of its sole and subjective business judgment during the term of this Agreement. Notwithstanding the foregoing, s ubject to (a) Force Majeure Events , (b) up to three one -year extensions of time (provided, however, that (i ) only the first one -year extension may be requested by Owner unilaterally and there after such extensions must be approved by the City Manager and (ii) such extensions shall not apply to the first milestone (i.e., submission of t he building application) for the first of the Lot s of the Phased Development to be developed) and (c) any exten sions of entitlements or permits granted by any governmental authority on a statewide, citywide or countywide basis , Owner shall achieve the foll owing milestones in accordance with the following schedule:

Event Date

1. Submission by Owner of building permi t
application to the City for the Project

On or before one hundred eighty
(180) days following the date a final
Certificate of Occupancy is issu ed
with respect to the buil ding(s) of the
immediately prior phase.

2. Commencement of Construction of the
Project

On or before two (2) years following
the date a final Certificate of
Occupancy is issued with respect to
the building(s) of the immediately
prior phase ; provided, howev er
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Commencement of Construction shall
occur within 6 months of the
Commencement of C onstruction of
Lot D.

In order to achieve this milestone,
City agrees to complete its review of
(a) Owner’s initial plan check
submission within twenty-one (21)
days after receipt of such initial
submission by City (provided,
however, prior to such submis sion
Owner and the City shall meet to
review the proposed application), and
(b) any additional submissions
required to obtain the required
permits for the project within
fourteen (14) days following receipt
of such additional submissi ons by
City. There shall be a day -for-day
extension of this Commencement of
Construction milestone if the City
fails to timely respond to such
submissions within the time periods
set forth above (each, a “City
Response Delay”).

3.4 Requirement for Public Infrastructure Im provements. Owner shall comply with any conditions of the Development Approvals with respect to providing public infrastructure improvements or facilities, if any , to the extent required in connection with the Project (as opposed to the other Lots within the Phased Development).

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will requi re Subsequent Development A pprovals 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 Subse quent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. Unless otherwise required by law, as determined in City’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, 327
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(b) Increase the density or intensity of use of the Proper ty as a whole ; (other than in de minimis amounts); or,
(c) Increase the maximum height and size of permitted buildings (other than in de minimis amounts); or,
(d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions . N otwithstanding 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 developm ent agreement prevent the City from denying or conditionally approving any subseque nt 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 its actual costs of processing applications for, or monitoring compliance with , any development approvals granted for the performance of any conditions imposed on the Project, unless otherwise waived by the City in writing;

(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 a pplicable to public and private improvements, including all uniform codes adopted by the City and any local amendments 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 or Existing Land Use Regulations but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their he alth or safety ; and are generally applicable on a citywide basis (except in the event of natural disasters as found by the City Council such as floods, earthquakes, pandemics and similar acts of God);

(e) Reserved;

(f) Regulations to which the Owner consents in writing. 328
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3.6.2 Subsequent Development Approvals . This Agreement shall not prevent City, in acting on Subsequent Development Approva ls, from applying Subsequent Land Use Regulations that do not conflict with the Development Approvals and the E xisting Land Use Regulations, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Approvals and the Existing Land Use Regulations.

3.6.3 Modification or Suspension by State or Federal Law . In the event that State or Federal laws or regulati ons, enacted after the Approval Date , prevent or preclude compliance with one or mor e of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such S tate or Federal laws or reg ulations, 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 enfo rce or comply with as determined by Owner . 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 declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section

3.6.3 shall impose on City any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.6.4 Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations, and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contract.

3.7 Public Works; Utilities . If Owner is required by any Development Approval to construct any public works facilities which will be dedicat ed to City or any other public agency upon completion, and if required by applicable laws to do so, Owner shall perform such work to the construction standards that would be applicable 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 a pproval, 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.

3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Prope rty separately from or join tly with City and this Agreement does not limit the authority of such other public a gencies. City agrees to cooperate fully, at no material out-of-pocket cost to City, with Owner in obtaining any required permits or compliance w ith the 329
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regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations, or policies of the City.

3.9 Rent Control. Notwithstanding anything to the contrary in this Agreement, City agrees that, to the extent p ermitted by applicable law, City shall not apply any rent control or other renter protections or other moratori a or interim control ordinance against the Property or the Project. The foregoing covenant shall survive the expiration of this Agreement indefi nitely and shall be in effect unless this Agreement is terminated for any reason other t han a termination due to the Completion of the Project.

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 Approvals and the Existing Land Use Regulations and further acknowledge and agree that this Agreement confers substantial private benefits on Owner that should be balanced by commensurate public benefits. Ac cordingly, 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.
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4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by Owner . Th e amounts for Development Impact Fees established or imposed by the City to be paid by Owner shall be the amounts that are in effect as of the Ap proval Date, which are show n on Exhibit “C” attached hereto, and Development Impact Fees established or imposed by other public agencies to be paid by Owner shall be the amounts that are in effect at the time such fees are due and payable during the develo pment process. N othing 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 Im pact Fees may be collected by City .

Notwithstanding the foregoing, the amounts imposed by the City to be paid by Owner for the following Development Impact Fees may be those in effect at the time such fees are due and payable (s ubject to the right to defe rment set forth in Section 4.2.2 below) , so long as such amounts do not increase by more than five percent (5%) over the amount of such rates in effect as of the Approval Date: 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; buildi ng 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 Reorganization Act of 2000, Division 3 (com mencing 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 suc h codes may be amended or superseded, including by amendment or replacement.

4.2.2 Time of Payment.
(a) Owner shall have the right to elect (but is not obligated ) to amortize the payment of u p to fifty percent (50%) of the total amount of Development Impact Fees due and payable for the Project ( the amount so elected, the “Deferred DIFs”) over a period of thirty (30) years commencing from the Deferred DIF Repayment Date at an annual 3 percent (3%) simple interest rate. As used herein, “ Deferred DIF Repayment Date” means the date of issuance of a temporary or other certificate of occupan cy for the residential comp onent of the Project. The parties understand and agree that the Development Impact F ees established or imposed by other public agencies that are not controlled by City even if such Development Impact Fees may be collected by City (including without limitati on, if applicable, the IEUA Sewer Connection Fee, Ontario -Montclair School District (K-12) Fees , Cucamonga School District and Chaffey Joint Union High School Fees ) (collectively, the “ Non-Deferrable Fees”) must be paid when and as required in their standard course and schedule and may not be deferred hereunder; provided, however, the am ount of such Non- Deferrable Fees may be included in the calculation of the total amount of Development Impact Fees due and payable for the Projec t for 331
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purposes of calculati ng the fifty percent (50%) amount that Owner may elect to include as Deferred DIFs.
(b) Owner agrees t hat, commencing upon the Deferred DIF Repayment Date, Owner shall pay to the City, on the 1 st day of the next following month and each and every successi ve month for three hundred sixty (360) consecutive months, an amount equal to the am ortized principal and interest of the actual amount of the Deferred DIFs amortized over thirty (30) years at a n annual 3 percent (3%) simple interest rate. By way of example only, if the Deferred DIFs equal $4,5000,000, the monthly payment to be made to the City would be $18,972. The entire unpaid principal balance of the amortized Deferred DIFs and any accrued but unpaid interest shall be immediately due and payable to the City upon any of the following events: (1 ) the termination o f this Agreement other than a termination due to the Completion of the Project ; ( 2) any uncured default by Owner with regard to repayment of the amortized Deferred DIFs to the City (if such amounts have not been paid to the City within five (5) business days of Owner’s receipt of written notice from the City); or (3) any sale, transfer or assignment of all or substantially all of the Owner’s leasehold or fee interest (as applicable) in the Prope rty that is not approved by the City in advance (which such approval shall not be unreasonably withheld, conditioned or delayed) . Any monthly payment or portion thereof not paid to the City as and when due under the terms of this Agreement shall accrue interest from the date on which such payment was due at the rate of ten percent (10%), and if not paid within the five (5) business day cure period described above, City may file a lien against the Property for such delinquent amounts including any accrued and unpaid interest . All payments under this Subsection will be applied first to pe nalties and late fees, then to interest, then to reduce the principal amount owed. The Deferred DIFs and any accrued but unpaid interest may be pre -paid to the City at any time without any pre-payment penalty. (c) The Deferred DIF payment obligation shal l be a covenant running with the land and shall survive the expiration or early termination of this Agreement indefinitely until the Deferred DIFs are paid in full in accordance with this Agreement. (d) Any Development Impact Fees that are not a Deferred DIF shall be paid when and as required in their standard course and schedule.

4.3 Reserved.

4.4 Reserved.

4.5 Schools Obligations . Owner shall satisfy its school obl igations with the applicable school district by paying school impact fees. Written evidence of approval by the applicable school district that Owner has met its school obligations may be required by the City as the condition to the issuance by the City of any building permits for the Project.

4.6 Reserved.

4.7 Reserved.

4.8 Reserved.
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4.9 Maintenance of Open Space. Owner shall provide for ongoing maintenance of all park, common areas , and open space areas within the Proj ect as may be set forth in t he Development Approvals.

4.10 Intentionally Omitted.

4.11 Compliance with Publi c Benefits Requirements . In the event Owner fails or refuses to comply with any condition referenced in Section 4.1 through 4.9, 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 permitted under this Agreement , 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. [RESERVED]

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initia tion 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 in accordance with Sect ion 65865.1 of the Californ ia Government Code . Upon completion of the City’s review, 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. Issuanc e of a notice of continuing compliance may be issued by the City Manager or his /her designee. Owner shall be responsible for paying any processing charge in connection with each such annual review, if any, provided that such char ge shall be generally consi stent with the cost charged for annual reviews for other development agreements to which the City is a party.

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 v ote of at least four (4) members of the Planning Commission; or

(3) Affirmative vote of at least three (3) members of the City Council.

6.1.3 Notice of Special Review . The City Manager shall begin the special review proceeding by giving notice that t he City intends to undertake a special 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. The cost of any such special review shall be borne by the City, unless such a special review demonstrates that Owner is not 333
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acting in good- faith compliance with the provisions of thi s Agreement, in which case Owner shall reimburse the City for all costs incurred by the City in connection with such special review.

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 th is 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 perio d 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 fai th with the terms and condi tions of this 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 conditions of this Agreement during the period under review, the Planning Commission shall specify in writing the respects in which Owner has failed to so comply. The City shall provide Owner with written notice of such noncompli ance, together with a writt en specification of the reasons therefor. Such written notice shall also specify a reasonable time for Owner to cure such non- compliance, which time shall be not less than thirty (30) days after Owner’s receipt of such notice.

(c) The Owner may appeal a determination pursuant to paragraph (b) in accordance with the City’s rule for consideration of appeals in zoning matters generally.

6.2 Proceedings Upon Termination. If, upon a finding under Section 6.1.6(b), the City determines to proceed with 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 this Agreement; and

(c) Other information that the City considers necessary to inform the O wner of the nature of the proceeding.

6.3 Hearing on Termination. At the time and place set for the hearing on termination, the Owner shall be g iven an opportunity to be he ard. 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 the administra tive record, that the Owner has not complied in good faith with the 334
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terms and condit ions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary 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 Rev iew and based upon the infor mation 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 re cord notice of the finding of compliance, shall state whether the Certificate is iss ued 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 transfe rees 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 fro m or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General; Waiver of Monetary Damages . It is acknowledged by the parties that, subject to and without limiting the Development Impact Fe es in Section 4.2, indemnities in Sections 9.2, 9.3 and 9.4 below and the award of attorneys’ fees under Section

11.22 below , neither party would have entered into this Agreement if it were to be liable in monetary damages under this Agreement , or with res pect to this Agreement or t he application thereof. The parties agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages that would adequately compensate Owner for its investment of time and financial resources in planning to a rrive at the kind, location, intensity of use, and improvements for the Project, no r to calculate the consideration the City would require to enter into this Agreement to justify the exposure. Therefore , the parties agree that each of the parties may pursue any remedy at law or equity available for any breach of any provision of this Agreement, except that neither party shall be liable in monetary damages to the other party, or to any successor in interest of such other party, or to any other person, and each party covenants not to sue for monetary damages or claim any monetary damages:

8.1.1 For any breach of this Agreement or for any cause of action which arises out of this Agreement (other than in connection with Development Impact Fees in Section 4.2, indemnities in Sections 9.2, 9.3 and 9.4 below and the award of attorneys’ fees under Section

11.22 below); or

8.1.2 For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
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8.1.3 Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

8.1.4 The parties understand and agree, however, that nothing in this Section 8.1 shall prohibit, rest rict or otherwise affect the rights of a party to seek monetary damages as a result of any default by the other party under any other agreement entered into by the parties with respect to the Property and the Project, including w ithout limitation the Groun d Lease, if and to the extent such other agreements allow for monetary damages. No part of this Agreement shall be deemed to abrogate or limit any immunities or defenses either party may otherwise have with respect to claims for monetary damages.

8.2 Default by Owner. In the event that Owner does not perform its obligations under the Agreement in a timely manner, subject to the limitations in Section 8.1, the City shall have all rights and remedies provided herein which shall include ( a) the right to compe l specific performance of the obligations of Owner under this Agreement or ( b) term ination of this Agreement, provided that the City has first complied with the procedures set forth in this Section

8.2 and in Section 8.5 below. If City elects to proceed u nder clause ( b) with termination of this Agreement, the following shall apply:

8.2.1 If after the applicable cure period has elapsed, the City Manager finds and determines that Owner remains in default, the City Manager shall mak e a report to the Planning Commission and then set a public hearing before the Planning Commission in accordance with the notice and hearing requirements of Government Code Sections 65867 and 65868. If, after public hearing, the Planning Commission finds and determines, on the basi s of substantial evidence, that Owner has not cured the applicable default pursuant to this Section, and that the City should terminate this Agreement, Owner shall be entitled to appeal that finding and determination to the City Council in accordance with t he procedure in Section 6.1.6(c) above . In the event of a finding and determination that all defaults are cured, there shall be no appeal by any person or entity, and

8.2.2 City may terminate this Agreement after such final determination of the City Counc il or, where no appeal is taken, after the expiration of the appeal period in accordance with the procedure described in Section 6.1.6(c) above , relating to the defaulting party's rights and obligations.

8.2.3 City’s Limited Cross Termination Right . If City terminates this Agreement in accordance with the procedures set forth herein as a result of a failure of Owner to achieve any of the milestones required pursuant to Section 3.3 above, City shall have the right to simultaneously terminate the Related Development Agreement(s) affecting the Lot(s) within the Phased Development for wh ich none of the milestones under Section 3.3 of the applicable Related Development Agreement(s) have been achieved and for which a standard const ruction loan from an unrela ted third party (“ Loan”) has not been executed for the development of such Lot(s). For example, if the owner of any Lot in the Phased Development (including the Property) has executed a Loan for the development of such Lot or any of the milestones under Section 3.3 of the applicable Related Development Agreement have been achieved with r espect to such Lot (a “Protected Lot ”), then the termination of this Agreement or the Related 336
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Development Agreement for any other Lot shall not a ffect the Related Development Agreement of such Protected Lot and City shall not have any right hereunder to te rminate such Related Development Agreement under this Section 8.2.3.

8.3 Default by City. In the event the City defaults under the provisions of this Agreement, subject to the limitations set forth in Section 8.1 above, Owner shall have all rights and remedies provided herein or by applicable law, which shall include compelling the specific performance of the City's obligations under this Agreement, provided that Owner has first complied with the procedures in Section 8.5 below.

8.4 Release. Subject to a nd without li miting the indemnity in Section 9.3 below, except for nondamage remedies, including the remedy of specific performance , each party, for itself, its successors and assignees, hereby releases the other party, 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, a ny claim or liability, based or asserted, pursuant to Article I, Section 19 of the C alifornia Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other lia bility or damage, whatsoeve r, upon the City because it entered into this Agreement or because of the terms of this Agreement.

8.5 Notice and Cure . F ailure or delay by either party to perform any term or provision of this Agreement, which is not cured within thirty (30) days after r eceipt of written notice from the other party, identifying with specificity those obligations of the defaulting party which have not been performed , constitutes a default under this Agreement; provided, however, if such failure or delay cannot reasonably b e cured within such thirty (30) day period, no default shall be deemed to have occur red hereunder if the party committing such failure or delay commences cure within such thirty (30) day period and thereafter diligently prosecute s such cure to completion; provided, however the party who so fails or delays must immediately commence to cure , correct or remedy such failure or delay, and shall complete such cure, correction or remedy with due diligence but (a) with respect to the City only in no event later tha n sixty (60) days after receipt of written notice from the Owner and (b) with respec t to Owner only in no event later than one hundred eighty (180) days after receipt of written notice from City . The injured party shall give writ ten notice of default to the party in default specifying the default complained of by the injured party. Failur e or delay in giving such notice shall not constitute a waiver of any default.

8.6 Ground Lease and Other Agreements Not Affected. This Section 8 shall not be deemed to imp licate, modify, or affect in any way any provisions in the Ground Lease or any other agreement entered into by the parties with respect to the Property and the Project.

9. THIRD PARTY LITIGATION.

9.1 General Plan Litigation . City has determined that this A greement is consistent with its General Plan, as such General Plan exists as of the Approval Date , and that the General Plan meets all requirements of law. 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 Project as the result of a judicial determination that on the Approval Date , or at any time 337
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thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third Party Litigation Concerning Agreement. Subject to and without limiting the indemnity in Section 9.3.2 below, Owner shall defend (with counsel chosen by Owner and approved by City, which such approval shall not be unre asonably withheld, conditioned or delayed), at its expense, including attorneys’ fees, indemnify, and hold harm less City and its officers and employees (collectively, the “ City Parties ”) from any claim, action or proceeding against the City Parties to atta ck, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. City shall promptly notify Owner of any such claim, action or proceeding, and City shall cooperate in the defense. If City fails to promptly notify Owner of any such claim, action or proceeding, or if any of the City Parties fail to coopera te in the defense as finally determined by a court or arbitrator of competent jurisdiction, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless the City Parties.

Nothing in this Section 9 or any other indemnification provision included as a condition to any of the Development Approvals shall be construed to mean that Owner or City shall indemnify, hold any of the City Parties or Owner Parties, a s applicable, harmless and/or defend any of the City Parties or Owner Parties, as applicable, from any claims arising from (a) as to Sections 9.3.1 and 9.4 only, any of the City Parties’ or Owner Parties’, as applicable, violation of law, or (b) as to all such indemnities other than the indemnity set forth in Section 9.3.2, (i) any of the City Parties’ or Owner Parties’, as applicable, breach of contractual obligations to third parties or (ii) the gross negligence or willful misc onduct of any of the City P arties or Owner Parties, as applicable.

9.3 Indemnity.

9.3.1 Owner. In addition to the provisions of 9.2 above, subject to and without limiting the indemnity in Section 9.3.2 below, Owner shall defend (with counsel chosen by Owner and approved by City, whi ch such approval shall not be unreasonably withheld, conditioned or delayed), indemnify, and hold harmless the City Parties from and against any and all liabilities, losses, damages, judgments, fines, demands, claims, recoveries , deficiencies, costs and expenses (including, but not limited to, reasonable attorneys’ fees, disbursements and court costs and all other professional or consultant’s expenses) , based or asserted upon any act or omission of Owner or its officers or employees for property damage, bo dily injury, or death (Owner’s employees included) arising from the activities conte mplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, and operation the Project. The 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 any of the City Parties fail to cooperate in the defense as finally determined by a cou rt or arbitrator of competent jurisdiction , Owner shall not thereafter be responsibl e to defend, indemnify, or hold harmless the City Parties.

9.3.2 City. City agrees to indemnify, defend (with counsel chosen by City and approved by Owner, which such approval shall not be unreasonably withheld, conditioned or delayed), and hold harmless Owner, American General Design, Inc. (dba Adept Development), a 338
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California corporation and Povac Investments, Inc., a California corporation and each of their respective officers and employees (collectively, the “ Owner Parties”) from and against any and all liabilities, losses, damages, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, but not limited to, re asonable attorneys’ fees, d isbursements and court costs and all other professional or consultant’s expenses) ar ising from any governmental agency stopping or delaying construction or occupancy of the Project after the “Commencement of Construction” (as defined below) as a result of City’s failure to pay any amounts imposed by the State of California (if any) pursua nt to California Government Code Sections 54220 through 54234 in connection with the City’s disposition of the Property to Owner. Owner shall promptly notify City of any suc h stoppage or delay, and Owner shall cooperate in the defense. If Owner fails to promptly notify Owner of any such stopped or delay, or if any of the Owner Parties fail to cooperate in the defense as finally determined by a cour t or arbitrator of competent jurisdiction, City shall not thereafter be responsible to defend, indemnify, or hold harmless the Owner Parties.

For purposes of this Section 9.3.2, the term “ Commencement of Construction ” shall mean that both of the following have occurred: (a) construc tion of a building has commenced pursuant to and in accordance with a building permi t issued by the City, City -approved final construction drawings, the Existing Land Use Regulations , the Development Approvals, and all applicable laws; and (b) Owner has expended at least $5,000 in labor and materials for such construction.

For purposes of this definition only, “construction” shall mean construction of improvements permanently fixed to the site (e.g., a foundation or similar), incl uding, without limitation, utilities, public or private streets, public or private site improvements, landscaping or ancillary structures such as block walls, trash enclosures, and any grading, excavation, demolition, grubbing, or other site preparation.

9.4 Environment Assurances. Owner shall defend (with counsel chosen by Owner), at its expense, including attorne ys’ fees, indemnify, and hold harmless the City Parties from any liability, based or asserted, upon any act or omission of Owner , its officers, a gents, employees, subcontractors, and/or 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 that were not present prior to the date that Owner took possession of the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including reasonable attorneys’ fees, the City Parties in any action based or asserted upon any such alleged ac t or omission. City may in its discretion participate in the defense of any such action.

9.5 Reserved.

9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement for a period of two (2) years a fter such termination, except to the extent such indemnification relates to any thi rd party claims, in which event such indemnification shall survive until the expiration of any applicable statute of limitations.

10. MORTGAGEE PROTECTION.

The parties heret o agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust , or other security device securing financing 339
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with respect to the Property (“Security Instrument ”). City acknowledges that t he lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, t o meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpret ation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is c onsistent with the intent and purposes of this Agreement.

The City further agrees to cooperate in including in this Agreement by suitable amendment from time to time any provision that may reasonably be requested by any proposed Mortgagee for the purpose of allowing such Mortgagee reasonable means to protect or preserve a lien and securi ty interest of its S ecurity Instrument, as well as such other documents containing terms and provisions customarily required by Mortgagees (taking into account the customar y requirements of their participants, syndication partners or rating agencies) in connection with any such financing (a “Lender Proposed Amendment”). The City agrees to execute and deliver (and to acknowledge, if necessary, for recording purposes) any agr eement necessary to effectuate a Lender Proposed Amendment; provided, however, that any such Lender Proposed Amendment shall not in any way materially adversely affect any rights of the City under this Agreement. If there is any conflict between this Arti cle 10 and any other provisions contained in this Agreement, this Article 10 shall control. 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 sh all defeat, render invalid, diminish or impair the lien of any Security Instrument on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any Security Instrument , or any part the reof, which Mortgagee, has submitted a request in writing to the City in the manner specified herein for giving notices, shall be entitled to receive written notification from City of any default by Owner in the performance of Owner’s obligations under this Agreement. (c) If City timely receives a request from a Mortgagee requesting a copy of any notice of default given to Owner under the terms of this Agreement, City shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to Owner . The Mortgagee shall have the right, but not the obligation, to cure the default for a period of sixty (60) days after Mortgagee receives written notice of non- compliance, or any longer period as is reasonably necessary, not to e xceed one hundred eighty (180) days, to remedy such default, provided that Mortgagee shall continuously and dil igently pursue the remedy at all times until the default is cured.
(d) Any Mortgagee who takes title of the Property, or any part thereof, pursuant to foreclosure trustee's sale, deed in lieu of foreclosure, lease or sublease termination or otherwise , shall take the Property, or part thereof, subject to the terms of this Agreement , provided that any such Mortgagee, including its affiliate, that takes title to the Property shall be entitled to all of the benefits arising under this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Owner’s obligations or other a ffirmative covenants of Owner hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Owner is a condition precedent to the performance of a covenant by City , the performance thereof shall 340
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continue to be a condition precedent to City ’s performance hereunder, and further provi ded that any sale, transfer , or assignment after the initial sale, transfer, or assignment by any Mortgagee shall be subject to the provisions of Section 2.4 of this Agreement. (e) If any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature of foreclosure by any process or injunction issued by any court or by reason of any action by any c ourt having jurisdiction of any bankruptcy or insolvency proceedings involving Owner , the times specified in Se ction clause (c) above, shall be extended for the period of the prohibition, except that any such extension shall not extend the term of this Agreement.
(f) If this Agreement is terminated by reason of ( i) any default or ( ii) as a result of a bankruptcy pr oceeding, this Agreement is disaffirmed by a receiver, liquidator, or trustee for Owner or its property, the City, if requested by any Mortgagee, shall negotiate in good faith with such Mortgagee for a new development agreement for the Project as to such portion of the Property with the most senior Mortgagee requesting such new agreement. This Agreement does not require any Mortgagee or the City t o enter into a new developm ent agreement pursuant to this clause (f).
(g) The City shall, at any time and withi n thirty (30) days following the written request of a Mortgagee, but not more often than annually, certify in writing to such Mortgagee that (a) this Agreement is in full f orce and effect, (b) this Agreement has not been amended or modified or, if so amend ed or modified, identifying the amendments and modifications, and (c) to the actual knowledge of City with no duty to investigate, Owner is not i n default in the performance of its obligations under this Agreement or, if in default, to describe therein the nature and extent of any such default. Any such estoppel certificate shall be administratively issued by the City Manager or his/her representative or designee.

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 req uired 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 this Agreement as provide d 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 Berna rdino County Recorder. A failure to record the Agreement in a timely fashion shall not impact its effectiveness to the extent permitted by applicable law.

11.2 Entire Agreement . This Agreement sets forth and contains the entire understanding and agreement of the parties, and there ar e no oral or written representations, understandings or ancillary covenants, undert akings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be adm issible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 341
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11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the r emainder of this Agreement shall not be affected thereby to the extent such remaini ng provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, in the event the provision re garding the payment of Deferred DIFs set forth in Section 4 .2.2 of this Agreement is determined to be invalid, void or unenforceable, the parties shall enter into a separate written a greement for the repayment of such Deferred DI Fs consistent with Section

4.2.2. 11.4 Interpretation 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 lang uage 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.

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

11.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one ow ner, all obligations of suc h owners under this Agreement shall be joint and several, and the default of any suc h owner shall be the default of all such owners.

11.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.

11.9 Waiver. Failure by a party to insist upon the strict performance of a ny 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 No Third Party Beneficiaries . This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns , except that the Owner Parties and City Parties are third party beneficiaries of the indemnities in Section 9 . No other person shall have any right of action based upon any provision of this Agreement.

11.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, insurrection, riots, civil unrest, acts of terrorism or similar hostilities, strikes , boycotts, lock- outs, and other labor difficul ties beyond the party’s control (including the party’s employment force), inability to procure services, labor or materials not related to the price ther eof, failure of electric powe r, governmental actions, governmental laws, regulations or restrictions , third party litigation or administrative proceedings , actual or 342
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threatened public health emergency (including epidemic, pandemic, famine, disease, plague, quarantine, and other public health risk), governmental edicts, actions, declarations or quarantines by a governmental entity or health organization (including any shelter -in-place orders, stay at home orders or any restrictions on travel related thereto that preclude Owner , its agents, contractors or its employees from accessing the Property , national or regional emergency), declaration of a state or national emergency, casualties, weather that could not have reasonably been anticipated, changes in the Laws which would prevent the Pr operty from being developed or operated in accordance with this Agreement , or other reasons beyond the reasonable control of the party (individually a “ Force Majeure Event ” or collectively, “Force Majeure Events”). If any such ev ents shall occur, the term o f this Agreement and the time for performance by either party of any of its obligat ions hereunder shall be automatically extended for the period of time that such events prevented such performance, provided that the extensions of the term of this Agreemen t solely as a result of one or more Force Majeure Events shall not exceed a period of more than five (5) years in the aggregate.

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

11.13 Successors in Interest ; Covenants Running with the Land. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon eac h party and each successor in interest during ownership of the Property or any portion thereof. In any event, no owner or tenant of an individual completed residential unit within the Project shall have any rights under this Agreement.

11.14 Counterparts. This Agreement may be execu ted by the parties in counterparts, which counterparts shall be construed together a nd have the same effect as if all of the parties had executed the same instrument.

11.15 Jurisdiction and Venue . Any action at law or in equity a rising 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 Califo rnia, and the parties heret o waive all provisions of law providing for the filing, removal or change of venue to any other court.

11.16 Project as a Private Undertaking . It is specifically understood and agreed by and between the parties hereto that the de velopment 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 partnershi p, joint venture or other association of any kind is formed by this Agreement. The o nly relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property. 343
49114321.13

11.17 Further Actions a nd Instruments . Each of the parties shall cooperate with and provide reasonable ass istance 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 exec ute, 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 management level employee of the City.

11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by City of its power of eminent domain.

11.19 Agent for Service of Proc ess. In the event Owner is not a resident of the State of California or it is an ass ociation, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corpor ation, then in any such eve nt, Owner shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon Owner . If for any reason service of such process upon such agent is not feasible, then in such event Owner may be personally served with such process out of this County and such service shall constitute valid service upon Owner .

Owner is amenable to the process so served, submits to the jurisdiction of the Court so obtaine d 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 Matter s, 20 U.S.T. 361, T.I.A.S.

No. 6638).

11.20 Estoppel Certificate. Within thirty (30) 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 Agre ement 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 uncur ed defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be repre sented by the requesting party. Owner shall pay to City all reasonable 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 Authority to Execute . Each party represents and warr ants that the person or persons executing this Agreement on behalf of such party has the authority to execute this 344
49114321.13

Agreement on behalf of such party and has the authority to bind such party to the performance of its obligations hereunder.

11.22 Attorneys’ Fees. In the event of any action between the City and Owner for enforcement or interpretation of any of the terms or conditions of this Agreement, the prevailing party in such action shall be entitled to recover its reasonable c osts and expenses, including without limitation court costs and attorneys' fees actually and reasonably incurred, as awarded by a court of competent jurisdiction. This Section shall survive the termination of this Agreement.

[SIGNATURES CONTAINED ON FOLLOWING PAGE]
345
[Signature Page to Development Agreement]

SIGNATURE PAGE

TO DEVELOPMENT AGREEMENT

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
“Owner”

OTC Lot C Owner, LLC
a Delaware limited liability company

By: ________________________
Name:

Its: ______________________
Date: ___________________

“CITY”

City OF ONTARIO

By:

Scott Ochoa
City Manager

Date: ___________________

ATTEST:

City Clerk, Ontario

APPROVED AS TO FORM:

Kane, Ballmer & Berkman, City Special
Counsel
346

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. 347

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. 348

EXHIBIT “A”

TO DEVELOPMENT AGREEMENT

Legal Description of Property

APN NO. 0210-204-38

BEING A PORTION OF PARCEL 20, PARCEL MAP NO. 17550, IN THE CITY OF

ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 216, PAGES 7 THROUGH 20, INCLUSIVE OF PARCEL MAPS, IN

THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY, MORE
PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHEAST CORNER OF SAID PARCEL 20, AS SHOWN ON SAID PARCEL MAP;
THENCE NORTH 89° 22’ 30” WEST, ALONG THE SOUTH LINE OF SAID PARCEL 20, 184.06 FEET;
THENCE LEAVING SAID SOUTH LINE, THE FOLLOWING THREE (3) COURSES:

NORTH 00° 00’ 00’ EAST 302.44 FEET;
NORTH 90° 00’ 00” EAST 42.92 FEET;
NORTH 00° 00’ 00” WEST 96.10 FEET, TO A POINT ON A LINE THAT IS PARALLEL WITH AND 31.00 FEET SOUTH, MEASURED AT RIGHT ANGLES, TO THE NORTH LINE OF SAID PARCEL 20;
THENCE, NORTH 89° 22’ 30” WEST 287.51 FEET, TO A POINT ON THE WEST LINE OF SAID PARCEL 20;
THENCE, NORTH 00° 37’ 30” EAST 31.00 FEET, TO THE NORTHWEST CORNER OF SAID PARCEL 20;
THENCE, SOUTH 89° 22’ 30” EAST ALONG THE NORTH LINE OF SAID PARCEL 20, 430.00 FEET TO THE NORTHEAST CORNER OF SAID PARCEL 20;
THENCE, SOUTH 00° 37’ 30” WEST 430.00 FEET, TO THE POINT OF BEGINNING;

SAID LAND IS SHOWN AS PARCEL B OF LOT LINE ADJUSTMENT NO. LLA17-008, RECORDED SEPTEMBER 7, 2017 AS INSTRUMENT NO. 2017-0370546, OF OFFICIAL RECORDS.
349

EXHIBIT “B”

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

N
350

EXHIBIT “B” CONTINUED

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

LOT C N
351

EXHIBIT “C”

TO DEVELOPMENT AGREEMENT

Development Impact Fees as of the Approval Date

(Development Impact Fees to follow this page)
352
Component of the FY 2021-22 Budget
Adopted June 21, 2021 (Resolution No. 2021-062)
Citywide Fee Schedule
FY 2021-22
(Fees, Fines & Charges)
Exhibit C
353
City of Ontario
FY 2021-22 Citywide Fee Schedule
Table of Contents
II. Community Life & Culture
Section 5. Housing Fees 3
III. Community Development
Section 1. Building Fees 4
Section 2. Engineering Fees 15
Section 3. Planning Fees 20

354
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges II. - Community Life & Culture
Section 5. Housing Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Housing Fees
1 Base Affordable Housing Monitoring Fee* Base 747.68$ $ 747.00 7/1/2021 2 Per Unit Affordable Housing Monitoring Fee* Per unit 107.94$ $ 107.00 7/1/2021 3 Loan Payoff Process Fee - without equity share Each 251.11$ $ 251.00 7/1/2021 4 Loan Payoff Process Fee - with equity share Each 400.39$ $ 400.00 7/1/2021 5 Preparation of Full Reconveyance Each 248.13$ $ 248.00 7/1/2021 * Affordable Housing Monitoring Fee does not
apply to bond-funded projects.

Note: Loan Payoff and Reconveyance fees may be
waived if individuals are under financial hardship.

Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Building Plan Check Fees
1 Building Plan Check Fee % of Permit N/A 80.00% 7/1/2021 2 Building Plan Check for track housing or duplicate building % of Permit N/A 40.00% 7/1/2021 3 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Less than $1
million
N/A 50.00% 7/1/2021
4 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $1 and
$5 million
N/A 40.00% 7/1/2021
5 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $5 and
$10 million
N/A 30.00% 7/1/2021
6 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Between $10 and
$20 million
N/A 20.00% 7/1/2021
7 Expedited Plan Check Program Original Plan Check Fee Plus Additional Percent: Greater than $20
million
N/A 10.00% 7/1/2021

356
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Building Permit Fees
8 Building Permit - Base Fee ($1-$500) Valuation: $1 to $500 N/A $ 23.50 7/1/2021 9 Building Permit - Base Fee ($501-$2000) Valuation: $501 to $2,000 N/A $ 23.50 7/1/2021 10 Building Permit Fee (Each additional $100, or fraction thereof, up to and including $2000)
Each additional $100, or fraction
thereof, up to and including $2,000
N/A $ 3.05 7/1/2021
11 Building Permit - Base Fee ($2001-$25,000) Valuation: $2,001 to $25,000 N/A $ 69.25 7/1/2021 12 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $25,000)
Each additional $1,000, or fraction
thereof, up to and including
$25,000
N/A $ 14.00 7/1/2021
13 Building Permit - Base Fee ($25,001-$50,000) Valuation: $25,001 to $50,000 N/A $ 391.25 7/1/2021 14 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $50,000)
Each additional $1,000, or fraction
thereof, up to and including $50,000
N/A $ 10.10 7/1/2021
15 Building Permit - Base Fee ($50,001-$100,000) Valuation: $50,001 to $100,000 N/A $ 643.75 7/1/2021 16 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $100,000)
Each additional $1,000, or fraction
thereof, up to and including $100,000
N/A $ 7.00 7/1/2021

357
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
17 Building Permit - Base Fee ($100,001-$500,000) Valuation: $100,001 to $500,000 N/A $ 993.75 7/1/2021 18 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $500,000)
Each additional $1,000, or fraction
thereof, up to and including $500,000
N/A $ 5.60 7/1/2021
19 Building Permit - Base Fee ($500,001-$1,000,000) Valuation: $500,001 to $1,000,000 N/A $ 3,233.75 7/1/2021 20 Building Permit Fee (Each additional $1,000, or fraction thereof, up to and including $1,000,000)
Each additional $1,000, or fraction
thereof, up to and including
$1,000,000
N/A $ 4.75 7/1/2021
21 Building Permit - Base Fee (Greater than $1,000,001) Valuation: $1,000,001 and up N/A $ 5,608.75 7/1/2021 22 Building Permit Fee (Each additional $1,000 or fraction thereof, greater than $1,000,001)
Each additional $1,000, or fraction
thereof
N/A $ 3.65 7/1/2021

358
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Misc. Standard Building Permits
23 Kitchen Remodel (non-structural) Each 258.99$ $ 258.00 7/1/2021 24 Bathroom Remodel Each 129.50$ $ 129.00 7/1/2021 25 Demolition - Entire Structure Valuation N/A Varies 7/1/2021 26 Patio Covers - Solid Valuation N/A Varies 7/1/2021 27 Patio Covers - Lattice Valuation N/A Varies 7/1/2021 28 Patio Covers - Enclosures Valuation N/A Varies 7/1/2021 29 Pole Bases Valuation N/A Varies 7/1/2021
30 Roofing Valuation N/A Varies 7/1/2021
31 Storage Sheds Valuation N/A Varies 7/1/2021 32 Stucco Valuation N/A Varies 7/1/2021
33 Swimming Pools/Spas Valuation N/A Varies 7/1/2021 34 Tenant Improvements - With Ceiling Valuation N/A Varies 7/1/2021 35 Tenant Improvements - Without Ceiling Valuation N/A Varies 7/1/2021 36 Trash Enclosures - Single Valuation N/A Varies 7/1/2021 37 Trash Enclosures - Double Valuation N/A Varies 7/1/2021 38 Walls - Retaining Valuation N/A Varies 7/1/2021 39 Walls - Screen Garden Valuation N/A Varies 7/1/2021 40 Walls - Tilt-Up Screen Walls Valuation N/A Varies 7/1/2021 41 Window Changeout Valuation N/A Varies 7/1/2021

359
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
Electrical Permit Fees
42 Electrical Permit Issuance Fee Each 41.63$ $ 41.00 7/1/2021 43 Electrical Permit - Temporary Power Service Pedestal Each 86.33$ $ 86.00 7/1/2021 44 Electrical Permit - Temporary Power Service Distribution system Each 43.17$ $ 43.00 7/1/2021 45 Electrical Permit - outlet/switch/fixture First 20 fixtures 129.50$ $ 129.00 7/1/2021 46 Electrical Permit - Additional Fixtures Each 2.94$ $ 2.90 7/1/2021 47 Electrical Permit - Power Apparatus -up to and including 1 each HP, kW, kVA or kVAR 143.83$ $ 143.00 7/1/2021 48 Electrical Permit - Power Apparatus - over 1 to 10 each HP, kW, kVA or kVAR 158.33$ $ 158.00 7/1/2021 49 Electrical Permit - Power Apparatus - over 10 to 50 each HP, kW, kVA or kVAR 172.66$ $ 172.00 7/1/2021 50 Electrical Permit - Power Apparatus - over 50 to 100 each HP, kW, kVA or kVAR 258.99$ $ 258.00 7/1/2021 51 Electrical Permit - Power Apparatus - over 100 each HP, kW, kVA or kVAR 345.32$ $ 345.00 7/1/2021 52 Electrical Permit - Services -for services of 600 volts or less and not over 200 amperes in rating
Each 172.66$ $ 172.00 7/1/2021 53 Electrical Permit Fee - Services -for services of 600 volts or less and over 200 amperes to 1,000 amperes in rating
Each 258.99$ $ 258.00 7/1/2021 54 Electrical Permit Fee - Services -for services over 600 volts or over 1,000 amperes in rating
Each 431.65$ $ 431.00 7/1/2021 55 Electrical Permit Fee - Miscellaneous Apparatus, Conduits and Conductors
Each 143.83$ $ 143.00 7/1/2021 56 Electrical Permit Fee- Subpanel Each N/A $ 172.00 7/1/2021 57 Electrical Permit Fee - Signs Each N/A $ 86.00 7/1/2021 58 Electrical Permit Fee - Private Swimming Pools Each Pool or Spa N/A $ 129.00 7/1/2021

360
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
59 Electrical Permit Fee - Other Inspections and Fees, inspections outside of normal business hours: minimum charge 3 hrs.

Per Hour 113.00$ $ 113.00 7/1/2021 60 Electrical Permit Fee - Inspections Per Hour 113.00$ $ 113.00 7/1/2021 61 Electrical Permit Fee - Reinspection Fees Per Hour 113.00$ $ 113.00 7/1/2021 62 Electrical Permit Fee - Additional plan review Per Hour 113.00$ $ 113.00 7/1/2021 63 New Construction Trades - Electrical : Residential Per Square Foot 0.10791$ $ 0.1079 7/1/2021 64 New Construction Trades - Electrical : Commercial Per Square Foot 5.22301$ $ 0.1200 7/1/2021 65 New Construction Trades - Electrical: Industrial / warehouse (0-50,000 sf)
Per Square Foot 0.01209$ $ 0.0120 7/1/2021 66 New Construction Trades - Electrical : Industrial / warehouse (>50,000 sf)
Per Square Foot 0.00388$ $ 0.0038 7/1/2021 Mechanical Permit Fees
67 Mechanical Permit Issuance Fee Each 41.75$ 41.00$ 7/1/2021 68 Mechanical Permit Fee (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems -under 3 HP (10.6kW) or to and including 100,000 Btu/h (29.3kW)
Each 172.66$ 172.00$ 7/1/2021 69 Mechanical Permit Fees (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems-over 3 HP (10.6kW) to and including 15 HP (52.7kW), or over 100,000 Btu (29.3kW) to and including 500,000 Btu/h (146.6kW)
Each 215.83$ 215.00$ 7/1/2021

361
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
70 Mechanical Permit Fees (includes issuance fee) - Furnaces, Boilers, Compressors and Absorption Systems -over 15 HP (52.7 kW) to and including 30 HP (105.5 kW), over 500,000 Btu/h (146.6 kW) to and including 1,000,000 Btu/h (293.1 kW)
Each 258.99$ 258.00$ 7/1/2021 71 Mechanical Permit Fees (includes issuance fee)- Furnaces, Boilers, Compressors and Absorption Systems -over 30 HP (105.5 kW) to and including 50 HP (176 kW), or over 1,000,000 Btu/h (293.1 kW) to and including 1,750,000 Btu/h (512.9 kW)
Each 345.32$ 345.00$ 7/1/2021 72 Mechanical Permit Fees (includes issuance fee)- Furnaces, Boilers, Compressors and Absorption Systems -over 50 HP (176 kW) or over 1,7500,000 Btu/h (512.9kW)
Each 517.98$ 517.00$ 7/1/2021 73 Mechanical Permit Fees (includes issuance fee)- Evaporative Coolers Each 172.66$ 172.00$ 7/1/2021 74 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust -each fan connected to single duct
Each 172.66$ 172.00$ 7/1/2021 75 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust-each which is not a portion of any heating or a/c system authorized by a permit
Each 172.66$ 172.00$ 7/1/2021 76 Mechanical Permit Fees (includes issuance fee)- Ventilation and Exhaust -each hood served by mechanical exhaust
Each 345.32$ 345.00$ 7/1/2021

362
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
77 Mechanical Permit Fee - Process Piping Valuation N/A Varies 7/1/2021 78 Mechanical Permit Fee - Wall Heater Each N/A 43.00$ 7/1/2021 79 Mechanical Permit Fees - Miscellaneous (one inspection) Each 86.33$ 86.00$ 7/1/2021 80 Mechanical Permit Fees - Inspection outside of normal business hours Per Hour 113.00$ 113.00$ 7/1/2021 81 Mechanical Permit Fees - Reinspection Fees Per Hour 113.00$ 113.00$ 7/1/2021 82 Mechanical Permit Fees - No Fee Specifically Indicated Per Hour 113.00$ 113.00$ 7/1/2021 83 Mechanical Permit Fees - Additional Plan Review Per Hour 113.00$ 113.00$ 7/1/2021 84 New Construction Trades - Mechanical: Residential Per Square Foot 0.0647$ 0.0647$ 7/1/2021 85 New Construction Trades - Mechanical : Commercial Per Square Foot 0.0647$ 0.0647$ 7/1/2021 Plumbing Permit Fees
86 Permit issuance fee Each 41.75$ 41.00$ 7/1/2021 87 Plumbing Permit Fees - First 15 Fixtures and Vents (new & alterations) First 15 Fixtures/Vents 172.66$ 172.50$ 7/1/2021 88 Plumbing Permit Fees - Each Additional Each 172.66$ 10.78$ 7/1/2021 89 Plumbing Permit Fees - Sewers Each 172.66$ 172.50$ 7/1/2021

363
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
90 Plumbing Permit Fees - Sewage disposal system Each 431.65$ 431.50$ 7/1/2021 91 Plumbing Permit Fees -Industrial waste pretreatment interceptor Each 172.66$ 172.50$ 7/1/2021 92 Plumbing Permit Fees - Water Piping First 20 outlets First 20 Outlets 129.50$ 129.00$ 7/1/2021 93 Plumbing Permit Fees - Water Piping Each Additional Outlet Each Outlet 129.50$ 5.23$ 7/1/2021 94 Plumbing Permit Fees - Water heater including vent Each 172.66$ 12.92$ 7/1/2021 95 Plumbing Permit Fees - Gas Piping Systems First 5 Outlets First 5 Outlets 647.50$ 129.50$ 7/1/2021 96 Plumbing Permit Fees - Gas Piping Systems Each Additional Each Addt'l Outlet 129.50$ 6.77$ 7/1/2021 97 Plumbing Permit Fees - Lawn Sprinklers Each lawn sprinkler system on any one meter
172.66$ 172.50$ 7/1/2021 98 Plumbing Permit Fees - Backflow Protection Devices Each Device 172.66$ 172.50$ 7/1/2021 99 Plumbing Permit Fees - Miscellaneous Each appliance or equipment regulated by the Plumbing Code but
not classed in other appliance
categories, or for which no fee is listed
in this code

86.33$ 86.00$ 7/1/2021

364
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
100 Plumbing Permit Fees - Reinspection Fees Per Hour 113.00$ 113.00$ 7/1/2021 101 Plumbing Permit Fees - No Fee Specifically Indicated Per Hour 113.00$ 113.00$ 7/1/2021 102 Plumbing Permit Fees - Additional Plan Review Per Hour 113.00$ 113.00$ 7/1/2021 103 New Construction Trades - Plumbing : Residential Per SF 0.10791$ 0.1070$ 7/1/2021 Grading Plan Review Fees (up to three submittals of plans) 104 Grading plan check, rough (0-10 acres) Each 1,381.29$ 1,381.00$ 7/1/2021 105 Grading plan check, rough (>10 acres) Each 1,381.29$ 1,381.00$ 7/1/2021 106 Grading plan check, rough (each additional 5 acres) Each 345.32$ 345.00$ 7/1/2021 107 Grading plan check, precise (0-10 acres) Each 1,726.61$ 1,726.50$ 7/1/2021 108 Grading plan check, precise (>10 acres) Each 1,726.61$ 1,726.50$ 7/1/2021 109 Grading plan check, precise (each additional 5 acres) Each 517.98$ 517.50$ 7/1/2021 Grading Permit Fees
110 Grading permit, rough (0-50 acres) Each 345.32$ 345.00$ 7/1/2021 111 Grading permit, rough (each additional 10 acres) Each 86.33$ 86.00$ 7/1/2021

365
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 1. Building Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
112 Grading permit, precise (0-50 acres) Each 431.65$ 431.50$ 7/1/2021 113 Grading permit, precise (each additional 10 acres) Each 129.50$ 129.50$ 7/1/2021 114 Soil Disturbance Permit - Dust Control Each N/A 250.00$ 7/1/2021 Miscellaneous Fees
115 Building plan retention fee Per Plan Page N/A 1.50$ 7/1/2021 116 Permits, Calcs and Misc. doc 8.5x11 / per page N/A 0.35$ 7/1/2021 Sewer, Water, Storm Drain Permit & Plan Check Fees
117 Sewer Main Inspection Permit Per Lineal Foot 3.17$ 3.17$ 7/1/2021 118 Water Main Inspection Permit Per Lineal Foot 0.63$ 0.63$ 7/1/2021 119 Storm Drain - main Inspection Permit Per Lineal Foot 0.63$ 0.63$ 7/1/2021 120 Storm Drain - yard Inspection Permit Per Lineal Foot 0.29$ 0.29$ 7/1/2021 121 Sewer, Water, Storm Drain
Plan check fee = % of permit valuation
% of Permit Valuation 2.00% 2.00% 7/1/2021
Resolution No. 2004-065
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

366
City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
1 Inspection / Permit - Base Fee Base 164.09$ 164.00$ 7/1/2021 2 Inspection / Permit Fees
$1 - $50,000
Construction cost estimate 5.97% 5.97% 7/1/2021
3 Inspection / Permit Fees
$50,001 - $500,000
Construction cost estimate 5.45% 5.45% 7/1/2021
4 Inspection / Permit Fees >$500,000 Construction cost estimate 4.24% 4.24% 7/1/2021 5 Plan Check - Base Fee (includes
grading, NPDES etc.)
Base 1,371.16$ 1,371.00$ 7/1/2021 6 Plan Check Fees
$1 - $50,000
Construction cost estimate 6.00% 6.00% 7/1/2021
7 Plan Check Fees
$50,001 - $500,000
Construction cost estimate 4.65% 4.65% 7/1/2021
8 Plan Check Fees >$500,000 Construction cost estimate 3.62% 3.62% 7/1/2021 9 Encroachment Permit Fee Each 162.91$ 112.80$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
10 Inspection for minor improvements
(driveways, pole replacement, etc.)
Inspection for single item (2
inspections, before and after)
167.02$ 108.15$ 8/21/2021 11 Traffic Control Permit Each 103.49$ 103.00$ 7/1/2021 12 Overload Permit (single trip) - One
time
Each N/A 19.20$ 8/21/2021
13 Overload Permit (round trip) - Annual Each N/A 108.00$ 8/21/2021 14 Permit Penalty Fee Percent of Permit Value N/A 50.00% 7/1/2021 15 Map Review (Parcel/Tract) - Base Fee Each 7,666.96$ 2,588.40$ 8/21/2021 16 Map Review - Addt'l per parcel Per Parcel 70.48$ 70.00$ 8/21/2021 17 Certificate of Compliance Each 790.69$ 745.20$ 8/21/2021 18 Lot Line Adjustment - Base Fee Each 1,286.16$ 1,159.20$ 8/21/2021 19 Lot Line Adjustment - Addt'l per
parcel
Per parcel 59.43$ 59.00$ 7/1/2021 20 General Vacation Each 3,805.94$ 1,902.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
21 Quit Claim / Summary Vacation Each 2,049.22$ 1,087.20$ 8/21/2021 22 Certificate of Correction Each 823.10$ 480.00$ 8/21/2021 23 Easement review Each 1,691.08$ 1,691.00$ 7/1/2021 24 NPDES business inspection fee - low
priority
One inspection every 5 years 59.43$ 59.00$ 7/1/2021 25 NPDES business inspection fee -
medium priority
One inspection every 2 years 118.85$ 118.00$ 7/1/2021 26 NPDES business inspection fee - high
priority
Inspection each year 237.70$ 237.50$ 7/1/2021 27 NPDES/WQMP Plan Review Each 2,160.65$ 1,112.40$ 8/21/2021 28 NPDES Construction Inspection Fee
(< 10 acres)
Each 505.66$ 505.50$ 7/1/2021 29 NPDES Construction Inspection Fee
(10-25 acres)
Each 905.50$ 905.50$ 7/1/2021 30 NPDES Construction Inspection Fee
(> 25 acres)
Each 2,074.37$ 2,074.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
31 Overtime Pay for Inspection
(Weekends & Holidays)
Per Hour N/A Hourly Rate 7/1/2021
32 Misc. / Special Technical Report
Review Fee
Actual Cost (Plus 25% Admin for
consultant review, if applicable)
N/A Varies 7/1/2021
33 Water Meter - OMUC Fee Based on meter size - OMUC Fee N/A Varies 7/1/2021 34 Storm Water Pollution Abatement Monthly BAU fee based on land use type & site acreage (applied to utility
bill)
N/A Varies 7/1/2021
35 Legal review Per Hour N/A Hourly Rate 7/1/2021

PLANNING APPLICATIONS REVIEWED BY LAND DEVELOPMENT ENGINEERING 36 Development Agreement Deposit N/A Varies 7/1/2021 37 Development Agreement Amendment Deposit N/A Varies 7/1/2021 38 Development Code Amendment Deposit N/A Varies 7/1/2021 39 Environmental Impact Report Deposit N/A Varies 7/1/2021 40 General Plan Amendment Deposit N/A Varies 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 2. Engineering Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
41 Planned Unit Development Deposit N/A Varies 7/1/2021 42 Planned Unit Development
Amendment
Deposit N/A Varies 7/1/2021
43 Specific Plan Deposit N/A Varies 7/1/2021
44 Specific Plan Amendment Deposit N/A Varies 7/1/2021 45 Specific Plan Minor Amendment Deposit N/A Varies 7/1/2021 46 Zone Change - 5 acres or more Deposit N/A Varies 7/1/2021 47 Zone Change - Less than 5 acres Deposit N/A Varies 7/1/2021 Resolution No. 2004-065
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
1 Land Conservation Contract Non-renewal Each 3,817.21$ 1,401.85$ 8/21/2021 2 Land Conservation Contract Cancellation Each 16,679.06$ 6,431.53$ 8/21/2021 3 Appeal-Homeowner Each N/A 130.00$ 7/1/2021 4 Appeal-Other Each N/A 902.00$ 7/1/2021 5 Covenants Conditions and Restrictions Review Each 4,940.68$ 3,067.50$ 8/21/2021 6 Conditional Use Permit-Homeowner Each 4,894.70$ 1,784.26$ 8/21/2021 7 Conditional Use Permit-Nonprofit Each 3,520.01$ 2,691.60$ 8/21/2021 8 Conditional Use Permit-Other Each 5,901.35$ 5,900.00$ 7/1/2021 9 Conditional Use Permit-Modification Each 5,901.35$ 3,693.27$ 8/21/2021 10 Conditional Use Permit-w/ Development Plan Each 4,724.75$ 1,567.20$ 8/21/2021 11 Conditional Use Permit Time Extension Each 1,381.04$ 1,380.00$ 7/1/2021 12 Determination of Use Each 3,316.06$ 3,316.00$ 7/1/2021 13 Development Agreement Deposit N/A $ 10,000.00 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
14 Development Agreement Amendment Deposit N/A $ 7,500.00 7/1/2021 15 Development Code Amendment Deposit N/A $ 2,000.00 7/1/2021 16 Development Plan Review - 5 acres or more Each 24,846.74$ 17,914.80$ 8/21/2021 17 Development Plan Review - less than 5 acres Each 21,465.84$ 11,913.15$ 8/21/2021 18 Development Plan Revision Each 16,735.49$ 4,582.85$ 8/21/2021 19 Development Plan Time Extension Each 1,381.04$ 1,380.00$ 7/1/2021 20 Environmental Assessment/Negative Declaration Each 3,155.59$ 3,155.00$ 7/1/2021 21 Environmental Impact Report Deposit N/A 10,000.00$ 7/1/2021 22 General Plan Amendment - Text Deposit N/A 5,000.00$ 7/1/2021 23 General Plan Amendment - Map Deposit N/A 7,500.00$ 7/1/2021 24 Historic Preservation - COA-Nonresidential Each 4,677.04$ 1,533.75$ 8/21/2021 25 Historic Preservation - COA-Residential Each 4,677.04$ 214.73$ 8/21/2021 26 Historic Preservation - COEH-Nonresidential Each 6,846.51$ 2,045.00$ 8/21/2021 27 Historic Preservation - COEH-Residential Each 6,846.51$ 268.92$ 8/21/2021 28 Historic Preservation - Removal from Eligibility List (No Charge)
Each 6,366.15$ No Charge 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
29 Historic Preservation - Waiver Each 42.96$ 42.50$ 7/1/2021 30 Historic Preservation - Landmark Designation (No Charge) Each 12,025.51$ No Charge 7/1/2021 31 Historic Preservation - Plaque Actual Cost Varies Varies 7/1/2021 32 Inspection - Construction (3 inspections) Each 5,342.05$ 613.50$ 8/21/2021 33 Inspection - Field (includes construction inspections in excess of 3)
Each 1,335.51$ 255.63$ 8/21/2021 34 Residential Mills ActA Each 10,939.36$ 214.73$ 8/21/2021 35 Nonresidential Mills ActA Each 10,939.36$ 669.74$ 8/21/2021 36 Large Family Daycare Each 2,127.81$ 1,116.57$ 8/21/2021 37 Lodging House Permit Each 2,127.81$ 2,127.00$ 7/1/2021 38 Massage Permits Each 2,127.81$ 2,127.00$ 7/1/2021 39 Plan Check - 5 or more acres Each 9,196.43$ 3,070.10$ 8/21/2021 40 Plan Check - less than 5 acres Each 5,685.72$ 1,717.10$ 8/21/2021 41 Planned Unit Development Deposit 20,926.28$ 10,225.00$ 8/21/2021 42 Planned Unit Development Amendment Deposit 13,947.59$ 7,668.75$ 8/21/2021 43 Planning Area Plan Deposit N/A 7,500.00$ 7/1/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
44 Planning Director Review Each 1,057.33$ 706.55$ 8/21/2021 45 Preliminary Plan Review Each 4,207.14$ 4,203.00$ 7/1/2021 46 Public Hearing - City Council Each 769.75$ 604.30$ 8/21/2021 47 Public Hearing - Development Advisory Board Each 497.12$ 325.16$ 8/21/2021 48 Public Hearing - Planning Commission Each 1,325.44$ 604.30$ 8/21/2021 49 Public Hearing - Zoning Administrator-Homeowner Each 1,764.14$ 74.64$ 8/21/2021 50 Public Hearing - Zoning Administrator-Other Each 1,764.14$ 584.87$ 8/21/2021 51 Sign Plan Each 519.34$ 246.42$ 8/21/2021 52 Sign Program - administrative approval Each 2,825.58$ 862.99$ 8/21/2021 53 Sign Program - planning commission approval Each 3,059.86$ 2,934.58$ 8/21/2021 54 Specific Plan Deposit N/A 20,000.00$ 7/1/2021 55 Specific Plan Amendment Deposit N/A 7,500.00$ 7/1/2021 56 Specific Plan Minor Amendment Deposit N/A 620.00$ 7/1/2021 57 Temporary Sign Permit Each 124.89$ 58.28$ 8/21/2021 58 Temporary Use Permit - interim uses Each 2,757.54$ 838.45$ 8/21/2021 59 Temporary Use Permit - special event Each 1,064.72$ 492.00$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
60 Tentative Parcel Map Each 15,986.07$ 6,641.14$ 8/21/2021 61 Tentative Parcel Map Modification Each 11,706.32$ 4,262.80$ 8/21/2021 62 Tentative Tract Map (Base) Flat 18,403.54$ 9,805.78$ 8/21/2021 63 Tentative Tract Map (per lot) Each 65.00$ 65.00$ 7/1/2021 64 Tentative Tract Map Modification Each 12,681.18$ 3,125.78$ 8/21/2021 65 Tentative Tract/Parcel Map Time Extension Each 7,378.97$ 1,227.00$ 8/21/2021 66 Variance - Administrative Exception or Minor Each 3,978.78$ 2,451.96$ 8/21/2021 67 Variance - Homeowner Each 3,978.78$ 309.82$ 8/21/2021 68 Variance - Other Each 5,266.37$ 3,508.20$ 8/21/2021 69 Wireless Permit: Facilities in Public Rights-of-Way Each 3,978.78$ 3,978.00$ 7/1/2021 70 Zone Change - 5 acres or more Each 10,575.56$ 7,666.71$ 8/21/2021 71 Zone Change - Less than 5 acres Each 9,194.99$ 7,497.99$ 8/21/2021 72 Zoning Administrator Review - Homeowner Each 3,978.78$ 200.41$ 8/21/2021 73 Zoning Administrator Review - Other Each 3,978.78$ 1,160.54$ 8/21/2021 74 Zoning/Land Use Verification Letter Each 499.56$ 195.30$ 8/21/2021

City of Ontario
FY 2021-22 Citywide Fee Schedule - Fees, Fines & Charges III. - Community Development
Section 3. Planning Fees
Fee # Fee Description Unit/Notes
Total Cost
to Provide
Services
FY 2021-22
Fee
Effective
Date
75 Notice of Exemption Filing Fee County Fee N/A $ 50.00 7/1/2021 76 Notice of Determination Filing Fee County Fee N/A $ 50.00 7/1/2021 77 Filing of a Negative/Mitigated Declaration County Fee N/A $ 2,404.75 7/1/2021 78 Filing of an Environmental Impact Report County Fee N/A $ 3,321.00 7/1/2021 79 Outside consultant or legal expenses Actual Cost Plus 25% Admin. Fee
N/A Varies 7/1/2021
80 Advanced Long Range Planning Percent of all Building Permits & Planning
Applications
914,960.12$ 5.00% 7/1/2021
Resolution No. 2004-065 (Entitlement Processing Fees excl. Mills Act) A Resolution No. 2005-115 (Mills Act Fees)
Resolution No. 2020-009
Resolution No. 2020-083
Resolution No. 2021-062
CPI Adjustment of 2.25% applied to select fees based on year-over-year change from Jan. 2020 to Jan. 2021 as measured by "Riverside-San Bernardino-Ontario Consumer Price Index"

RESOLUTION NO. PC22-030

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

ONTARIO, CALIFORNIA, RECOMMENDING THE CITY COUNCIL
APPROVE FILE NO. PDA22 -003-D, A DEVELOPMENT AGREEMENT

BETWEEN THE CITY OF ONTARIO AND OTC OWNER, LLC, TO

ESTABLISH THE TERMS AND CONDITIONS FOR A DEVELOPMENT
PLAN (FILE NO. PDEV22 -014) TO CONSTRUCT 104 RESIDENTIAL UNITS AND UP TO 14,095 SQUARE FEET OF COMMERCIAL /OFFICE/ RETAIL USES, ON APPROXIMETLY 2.04 ACRES OF LAND LOCATED

AT THE SOUTHEAST CORNER OF ONTARIO VIA PIEMONTE AND VIA VILLAGIO WITHIN THE MIXED-USE SUBAREAS 11 OF THE PIEMONTE

OVERLAY AT THE ONTARIO CENTER SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0210-204-38.

WHEREAS, OTC Owner, LLC , ("Applicant") has filed an Application for the approval of a Development Agreement , File No. PDA22-003-D, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and

WHEREAS, the Application applies to approximately 2.04 acres of land, located at the southeast corner of Via Piemonte and Via Villagio. The project site within the proposed mixed-use Subarea 8 of the Piemonte Overlay at the Ontario Center Specific Plan, and is presently vacant; and

WHEREAS, in 2006, the City Council approved the creation of the Piemonte Overlay of the Ontario Center Specific Plan (“Piemonte Overlay”), within the Urban Commercial land use district of the Ontario Center Specific Plan, establishing a master plan for the development of approximately 1.3 million square feet of retail, office, hotel, and entertainment uses, and more than 800 multiple-family dwelling units on the 84-acre overlay site. Several S pecific Plan Amendments have been approved for the Piemonte Overlay, modifying development intensities, parking requirements, architectural guidelines, and land use designations. The most recent Specific Plan Amendment, File No. PSPA21 -001, was approved by the City Council on April 19, 2022, and involved expanding the overlay boundary, adding the Mixed- Use land use designation, and establishing design guidelines for mixed-use projects; and

WHEREAS, the Ontario Center Specific Plan Environmental Impact Report (State Clearinghouse No. 1989041009) was certified on March 19, 1991, (hereinafter referred to as “Certified EIR”), in which development and use of the Project site was discussed in the Amendment to the Ontario Center Specific Plan (File No. 4059-SPA); and

WHEREAS, a Mitigated Negative Declaration was subsequently adopted on May 16, 2017, (hereinafter referred to as “MND”), in which development and use of the Project site was discussed in association with an Amendment to the Ontario Center Specific Plan (File No. PSPA16-003); and
378
Planning Commission Resolution
File No. PDA22-003-D
June 28, 2022

WHEREAS, the Planning Director of the City of Ontario prepared and approved for attachment to the Certified EIR and adopted MND, an Addendum to the Certified EIR and MND (hereinafter collectively referred to as “EIR Addendum”) in accordance with the requirements of the California Environmental Quality Act of 1970, together with State and local guidelines implementing said Act, all as amended to date (collectively referred to as “CEQA”); and

WHEREAS, the EIR Addendum was adopted by the City Council on April 19, 2022, in conjunction with File No. PSPA21- 001, a Specific Plan Amendment to the Piemonte Overlay at the Ontario Center Specific Plan, in which development and use of the Project site was discussed; and

WHEREAS, the environmental impacts of this Project were thoroughly analyzed in the Certified EIR and EIR Addendum, which concluded that implementation of the Project could result in a number of significant effects on the environment and identified mitigation measures that would reduce each of those significant effects to a less -than-significant level; 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

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 (hereinafter referred to as “ALUCP”), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overfl ight impacts of current and future airport activity; and

379
Planning Commission Resolution
File No. PDA22-003-D
June 28, 2022

WHEREAS, A Development Plan Application (File No. PDEV22-014) to construct four mixed-use buildings totaling 63,655 commercial square feet and 694 dwelling units on 13.3 acres of land located at 4000 East Ontario Center Parkway and the southeast and southwest corner of Via Piemonte and Via Villagio, within the Mixed- Use land use district of the Piemonte Overlay of the Ontario Center Specific Plan, has been filed in conjunction with the Development Agreement Application; 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 June 28, 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 body for the Project, the Planning Commissio n 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 the Project were reviewed in conjunction with an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearinghouse No. 1989041009) (“Certified EIR”), certified by the Ontario City Council on March 19, 1991, in conjunction with File No. 4059-SPA, in combination with an Addendum to the Mitigated Negative Declaration, adopted by the Ontario City Council on May 17, 2017, in conjunction with File No. PSPA16 -003. In addition, an EIR Addendum was adopted by the City Council on April 19, 2022, in conjunction with File No. PSPA21- 001, a Specific Plan Amendment to the Piemonte Overlay at the Ontario Center Specific Plan, in which development and use of the Project site was discussed; and

(2) The previous Ce rtified 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

380
Planning Commission Resolution
File No. PDA22-003-D
June 28, 2022

(4) The previous Certified EI R 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 C ertified 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

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 body 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 381
Planning Commission Resolution
File No. PDA22-003-D
June 28, 2022

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 . The proposed changes affect two of the four properties listed in the Available Land Inventory (Subareas 8 and 11; Map ID No. 124 and 125). T he residential capacity proposed in this P roject is consistent with the number of dwelling units (198) and density (48 du/ac) 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 (hereinafter referred to as “ONT”), 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 body 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, includi ng [ 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 2.04 acres of land generally located southeast corner of Via Piemonte and Via Villagio; and

b. The Development Agreement establishes parameters for the development of a mixed-use project for Lot D, consisting of 104 residential units and up to 14,095 square feet retail uses , within the proposed Mixed- Use Subarea 11 of the Piemonte Overlay of the Ontario Center 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 382
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consistent with The Ontario Plan Policy Plan (G eneral Plan), design guidelines and development standards for the Piemonte Overlay of the Ontario Center Specific Plan; and

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

d. 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

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

f. This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were reviewed with an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearing House No. 89041009) prepared for the related Amendment to the Piemonte Overlay at the Ontario Center Specific Plan (File No. PSPA21-001). 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: 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.

PDA22-003-D) 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.

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ATTACHMENT A:

File No. PDA22-003-D

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
OTC Owner, LLC
Lot D
a Delaware limited liability company
(Development Agreement to follow this page)
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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 and 27383
______________________________________________________________________________

DEVELOPMENT AGREEMENT

By and Between

City of Ontario, a California municipal corporation,

and

OTC Owner, LLC
Lot D
a Delaware limited liability company

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DEVELOPMENT AGREEMENT NO. PDA22-033-D
This Development Agreement (hereinafter “Agreement”) is dated as of July _____, 2022, for reference purposes only, and is entered into by and between the City of Ontario, a California municipal corporation (hereinafter “ City”), and OTC Owner, LLC, Lot D, a Delaware limited liability company (together with its successors and assigns, “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 a leasehold interest in the Property pursuant to the Ground Lease; 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 terms and conditions of this Agreement have undergone extensive review by City and the City Council and have been found to be fair, just and reasonable; and WHEREAS, the best interests of the citizens of the City and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, on July ____, 2022, the City Council adopted Ordinance No. _____________ approving this Agreement, and such ordinance became effective on _____________, 2022; and
WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement. On April 19, 2022, pursuant to Resolution No. 2022-034, t he City Council reviewed and adopted an Addendum to the Ontario Center Specific Plan Environmental Impact Report (State Clearing House No. 89041009) dated March 2022 under City’s File No. PSPA21 -001 (the “EIR Addendum ”). The proposed Project is consistent with the EIR Addendum and no further environmental review is required; and WHEREAS, on April 19 , 2022, pursuant to Resolution No. 2022- 035, the City Council approved the Piemonte Overlay at the Ontario Center Specific Plan Amendment - File No.

PSPA21-001 (the “Specific Plan Amendment”); and
WHEREAS, this Agreement and the P roject are consistent with the City ’s Comprehensive General Plan and any specific plan applicable thereto; and 388
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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, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended.

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 suffi ciency 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 “Approval Date” means ___________, 2022 the hearing date on which the City Council adopted the ordinance approving this Agreement.

1.1.3 “Certificate” shall have the meaning set forth in Section 6.4.

1.1.4 “Certificate of Performance” shall have the meaning set forth in Section 2.5.3.

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

1.1.6 “City Council” means the City Council of the City of Ontario.

1.1.7 “City Manager” means City’s City Manager or his or her designee.

1.1.8 “City Parties” shall have the meaning set forth in Section 9.2.

1.1.9 “City Response Delay” shall have the meaning set forth in Section 3.3.

1.1.10 “Completion” means the date on which all of the following has occurred (a) the Building Department of the City (in its capacity as the municipal authority) has issue d (i) a temporary certificate of occupancy (or its equivalent) for the residential dwelling units within the Project and (ii) final sign off or its equivalent of the core and shell for the commercial space within the Project (but not the tenant improvement s for such space) and (b) Owner has satisfied the conditions of the Development Approvals to the extent required in connection with the Project (as opposed to conditions required in connection with the development of the other Lots within the Phased Development) other than ongoing conditions that are not required to be satisfied prior to completion of the Project.
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1.1.11 “Deferred DIF” shall have the meaning set forth in Section 4.2.2.

1.1.12 “Deferred DIF Repayment Date” shall have the meaning set forth in Section

4.2.2. 1.1.13 “Development Approval ” or “ Development Approvals ” means all permits and other entitlements for use subject to approval or issuance by City in connection with development of the Property whether Existing Development Approvals or Subsequent Development Approvals, including, but not limited to, the following:
(a) Amendment to the Piemonte Overlay at Ontario Center Specific Plan -File No.

PSPA21-001;
(b) Development Plan Entitlement – File No. PDEV22-014; (c) EIR Addendum;
(d) Development Agreement - File No. PDA22-003-D; and
(e) Amendment to the Piemonte Overlay Sign Program – File No. PSGP22-002.

1.1.14 “Development Impact Fee ” means a monetary exaction, other than a tax or special assessment , whether characterized as a fee, exaction, charge, assessment 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 projec t for the purpose of defraying all or a portion of the cost of public facilities related to the development proje ct. The rates as of the Approval Date for the Development Impact Fees that may apply to the Project are shown on Exhibit “C” attached hereto.

1.1.15 “Effective Date” means the date on which both of the following are true : (a) the ordinance approving this Agreement goes into effect ; and ( b) the Effective Date of the Ground Lease has occurred. Promptly after the Effective Date occurs, the parties shall ex ecute a joint memorandum or side letter confirming the final date of the Effective Date and, thereafter, the Effective Date shall be deemed to be the date agreed upon by the parties in such memorandum or side letter.

1.1.16 “Existing Development Approvals ” means all Development Approvals approved or issued on or prior to the Effective Date. Existing Development Approva ls are listed in the definition of “Development Approvals” above and all other Development Approvals which are a matter of public record on the Effective Date.

1.1.17 “Existing Land Use Regulations” means all Land Use Regulations in effect on the Approval Date, as modified by the Development Approvals.

1.1.18 “Final Non- Appealable Date” means the date Existing Development Approvals are final and non-appealable as set forth in the City Development Code and any applicable Laws and (ii) the applicable statute of limitation s has expired under the California Environmental 390
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Quality Act (Public Resources Code §21000 et seq.) and implementing Guidelines for CEQA (14 Cal. Code Regs. §15000 et seq.) with respect to the Addendum, in each case without the filing of any third party cha llenge, appeal, or lawsuit or, if filed, such challenge, appeal, or lawsuit has been resolved in a manner satisfactory to Owner . Promptly after the Final Non- Appealable Date occurs, the parties shall execute a joint memorandum or side letter confirming th e final date of the Final Non-Appealable Date and, thereafter, the Final Non -Appealable Date shall be deemed to be the date agreed upon by the parties in such memorandum or side letter.

1.1.19 “Force Majeure Event(s)” shall have the meaning set forth in Section 11.11.

1.1.20 “General Plan ” means the City’s Comprehensive General Plan adopted on January 27, 2010, by Resolution No. 2010-006, as may be amended as of the Approval Date.

1.1.21 “Ground Lease ” means that certain Ground Lease by and between City and Owner dated on or about the Approval Date pertaining to the Property, as the same may be amended, modified, or supplemented from time to time.

1.1.22 “Land Use Reg ulations” means all ordinances, resolutions, codes, rules, regulations, and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the develop ment of the Property . “Land Use Regulations” does not include any City ordinance, resolution, code, rule, regulat ion or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; or (e) the exercise of the power of eminent domain.

1.1.23 “Lender Proposed Amendment” shall have the meaning set forth in Section 10.

1.1.24 “Lot” or “Lots ” shall mean Lot A, B, C, or D, as the context m ay require, as shown on Exhibit “B” to this Agreement.

1.1.25 “Mortgagee” means any lender under any mortgage, deed of trust , or other security device securing financing with respect to the Owner’s then-current interest in the Property, and their successors and assigns.

1.1.26 “Non-Deferrable Fees” shall have the meaning set forth in Section 4.2.2. 391
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1.1.27 “Owner” means the person or entity defined as such in the intr oductory paragraph of this Agreement and their permitted successors in interest to all or any part of the Property.

1.1.28 “Owner Parties” shall have the meaning set forth in Section 9.3.2.

1.1.29 “Phased Development ” means the phased development and construction contemplated by Owner on the Property and each of the other “ Owners” under the Related Development Agreements (as defined below) on Lots A, B, and C. The projects to be developed and constructed in the Phased Development include the Project and projects on Lots A, B, and C as follows:

Lot A - Development Plan Entitlement – File No. PDEV22-014; Lot B - Development Plan Entitlement – File No. PDEV22-014; and Lot C - Development Plan Entitlement – File No. PDEV22-014.

Lots A, B, and C are each also currently subject to a ground lease between the City and ground lease tenant of the applicable Lot which is being entered into c oncurrently with the Ground Lease in form and content similar to the Ground Lease. The City is also concurrently entering into a statutory de velopment agreement with each of the ground lease tenants for Lots A, B, and C in form and content similar to this Agreement (the “ Related Development Agreements”). It is currently contemplated that the Project will be developed and constructed as part of the Phased Development of the Property and Lots A, B, and C currently comprised of the following development as shown on Table 1 below:

Table 1:

Maximum Development Density (Units) and Intensity
(Based on Piemonte Overlay at the Ontario Center Specific Plan) DA File No’s. Approx.

Acres
Lot Subarea
Area
Dwelling
Units
Commercial
(Square Feet)
PDA22-003-A 4.83 A 16 384 25,256
PDA22-003-B 1.69 B 17 112 20,802
PDA22-003-C 1.93 C 8 94 11,047
PDA22-003-D 2.04 D 11 104 14,095
Total 10.49 694 71,200
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1.1.30 “Project” means the proposed development and construction on the Property (Lot D) of up to 14,095 square feet of commercial /office/ retail uses and 104 multi-family residential dwelling units , all as consistent with File No. PDEV22 -014 (as the same may be modified by Owner from time to time in accordance with the Existing Development Approvals). The commercial/office/retail uses shall be those permitted or conditionally permitted within Section

3.2 Allowed Uses of The Piemonte at Ontario Center Specific Plan.

1.1.31 “Property” means the real property described on Exhibit “A” and shown on Exhibit “B” to this Agreement. The Property is referred to as Lot D on Exhibit B. The Property constitutes one parcel of the Phased Development. Lots A , B, and C comprise the remaining parcels of the planned Phased Development.

1.1.32 “Protected Lot” shall have the meaning set forth in Section 8.2.3.

1.1.33 “Related Development Agreement ” shall have the meaning set forth in the definition of “Phased Development” above.

1.1.34 “Reservations of Authority” m eans the rights and authority excepted from the assurances and rights provided to Owner under this Agreement and reserved to City under Section 3.6 of this Agreement.

1.1.35 “Security Instrument” shall have the meaning set forth in Section 10.

1.1.36 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “ Piemonte O verlay at the Ontario Center Specific Plan ,” as amended by the Specific Plan Amendment.

1.1.37 “Subsequent Development Approvals ” means all Development A pprovals obtained subsequent to the Approval Date in connection with development of the Property.

1.1.38 “Subsequent Land Use Regulations ” means any Land Use Regulations adopted and effective after the Approval Date.

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 sh owing location of Property and the other Lots within the Phased Development
Exhibit “C” Development Impact Fees as of the Approval Date

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 if and to the extent commenced shall be carried out in accordance with the terms of this Agreement. 393
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2.2 Ownership of Property. Owner represents and covenants that it is the owner of a leasehold interest in the Property or a portion thereof.

2.3 Term. 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:
(a) Owner provides at least 180 days written notice to City prior to expiration of the initial term;
(b) Owner is not then in uncured default of this Agreement (after notice and the expiration of any applicable cure periods); and
(c) if less than three (3) of the Lots in the Phased Development have achieved Completion, s uch extension must be approved by the City Manager in his or her reasonable discretion.

For the avoidance of doubt, any time limits that may otherwise apply to the Development Approvals absent this Development Agreement (including without limitation, any of the time limits imposed on approvals pursuant to Section 2.02.025A of the Ontario Development Code or any other the Land Use Regulations) shall not govern the D evelopment Approvals or this Agreement and the term set forth in this Section 2.3 shall control.

2.4 Assignment.

2.4.1 Right to Assign. Owner shall have the right to sell, transfer , or assign its interest in the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Sec tion 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) Any such sale, transfer, or assignment is done in compliance with the Ground Lease if such Ground Lease is then in effect;
(b) 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 al l or substantially all of Owner’s leasehold or fee interest (as applicable) in the Property; (c) Prior to any such sale, transfer , or assignment, Owner shall notify City ’s City 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 394
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respect to the portion of the Property so sold, tr ansferred, or assigned; and (2) the payment of the applicable processing charge to cover the City ’s review and consideration of such sale, transfe r, or assignment; and
(d) 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 ex ecute the agreement requir ed by Paragraph (c ) 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 a greement 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 S ubsection 2.4.1. Notwithstanding any contrary provision of this Agreement, the Owner of the Property shall not have any liability hereunder with respect to any other Lot and a default by the Owner of one Lot shall not impact the rights and obligations of the Owner of any other Lot.

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 all of the following conditions:
(a) such transferring owner no longer has a legal or equitable interest in the portion of the Property sold, transferred, or assigned;
(b) such transferring owner is not then in default under this Agreement (after notice and the expiration o f any applicable cure periods) , in which case such transferring owner shall remain liable for such default but not any future defaults by the assi gnee after the date of the transfer; and
(c) such transferring owner has provided City with the notice and executed agreement required under Paragraph (c) of Subsection 2.4.1 above.

2.4.3 Subsequent Assignment . Any subsequent sale, transfer , or assignment after an initial sale, tr ansfer, or assignment shall be made only in accordance with and subject to the terms and conditions of this Section 2.4.

2.4.4 For the avoidance of doubt, this Section 2.4 does not apply to assignments or transfers of this Agreeme nt to Mortgagees or their initial transferees after a foreclosure, deed in lieu, or similar action permitted u nder the mortgage, deed of trust, or other security device securing financing with respect to the Owner’s interest in the Property.

2.5 Amendment or Cancellation of Agreement; Operating Memoranda.

2.5.1 Amendment or Cancellation . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 395
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65868. Any amendment of this Agreement, which amendment has been reques ted by Owner , shall be considered by the City only upon the payment of the applicabl e processing charge. The City hereby agrees to grant priority processing status to any request(s) to amend this Agreement made by Owner. 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 mutua l consent of the parties or their successors in interest 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 canc el this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding t he 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.

2.5.2 Operating Memoranda.

The provisions of this Agreement require a close degree o f cooperation between the City and Owner and development of the Project hereunder ma y demonstrate that refinements and clarifications are appropriate with respect to the details of performance of the City and Owner. If and when, from time to time, during the term of this Agreement, the City and Owner agree that such clarifications are necessary or appropriate, the City and Owner shall effectuate such clarifications through operating memoranda approved by the City and Owner, which, after execution, shall be attached hereto as addenda and become a part hereof, and may be further clarified from time to time as necessary with future approval by the City and Owner. No such operating memoranda shall constitute an amendment to this Agreement requiring public notice or hearing. The City Manager shall be authorized to make the determination on be half of the City whether a requested clarification may be effectuated pursuant to this Section 2.5.2 or whether the requested clarification is of such a character to consti tute an amendment hereof. The City Manager shall be authorized to execute any opera ting memoranda hereunder on behalf of the City without further Planning Commission or City Council action.

2.5.3 Certificate of Performance.

Upon Completion of the Projec t or upon the earlier revocation or termination of this Agreement , the City shall pr ovide Owner, upon Owner’s request, with a statement (“Certificate of Performance ”) evidencing such completion, revocation, or termination of this Agreement, and the releas e of Owner from further obligations hereunder with respect to the Property except wi th respect to the obligations which expressly survive such termination pursuant to Sections 3.9 (Rent Control), 4.2.2 (Development Impact Fees), 9 (Third Party Litigation) and 11.22 (Attorneys’ Fees) . The Certificate of Performance shall be signed by the appropriate agents of Owner and the City and shall be recorded with the County Recorder . Such Certificate of Performance is not a notice of compl etion as referred to in Ca lifornia Civil Code Section 8182.
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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 Agreem ent as set forth in Section 2.3; or
(b) Completion of the Project to be developed and constructed on the Property in accordance with the terms of this Agreement.

Termination of this Agreement shall not constitute termination of any other land use entitlements approve d for the Property. Upon the termination of this Agreement, no party shall have any further right or obligati on hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performa nce of the provisions of this Agreement which has occurred prior to such termination or with respect to any right and/or 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 c onstruction has not yet begun shall be refunded to Owner by City to the extent payment has been received.

2.7 Notices.
(a) As used in this Agreeme nt, “ 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 a nd 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 env elope as either registered or certified mail with return receipt requested, and postage and postal charges pre paid, and addressed to the recipient named below.

All notices shall be addressed as follows:
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If to City:

Scott Ochoa, City Manager
City of Ontario
303 East “B” Street
Ontario, CA 91764
If to Owner:

OTC Lot D Owner, LLC
c/o Adept Urban
388 Cordova Street, #280
Pasadena, CA 91101
Attention: Patrick Chraghchian; Robert
Montano
Email:[email protected];
[email protected]

with a copy to:

Ruben Duran, City Attorney
Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761

with a copy to:

Munger, Tolles & Olson LLP
350 S. Grand Avenue, 50th Floor
Los Angeles, CA 90071
Attention: Misty M. Sanford, Esq.

Email: [email protected]

(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whe ther a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of cha nge shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Development of the Project; Rights to Develop.

3.1.1 Development of the Project . In consideration of the premises, purpose s, and intentions set forth in this Agreement , and in consideration of the a ssurances for development of the Project pursuant to this Agreement , Owner agrees to develop the Project in accordance with: (i) the terms and conditions of this Agreement; (ii) the terms and conditions established in the Development Approvals; and (iii ) the Existing Land Use Regulations . Owner further agrees that the use, density and intensity, maximum height and size of structures and provisions for the Property reservation and dedication of land for public purposes related to t he Property shall be limited to those uses permitted by the Existing Land Use Regulations . The Project shall be developed in accordance with the Development Approvals . The Project shall be constructed in compliance with all applicable building codes and st andards, as such may be modified from time to time.

3.1.2 Rights to Develop. Subject to the terms of this Agr eement including the Reservations of Authority, Owner shall have a vested right to develop the Project in accordance with the Existing Land Use Re gulations, subject to the terms and con ditions of this Agreement and the conditions established in the Development Approvals . The Project shall remain subject to all Development Approvals required to complete the Project. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the 398
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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 Existing Land Use Regulations.

3.2 Effect of Agreement on Land Use Regulations . Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations, and official policies governing permitted uses of the Proper ty, the density and intens ity of use of the Property, the maximum height and size of proposed buildings, and t he design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection wi th any Subsequent Development Approval, City shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discreti on 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 Timing of Development. The parties acknowledge that Owner cannot at this time predict when or the rate at which the Phased Development will be developed. Such decisions depend upon numerous factors which are not within the control of Owner, such as market orientation and demand, interest rates, absorption, completion, and other similar fac tors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to pre vail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop (without the obligation) the Property in such order and at such rate an d at such times as Owner deems appropriate within the exercise of its sole and subjective business judgment during the term of this Agreement. Notwithstanding the foregoing, s ubject to (a) Force Majeure Events , (b) up to three one -year extensions of time (provided, however, that ( i) only the first one -year extension may be requested by Owner unilaterally and ther eafter such extensions must be approved by the City Manager and (ii) such extensions shall not apply to the first milestone (i.e., submission of t he building application) f or the first of the Lot s of the Phased Development to be developed) and (c) any exte nsions of entitlements or permits granted by any governmental authority on a statewide, citywide or countywide basis , Owner shall achieve the foll owing milestones in accord ance with the following schedule:

Event Date

1. Submission by Owner of building perm it
application to the City for the Project

On or before one hundred eighty
(180) days following the date a final
Certificate of Occupancy is issu ed
with respect to the bui lding(s) of the
immediately prior phase.

2. Commencement of Construction of the
Project

On or before two (2) years following
the date a final Certificate of
Occupancy is issued with respect to
the building(s) of the immediately
prior phase; provided, howe ver
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Commencement of Construction shall
occur within 6 months of the
Commencement of Construction of
Lot C.

In order to achieve this milestone,
City agrees to complete its review of
(a) Owner’s initial plan check
submission within twenty-one (21)
days afte r receipt of such initial
submission by City (provided,
however, prior to such submi ssion
Owner and the City shall meet to
review the proposed application), and
(b) any additional submissions
required to obtain the required
permits for the project within
fourteen (14) days following receipt
of such additional submissions by
City. There s hall be a day -for-day
extension of this Commencement of
Construction milestone if the City
fails to timely respond to such
submissions within the time periods
set forth ab ove (each, a “ City
Response Delay”).

3.4 Requirement for Public Infrastructure Improvements. Owner shall comply with any conditions of the Development Approvals with respect to providing public infrastructure improvements or facilities, if any , to the extent required in connection with the Project (as opposed to the other Lots within the Phased Development).

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will requ ire Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable i n the Existing Development Approvals. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, O wner shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority. Unless otherwise required by law, as determined in City’s reasonable discretion, a change t o the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, 400
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(b) Increase the density or intensity of use of the Property as a whole; (other than in de minimis amounts); or,
(c) Increase the maximum height and size of permitted buildings (other than in de minimis amounts); or,
(d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.

3.6.1 Limitations, Reservations and Exceptions . Notwithstanding any other provision of this Agreement, the 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 its actual costs of processing applications for, or monitoring compliance with , any development approvals granted for the performance of any conditions imposed on the Project, unless otherwise waived by the City in writing;

(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 local amendments 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 or Existing Land Use Regulations 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 ; and are generally applicable on a citywide basis (except in the event of natural disasters as found by the City Council such as floods, earthquakes, pandemics and similar acts of God);

(e) Reserved;

(f) Regulations to which the Owner consents in writing. 401
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3.6.2 Subsequent Development Approvals . This Agreement shall not prevent City, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Approvals and the Existing Land Use Regulations, nor shall this Agreement prevent City from denying or conditionally approving any Subsequent Development Approval on the basis of the Existi ng Land Use Regulations or any Subsequent Land Use Regulation not in conflict with t he Development Approvals and the Existing Land Use Regulations.

3.6.3 Modification or Suspension by State or Federal Law . In the event that State or Federal laws or regulations, enacted after the Approval Date , prevent or preclude compliance with one or m ore of the provisions of this Agreement, such provisions of this Agreement shall be modified or suspended as may be necessary to comply with such State or Federal laws or r egulations, 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 pr ovisions impractical to en force or comply with as determined by Owner . In the event Owner alleges that such S tate 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 co st and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section

3.6.3 shall impose on City any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

3.6.4 Intent. The parties acknowledge and agree that City is restricted in its authority to limit its police power by contract and that the foregoing limitations, reservations, and exceptions are intended to reserve to City all of its police power which cannot be so limited. This Agreement shall be construed, contrary to its stated terms if necessary, to reserve to City all such power and authority which cannot be restricted by contract.

3.7 Public Works; Utilities . If Owner is required by any Development Approval to construct any public works facilities which will be dedic ated to City or any other public agency upon completion, and if required by applicable laws to do so, Owner shall perform such work to the construction standards that would be applicable 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.

3.8 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of City possess authority to regulate aspects of the development of the Prop erty separately from or jo intly with City and this Agreement does not limit the authority of such other public agencies. City agrees to cooperate fully, at no material out-of-pocket cost to City, with Owner in obtaining any required permits or compliance with the 402
49114321.13

regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations, or policies of the City.

3.9 Rent Control. Notwithstanding anything to the contrary in this Agreement, City agrees that, to the extent permitted by applicable la w, City shall not apply any rent control or other renter protections or other moratoria or interim control ordinance against the Property or the Project. The foregoing covenant shall survive the expiration of this Agreement indef initely and shall be in effect unless this Agreement is terminated for any reason other t han a termination due to the Completion of the Project.

4. PUBLIC BENEFITS.

4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public ne eds that will not be fully met by the Development Approvals and the Existing Land Us e Regulations and further acknowledge and agree that this Agreement confers substantial private benefits on Owner that should be balanced by comme nsurate 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.
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4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by Owner . The amounts for Development Impact Fees established or imposed by the City to be paid by Owner shall be the amounts that are in effect as of the A pproval Date, which are sh own on Exhibit “C” attached hereto, and Development Impact Fees established or imposed by other public agencies to be paid by Owner shall be the amounts that are in effect at the time such fees are due and payable during the devel opment process. N othing contained in this Agreement shall affect the ability of other public agencies that ar e not controlled by City to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, eve n though such Development Impact Fees may be collected by City .

Notwithstanding the foregoing, the amounts im posed by the City to be paid by Owner for the following Development Impact Fees may be those in effect at the time such fees are due and payable ( subject to the right to de ferment set forth in Section 4.2.2 below) , so long as such amounts do not increase by more than five percent (5%) over the amount of such rates in effect as of the Approval Date: processing fees and charges imposed by City to cove r the estimated actual cos ts 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; buil ding 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 Reorganization Act of 2000, Division 3 (c ommencing with Section 56000) of Title 5 of the Government Code; the processing of m aps 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 Governm ent Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Governme nt 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 suc h codes may be amended or superseded, including by amendment or replacement.

4.2.2 Time of Payment.
(a) Owner shall have the right to elect (but is not obligated) to amortize the payment of up to fifty percent (50%) of the total amount of Development Impact Fees due and payable for the Project ( the amount so elected, the “Deferred DIFs”) over a period of thirty (30) years commencing from the Deferred DIF Repayment Date at an annual 3 percent (3%) simple interest rate. As used herein, “ Deferred DIF Repayment Date” means the date of issuance of a temporary or other certificate of occupancy for the residential co mponent of the Project. The parties understand and agree that the Development Impact Fees established or imposed by other public agencies that are not controlled by City even if such Development Impact Fees may be collected by City (including without limitation , if applicable, the IEUA Sewer Connection Fee, Ontario -Montclair School District (K -12) Fees , Cucamonga School District and Chaffey Joint Union High School Fees ) (collectively, the “ Non-Deferrable Fees”) must be paid when and as required in their standard course and schedule and may not be deferred hereunder; provided, however, the amount of such Non- Deferrable Fees may be included in the calculation of the total amount of Development Impact Fees due and payable for the Proje ct for 404
49114321.13

purposes of calcula ting the fifty percent (50%) amount that Owner may elect to include as Deferred DIFs.
(b) Owner agrees t hat, commencing upon the Deferred DIF Repayment Date, Owner shall pay to the City, on the 1 st day of the next following month and each and every succes sive month for three hundred sixty (360) consecutive months, an amount equal to the amortized principal and interest of the actual amount of the Deferred DIFs amortized over thirty (30) years at a n annual 3 percent (3%) simple interest rate. By way of example only, if the Deferred DIFs equal $4,5000,000, the monthly payment to be made t o the City would be $18,972. The entire unpaid principal balance of the amortized Deferred DIFs and any accrued but unpaid interest shall be immediately due and payable to the City upon any of the following events: (1 ) the termination o f this Agreement other than a termination due to the Completion of the Project ; ( 2) any uncured default by Owner with regard to repayment of the amortized Deferred DIFs to the City (if such amounts have not been paid to the City within five (5) business days of Owner’s rece ipt of written notice from the City); or (3) any sale, transfer or assignment of all or substantially all of the Owner’s leasehold or fee interest (as applicable) in the Pr operty that is not approved by the City in advance (which such approval shall not be unreasonably withheld, conditioned or delayed) . Any monthly payment or portion thereof not paid to the City as and when due under the terms of this Agreement shall accrue interest from the date on which such payment was due at the rate of ten percent (10%), and if not paid within the five (5) business day cure period described above, City may file a lien against the Property for such delinquent am ounts including any accrue d and unpaid interest . All payments under this Subsection will be applied first to penalties and late fees, then to interest, then to reduce the principal amount owed. The Deferred DIFs and any accrued but unpaid interest may be pre-paid to the City at any time without any pre-payment penalty. (c) The Deferred DIF payment obligation shall be a covenant running with the land and shall survive the expiration or early termination of this Agreement indefinitely until the Deferred DIFs are paid in full in accordance with this Agreement. (d) Any Development Impact Fees that are not a Deferred DIF shall be paid when and as required in their standard course and schedule.

4.3 Reserved.

4.4 Reserved.

4.5 Schools Obligations . Owner shall satisfy its school o bligations with the applicable school district by paying school impact fees. Written evidence of approval by the applicable school district that Owner has met its school obligations may be required by the City as the condition to the issuance by the City of any building permits for the Project.

4.6 Reserved.

4.7 Reserved.

4.8 Reserved.
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4.9 Maintenance of Open Space. Owner shall provide for ongoing maintenance of all park, common areas , and open space areas within the Project as may be set forth i n the Development Approvals.

4.10 Intentionally Omitted.

4.11 Compliance with Public Benefits Requirements . In the event Owner fails or refuses to comply with any condition referenced in Section 4.1 through 4.9, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, Owner shall be deem ed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies permitted under this Agreement , 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. [RESERVED]

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Init iation 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 in accordance with Section 65865.1 of the Califo rnia Government Code . Upon completion of the City’s review, 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. Issua nce of a notice of continuing compliance may be issued by the City Manager or his /her designee. Owner shall be responsible for paying any processing charge in connection with each such annual review, if any, provided that such cha rge shall be generally con sistent with the cost charged for annual reviews for other development agreements to which the City is a party.

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 the City Council.

6.1.3 Notice of Special Revie w. The City Manager shall begin the special review proceeding by giving notice that the City intends to undertake a special review of this Agreement to the Owner. Such notice shall be given at least ten (10) days in advance of t he time at which the matter will be considered by the Planning Commission. The cost of any such special review shall be borne by the City, unless such a special review demonstrates that Owner is not 406
49114321.13

acting in good- faith compliance with the provisions of this Agreement, in which cas e Owner shall reimburse the City for all costs incurred by the City in connection with such special review.

6.1.4 Public Hearing . The Planning Commission shall conduct a hearing at which the Owner must demonstrate good faith com pliance 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 peri od 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 fa ith with the terms and con ditions of this 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 conditions of this Agreement during the period under review, the Planning Commission shall specify in writing the respects in which Owner has failed to so comply. The City shall provide Owner with written notice of such noncompl iance, together with a wri tten specification of the reasons therefor. Such written notice shall also specify a reasonable time for Owner to cure such non- compliance, which time shall be not less than thirty (30) days after Owner’s receipt of such notice.

(c) The Owner may appeal a determination pursuant to paragraph (b) in accordance with the City’s rule for consideration of appeals in zoning matters generally.

6.2 Proceedings Upon Termination. If, upon a finding under Section 6.1.6(b), the City determines to proceed with 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 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 Termination. At the time and place set for the hearing on 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 substantia l evidence in the administ rative record, that the Owner has not complied in good faith with the 407
49114321.13

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 consider s necessary 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 Rev iew, 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 Re view and based upon the information known or made known to the Planning Director and City Council that (1) thi s 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 i ssued 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 trans ferees 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 fr om or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General; Waiver of Monetary Damages . It is acknowledged by the parties that, subject to and without limiting the Development Impact F ees in Section 4.2, indemnities in Sections 9.2, 9.3 and 9.4 below and the award of attorneys’ fees under Sect ion

11.22 below , neither party would have entered into this Agreement if it were to be liable in monetary damages under this Agreement , or with re spect to this Agreement or the application thereof. The parties agree and recognize that, as a practical matter, it may not be possible to determine an amount of monetary damages that would adequately compensate Owner for its investment of time and financial resources in planning t o arrive at the kind, location, intensity of use, and improvements for the Project, nor to calculate the consideration the City would require to enter into this Agreement to justify the exposure. Therefore , the parties agree that each of the parties may pursue any remedy at law or equity available for any breach of any provision of this Agreement, except that neither party shall be liable in monetary damages to the other party, or to any successor in interest of such other party, or to any other person, and each party covenants not to sue for monetary damages or claim any monetary damages:

8.1.1 For any breach of this Agreement or for any cause of action which arises out of this Agreement (other than in connection with Development Impact Fees in Section 4. 2, indemnities in Sections 9.2, 9.3 and 9.4 below and the award of attorneys’ fees under Section

11.22 below); or

8.1.2 For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
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8.1.3 Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement.

8.1.4 The parties understand and agree, however, that nothing in this Section 8.1 shall prohibit, re strict or otherwise affect the rights of a party to seek monetary damages as a result of any default by the other party under any other agreement entered into by the parties with respect to the Property and the Project, including with out limitation the Gro und Lease, if and to the extent such other agreements allow for monetary damages. N o part of this Agreement shall be deemed to abrogate or limit any immunities or defenses either party may otherwise have with respect to claims for monetary damages.

8.2 Default by Owner. In the event that Owner does not perform its obligations under the Agreement in a timely manner, subject to the limitations in Section 8.1, the City shall have all rights and remedies provided herein which shall i nclude ( a) the right to compel specific performance of the obligations of Owner under this Agreement or ( b) te rmination of this Agreement, provided that the City has first complied with the procedures set forth in this Section

8.2 and in Section 8.5 below. If City elects to proceed under clause ( b) with termination of this Agreement, the following shall apply:

8.2.1 If after the applicable cure period has elapsed, the City Manager finds and determines that Owner remains in default, the City Manager shall ma ke a report to the Planning Commission and then set a public hearing before the Planning Commission in accordance with the notice and hearing requirements of Government Code Sections 65867 and 65868. If, after public hearing, the Planning Commission finds and determines, on the ba sis of substantial evidence, that Owner has not cured the applicable default pursuant to this Section, and that the City should terminate this Agreement, Owner shall be entitled to appeal that finding and determination to the City Council in accordance with the procedure in Section 6.1.6(c) above . In the event of a finding and determination that all defaults are cured, there shall be no appeal by any person or entity, and

8.2.2 City may terminate this Agreement after such final de termination of the City Co uncil or, where no appeal is taken, after the expiration of the appeal period in accordance with the procedure described in Section 6.1.6(c) above , relating to the defaulting party's rights and obligations.

8.2.3 City’s Limite d Cross Termination Right . If City terminates this Agreement in accordance with the procedures set forth here in as a result of a failure of Owner to achieve any of the milestones required pursuant to Section 3.3 above, City shall have the right to simultaneously terminate the Related Development Agreement(s) affecting the Lot(s) within the Phased Development for which none of the milestones under Section 3.3 of the applicable Related Development Agreement(s) have been achieved and for which a standard cons truction loan from an unre lated third party (“ Loan”) has not been executed for the development of such Lot(s). For example, if the owner of any Lot in the Phased Development (including the Property) has executed a Loan for the development of such Lot or a ny of the milestones under Section 3.3 of the applicable Related Development Agreement have been achieved with respect to such Lot (a “Protected Lot ”), then the termination of this Agreement or the Related 409
49114321.13

Development Agreement for any other Lot shall not affect the Related Develop ment Agreement of such Protected Lot and City shall not have any right hereunder to terminate such Related Development Agreement under this Section 8.2.3.

8.3 Default by City. In the event the City defaults under the provisions of this Agreement, subject to the limitations set forth in Section 8.1 above, Owner shall have all rights and remedies provided herein or by applicable law, which shall include compelling the specific performance of the City's obligations under this Agreeme nt, provided that Owner ha s first complied with the procedures in Section 8.5 below.

8.4 Release. Subject to and without li miting the indemnity in Section 9.3 below, except for nondamage remedies, including the remedy of specific performance , each party, for itself, its successor s and assignees, hereby releases the other party, 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, incl uding, 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 li ability or damage, whatsoe ver, upon the City because it entered into this Agreement or because of the terms of this Agreement.

8.5 Notice and Cure . F ailure or delay by either party to perform any term or provision of this Agreement, which is not cured wit hin thirty (30) days after receipt of written notice from the other party, identifying with specificity those obligations of the defaulting party which have not been performed , constitutes a default under this Agreement; provided, however, if such failure or delay cannot reasonably be cured within such thirty (30) day period, no default shall be deemed to have occurred hereunder if the party committing such failure or delay commences cure within such thirty (30) day period and thereafter diligently prosecut es such cure to completion; provided, however t he party who so fails or delays must immediately commence to cu re, correct or remedy such failure or delay, and shall complete such cure, correction or remedy with due diligence but (a) with respect to the City only in no event later t han sixty (60) days after receipt of written notice from the Owner and (b) with respect to Owner only in no event later than one hundred eighty (180) days after receipt of written notice from City . The injured party shall give wri tten notice of default to the party in default specifying the default complained of by the injured party. Fail ure or delay in giving such notice shall not constitute a waiver of any default.

8.6 Ground Lease and Other Agreements Not Affected. This Section 8 shall not be deemed to i mplicate, modify, or affect in any way any provisions in the Ground Lease or any other agreement entered into by the parties with respect to the Property and the Project.

9. THIRD PARTY LITIGATION.

9.1 General Plan Litigation . City has determined that this Agreement is consistent with its General Plan, as such General Plan exists as of th e Approval Date, and that the General Plan meets all requirements of law. 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 Project as the result of a judicial determination that on the Approval Date , or at any time 410
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thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third Party Litigation Concerning Agreement. Subject to and without limiting the indemnity in Section 9.3.2 below, Owner shall defend (with counsel chosen by Owner and approved by City, which such approval shall not be unr easonably withheld, condit ioned or delayed), at its expense, including attorneys’ fees, indemnify, and hold ha rmless City and its officers and employees (collectively, the “ City Parties ”) from any claim, action or proceeding against the City Parties to attack, set aside, void, or a nnul the approval of this Agreement or the approval of any permit granted pursuant t o 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 any of the City Parties fail to coope rate in the defense as finally determined by a court or arbitrator of competent jurisdiction, Owner shall not thereafter be responsible to defend, indemnify, or hold harmless the City Parties.

Nothing in this Section 9 or any other indemnification provis ion included as a condition to any of the Development Approvals shall be construed to mean that Owner or City shall indemnify, hold any of the City Parties or Owner Parties, as applicable, harmless and/or defend any of the City Parties or Owner Parties, as applicable, from any claims arising from (a) as to Sections 9.3.1 and 9.4 only, any of the City Parties’ or Owner Parties’, as applicable, violation of law, or (b) as to all such indemnities other than the indemnity set forth in Section 9.3.2, (i) any of the City Parties’ or Owner Parties’, as applicable, breach of contractual obligations to third parties or (ii) the gross negligence or willful mis conduct of any of the City Parties or Owner Parties, as applicable.

9.3 Indemnity.

9.3.1 Owner. In addition t o the provisions of 9.2 above, subject to and without limiting the indemnity in Section 9.3.2 below, Owner shall defend (with counsel chosen by Owner and approved by City, which such approval shall not be unreasonably withheld, conditioned or delayed), indemnify, and hold harmless the City Parties from and against any and all liabilities, losses, damages, judgments, fines, demands, claims, recoverie s, deficiencies, costs and expenses (including, but not limited to, reasonable attorneys’ fees, disbursements and court costs and all other professional or consultant’s expenses) , based or asserted upon any act or omission of Owner or its officers or employees for property damage, bodily injury, or death (Owner’s employees included) arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, and operation the Project. The 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 any of the City Parties fail to cooperate in the defense as finally determined by a court or arbitrator of competent jurisdiction , Owner shall not thereafter be responsi ble to defend, indemnify, or hold harmless the City Parties.

9.3.2 City. City agrees to indemnify, defend (with counsel chosen by City and approved by Owner, which such approval shall not be unreasonably withheld, conditioned or delayed), and hold harmless Owner, American General Design, Inc. (dba Adept Development), a 411
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California corporation and Povac Investments, Inc., a California corporation and each of their respective officers and employees (collectively, the “ Owner Parties”) from and against any and all liabilities, losses, damages, judgments, fines, demands, claims, recoveries, deficiencies, costs and expenses (including, but not limited to, r easonable attorneys’ fees, disbursements and court costs and all other professional or consultant’s expenses) arising from any governmental agency stopping or delaying construction or occupancy of the Project after the “Commencement of Construction” (as defined below) as a result o f City’s failure to pay any amounts imposed by the State of California (if any) purs uant to California Government Code Sections 54220 through 54234 in connection with the City’s disposition of the Property to Owner. Owner shall promptly notify City of any such stoppage or delay, and Owner shall cooperate in the defense. If Owner fails to promptly notify Owner of any such stopped or delay, or if any of the Owner Parties fail to cooperate in the defense as finally determined by a cou rt or arbitrator of compet ent jurisdiction, City shall not thereafter be responsible to defend, indemnify, or hold harmless the Owner Parties.

For purposes of this Section 9.3.2, the term “ Commencement of Construction ” shall mean that both of the following have occurred: (a) constr uction of a building has commenced pursuant to and in accordance with a building per mit issued by the City, City -approved final construction drawings, the Existing Land Use Regulations , the Development Approvals, and all applicable laws; and (b) Owner has expended at least $5,000 in labor and materials for such construction.

For purposes of this definition only, “construction” shall mean construction of improvements permanently fixed to the site (e.g., a foundation or similar), inc luding, without limitation , utilities, public or private streets, public or private site improvements, landsca ping or ancillary structures such as block walls, trash enclosures, and any grading, excavation, demolition, grubbing, or other site preparation.

9.4 Environment Assurances. Owner shall defend (with counsel chosen by Owner), at its expense, including attor neys’ fees, indemnify, and hold harmless the City Parties from any liability, based or asserted, upon any act or omission of Owner , its officers, agents, employees, subcontractors, and /or 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 that were not present prior to the date that Owner took possession of the Property, including, but not limited to, soil and groundwater conditions, and Owner shall defend, at its expense, including reasonable attorneys’ fees, the City Parties in any action based or asserted upon any such alleged act or omission. City may in its discretion participate in the defense of any such action.

9.5 Reserved.

9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement for a period of two (2) year s after such termination , except to the extent such indemnification relates to any t hird party claims, in which event such indemnification shall survive until the expiration of any applicable statute of limitations.

10. MORTGAGEE PROTECTION.

The parties he reto agree that this Agreement shall not prevent or limit Owner, in any manner, at Owner’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust , or other security device securing financing 412
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with respect to the Property (“Security Instrument ”). City acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with Owner and representatives of such lenders to negotiate in good faith any such request for interpr etation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification i s consistent with the intent and purposes of this Agreement.

The City further agrees to cooperate in including in this Agreement by suitable amendment from time to time any provision that may reasonably be requested by any propose d Mortgagee for the purpose of allowing such Mortgagee reasonable means to protect or preserve a lien and secu rity interest of its S ecurity Instrument, as well as such other documents containing terms and provisions customarily required by Mortgagees (taking into account the custom ary requirements of their participants, syndication partners or rating agencies) in connection with any such financing (a “Lender Proposed Amendment”). The City agrees to execute and deliver (and to acknowledge, if necessary, for recording purposes) any a greement necessary to effectuate a Lender Proposed Amendment; provided, however, tha t any such Lender Proposed Amendment shall not in any way materially adversely affect any rights of the City under this Agreement. If there is an y conflict between this Ar ticle 10 and any other provisions contained in this Agreement, this Article 10 shall control. 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 Security Instrument on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any Security Instrument , or any part thereof, which Mortgagee, has submitted a request in writing to the City in the manner specified herein for givi ng 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 Owne r. The Mortgagee shall have the right, but not the obligation, to cure the default f or a period of sixty (60) days after Mortgagee receives written notice of non- compliance, or any longer period as is reasonably necessary, not to exceed one hundred eighty (180) days, to remedy such default, provided that Mortgagee shall continuously and diligently pursue the remedy at all times until the default is cured.
(d) Any Mortgagee who takes title of the Property, or any part thereof, purs uant to foreclosure trustee's sale, deed in lieu of foreclosure, lease or sublease termination or otherwise , shall take the Property, or part thereof, subject to the terms of this Agreement , provided that any such Mortgagee, including its affiliate, that takes title to the Property shall be entitled to all of the benefits arising under this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of Owner’s obligations or other affirmative covenants of Owner hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by Owner is a condition precedent to the performance of a covenant by City , the performance thereof shall 413
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continue to be a condition precedent to City ’s performance hereunder, and further provided that any sale, transfer , or assignment after the initial sale, transfer, or assignment by any Mortgagee shall be subject to the provisions of Section 2.4 of this Agreement. (e) If any Mortgagee is prohibited from commencing or prosecuting foreclosure or other appropriate proceedings in the nature of foreclosure by any process or injunction issued by any court or by reason of any action by any court having jurisdiction of any bankruptcy or insolvency proceedings involving Owner , the times specified in Section clause (c) above, shall be extended for the period of the prohibition, except that any such extension shall not extend the term of this Agreement.
(f) If this Agreement is terminated by reason of ( i) any default or ( ii) as a result of a bankruptcy proceeding, this Agreement is disaffirmed by a receiver, liquidator, or trustee for Owner or its property, the City, if requested by any Mortgagee , shall negotiate in good faith with such Mortgagee for a new development agreement for the Project as to such portion of the Property with the most senior Mortgagee requesting such new agreement. This Agreement does not require any Mortgagee or the City to enter into a new development agreement pursuant to this clause (f).
(g) The City shall, at any time and wit hin thirty (30) days following the written request of a Mortgagee, but not more often than annually, certify in writing to such Mortgagee that (a) this Agreement is in full force and effect, (b) this Agreement has not been amended or modified or, if so ame nded or modified, identifying the amendments and modifications, and (c) to the actual knowledge of City with no duty to investigate, Owner is not in default in the performance of its obligations under this Agreement or, if in default, to describe therein t he nature and extent of any such default. Any such estoppel certificate shall be administratively issued by the City Manager or his/her representative or designee.

11. MISCELLANEOUS PROVISIONS.

11.1 Recordation of Agreement . This Agreement and any amendme nt 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 r equired 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 this Agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder. A failure to record the Agreement in a timely fashion shall not impact its effectivene ss to the extent permitted by applicable law.

11.2 Entire Agreement . This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, unde rtakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be a dmissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 414
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11.3 Severability. 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 remai ning provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, i n the event the provision regarding the payment of Deferred DIFs set forth in Section 4 .2.2 of this Agreement is determined to be invalid, void or unenforceable, the parties shall enter into a separate written a greement for the repayment of such Deferred D IFs consistent with Sectio n

4.2.2. 11.4 Interpretation and Governing Law . This Agreement and any dispute arisi ng hereunder shall be governed and interpreted in accordance with the laws of the State of California. This Agreement shall be construed as a whol e according to its fair la nguage and common meaning to achieve the objectives and purposes of the parties here to, 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.

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

11.7 Joint and Several Obligations. If at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner , all obligations of s uch owners under this Agreement shall be joint and several, and the default of any s uch owner shall be the default of all such owners.

11.8 Time of Essence. Time is of the essence in the performance of the provisions of this Agreement as to which time is an element.

11.9 Waiver. Failure by a party to insist upon the strict performance of any of the provisions of this Agreement by the other party, or the failure by a party to exercise its rights upon the default of the other party, shall not constitute a waiver of such party’s right to insist and demand strict compliance by the other party with the terms of this Agreement thereafter.

11.10 No Third Party Beneficiaries . This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns , except that the Owner Parties and City Parties are third party beneficiaries of the indemnities in Section 9 . No other person shall have any right of action based upon any provision of this Agreement.

11.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performan ce of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, insurrection, riots, civil unrest, acts of terrorism or similar hostilities, strikes , boycotts, lock- outs, and other labor difficul ties bey ond the party’s control (including the party’s employment force), inability to procure services, labor or materials not related to the price ther eof, failure of electric po wer, governmental actions, governmental laws, regulations or restrictions , third par ty litigation or administrative proceedings , actual or 415
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threatened public health emergency (including epidemic, pandemic, famine, disease, plague, quarantine, and other publ ic health risk), governmental edicts, actions, declarations or quarantines by a gove rnmental entity or health organization (including any shelter -in-place orders, stay at home orders or any restrictions on travel related thereto t hat preclude Owner , its agents, contractors or its employees from accessing the Property , national or regional emergency), declaration of a state or national emergency, casualties, weather that could not have reasonably been anticipated, changes in the Law s which would prevent the Property from being developed or operated in accordance with this Agreement , or othe r reasons beyond the reasonable control of the party (individually a “ Force Majeure Event ” or collectively, “Force Majeure Events”). If any such e vents shall occur, the ter m of this Agreement and the time for performance by either party of any of its obligations hereunder shall be automatically extended for the period of time that such events prevented such performance, provided that the extensions of the term of this Agreem ent solely as a result of one or more Force Majeure Events shall not exceed a period of more than five (5) years in the aggregate.

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

11.13 Successors in Interest ; Covenants Running with the Land. The burdens of this Agreement shall be binding upon, and the benefit s of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain fr om doing some act hereunder with regard to development of the Property: (a) is for t he 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 ea ch party and each successor in interest during ownership of the Property or any portion thereof. In any event, no owner or tenant of an individual completed residential unit within the Project shall have any rights under this Agreement.

11.14 Counterparts. This Agreement may be exe cuted 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 Jurisdiction and Venue . Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of Calif ornia, and the parties her eto waive all provisions of law providing for the filing, removal or change of venue to any other court.

11.16 Project as a Private Undertaking . It is specifically understood and agreed by and between the parties hereto that the d evelopment 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 partners hip, joint venture or other association of any kind is formed by this Agreement. The only relationship between City and Owner is that of a government entity regulating the development of private property and the owner of such property. 416
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