Ontario City Council
July 19, 2022

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, the 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 Project are consistent with the City’s Comprehensive General Plan and any specific plan applicable thereto; and 560
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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 sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “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.
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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-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 project. 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 Approvals 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 562
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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 challenge, 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 Regulations” means all ordinances, resolutions, codes, rules, regulations, and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any City ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(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 may 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. 563
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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 Lots 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 concurrently 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 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 and depicted on Exhibit “A” 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 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” means 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 Overlay at the Ontario Center Specific Plan,” as amended by the Specific Plan Amendment.

1.1.37 “Subsequent Development Approvals” means all Development Approvals 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 and depiction Property
Exhibit “B” Map showing 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. 565
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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, such 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 Development 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 Section 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 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 566
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respect to the portion of the Property so sold, transferred, or assigned; and (2) the payment of the applicable processing charge to cover the City’s review and consideration of such sale, transfer, 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 execute 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 agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer, or assignment that is not made in compliance with this Subsection 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 of any applicable cure periods), in which case such transferring owner shall remain liable for such default but not any future defaults by the assignee 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, transfer, 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 Agreement to Mortgagees or their initial transferees after a foreclosure, deed in lieu, or similar action permitted under 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 567
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65868. Any amendment of this Agreement, which amendment has been requested by Owner, shall be considered by the City only upon the payment of the applicable processing charge. 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 mutual 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 cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering 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 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 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 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 behalf 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 constitute an amendment hereof. The City Manager shall be authorized to execute any operating 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 with 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 completion as referred to in California 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 Agreement 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 approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any 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 Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below.

All notices shall be addressed as follows:
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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 at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Development of the Project; Rights to Develop.

3.1.1 Development of the Project. In consideration of the premises, purposes, and intentions set forth in this Agreement, and in consideration of the assurances 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 the 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 standards, as such may be modified from time to time.

3.1.2 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, Owner shall have a vested right to develop the Project in accordance with the Existing Land Use Regulations, subject to the terms and conditions 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 570
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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 Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 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 factors. 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 prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop (without the obligation) the Property in such order and at such rate and 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, subject 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 thereafter such extensions must be approved by the City Manager and (ii) such extensions shall not apply to the first milestone (i.e., submission of the building application) for the first of the Lots of the Phased Development to be developed) and (c) any extensions of entitlements or permits granted by any governmental authority on a statewide, citywide or countywide basis, Owner shall achieve the following milestones in accordance with the following schedule:

Event Date

1. Submission by Owner of building permit
application to the City for the Project
On or before one hundred eighty
(180) days following the date a final
Certificate of Occupancy is issued
with respect to the building(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, however
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Commencement of Construction shall
occur within 6 months of the
Commencement of Construction 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 submission
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 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 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 require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this 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, 572
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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 development 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. 573
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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 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 regulations, enacted after the Approval Date, prevent or preclude compliance with one or more 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 regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce 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 dedicated 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 Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies. City agrees to cooperate fully, at no material out-of-pocket cost to City, with Owner in obtaining any required permits or compliance with the 574
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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 permitted by applicable law, 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 indefinitely and shall be in effect unless this Agreement is terminated for any reason other than 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. 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 Approval Date, which are shown 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 development process. Nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by City to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by City.

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 (subject to the right to deferment 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; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or 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 component 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 Project for 576
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purposes of calculating the fifty percent (50%) amount that Owner may elect to include as Deferred DIFs.
(b) Owner agrees that, 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 successive 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 an 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 of 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 Property 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 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 obligations 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 in 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 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 Initiation 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 California 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. Issuance 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 charge shall be generally consistent 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 Review. 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 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 578
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acting in good-faith compliance with the provisions of this 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 this Agreement.

The burden of proof on this issue is upon the Owner.

6.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the Owner has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

6.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the Owner has complied in good faith with the terms and conditions of 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 noncompliance, together with a written 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 substantial evidence in the administrative record, that the Owner has not complied in good faith with the 579
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terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers 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 Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. Owner may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General; Waiver of Monetary Damages. It is acknowledged by the parties that, subject to and without limiting the 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, neither party would have entered into this Agreement if it were to be liable in monetary damages under this Agreement, or with respect 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 to 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, restrict 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 without limitation the Ground 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 compel specific performance of the obligations of Owner under this Agreement or (b) termination 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 make 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 basis 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 determination of the City Council 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 which none of the milestones under Section 3.3 of the applicable Related Development Agreement(s) have been achieved and for which a standard construction loan from an unrelated 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 respect to such Lot (a “Protected Lot”), then the termination of this Agreement or the Related 581
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Development Agreement for any other Lot shall not affect the Related Development 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 Agreement, provided that Owner has first complied with the procedures in Section 8.5 below.

8.4 Release. Subject to and without limiting 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, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement.

8.5 Notice and Cure. Failure or delay by either party to perform any term or provision of this Agreement, which is not cured within 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 prosecutes 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 than 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 written notice of default to the party in default specifying the default complained of by the injured party. Failure 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 implicate, 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 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 582
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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 unreasonably withheld, conditioned or delayed), at its expense, including attorneys’ fees, indemnify, and hold harmless 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 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 cooperate 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, 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 misconduct of any of the City Parties 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, 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, 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, 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 responsible 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 583
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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, reasonable 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 of City’s failure to pay any amounts imposed by the State of California (if any) pursuant 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 court 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) construction of a building has commenced pursuant to and in accordance with a building permit 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), including, 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 attorneys’ 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) years after such termination, except to the extent such indemnification relates to any third party claims, in which event such indemnification shall survive until the expiration of any applicable statute of limitations.

10. MORTGAGEE PROTECTION.

The parties hereto 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 584
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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 interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement.

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 security interest of its Security Instrument, as well as such other documents containing terms and provisions customarily required by Mortgagees (taking into account the customary 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 agreement 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 Article 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 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 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, 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 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 585
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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 within 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 amended 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 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 required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the City terminates 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 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 are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 586
49114321.13

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 remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, in 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 agreement for the repayment of such Deferred DIFs 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 language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

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 such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners.

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 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 difficulties beyond the party’s control (including the party’s employment force), inability to procure services, labor or materials not related to the price thereof, failure of electric power, governmental actions, governmental laws, regulations or restrictions, third party litigation or administrative proceedings, actual or 587
49114321.13

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 Property 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 events shall occur, the term 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 Agreement 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 each 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 executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

11.15 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 California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

11.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other 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. 588
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11.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other 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 Process. In the event Owner is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, Owner shall file with the Planning Director, upon its execution of this 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 obtained and waives any and all objections and protests thereto. Owner for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S.

No. 6638).

11.20 Estoppel Certificate. Within thirty (30) days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the 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 represented 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 warrants that the person or persons executing this Agreement on behalf of such party has the authority to execute this 589
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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 costs 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]
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[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
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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. 592

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. 593
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.
594
EXHIBIT “A” CONTINUED

TO DEVELOPMENT AGREEMENT

LEASE AREA DEPICTION (LOT C)

LOT C N
595
EXHIBIT “B”

TO DEVELOPMENT AGREEMENT

MAP SHOWING PROPERTY AND ITS LOCATION
N
596
EXHIBIT “C”

TO DEVELOPMENT AGREEMENT

DEVELOPMENT IMPACT FEES AS OF THE APPROVAL DATE
(Development Impact Fees to follow this page)
597
ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, FILE NO. PDA22-003-D, A DEVELOPMENT AGREEMENT

BETWEEN THE CITY OF ONTARIO AND OTC LOT D 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 APPROXIMATELY 2.04

ACRES OF LAND LOCATED AT THE SOUTHEAST CORNER OF

ONTARIO VIA PIEMONTE AND VIA VILLAGIO WITHIN THE MIXED-USE SUBAREA 11 OF THE PIEMONTE OVERLAY OF THE ONTARIO

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

WHEREAS, OTC Lot D 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 Ordinance (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 11 of the Piemonte Overlay of 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 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 (hereinafter referred to as “MND”) was subsequently adopted on May 16, 2017, 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
598
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 of 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 City Council the responsibility and authority to approve 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 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 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 599
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, voting to issue Resolution PC22-030, recommending the City Council approve the Application; and
WHEREAS, on July 19, 2022, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

NOW, THEREFORE, IT IS HEREBY FOUND, DETERMINED, AND ORDAINED by the City Council of the City of Ontario, as follows:

SECTION 1. Environmental Determination and Findings. As the decision- making authority for the Project, the City Council has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the City Council finds as follows:
(1) The environmental impacts of 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 (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 City Council; 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.
600
SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The Project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the decision-making authority for the Project, the City Council 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). The residential capacity proposed in this Project 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 601
Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making authority for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ALUCP compatibility factors, including [1] Safety Criteria (ALUCP Table 2-2) and Safety Zones (ALUCP Map 2-2), [2] Noise Criteria (ALUCP Table 2-3) and Noise Impact Zones (ALUCP Map 2-3), [3] Airspace protection Zones (ALUCP Map 2-4), and [4] Overflight Notification Zones (ALUCP Map 2-5). As a result, the CITY COUNCIL, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ALUCP.

SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
a. The Development Agreement applies to approximately 4.83 acres of land generally located southwest corner of Ontario Center Parkway and Concours Street; 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 of commercial/office/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 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 602
Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6. City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the herein described Application, subject to each and every condition set forth in the Development Agreement (File No. 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.

SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 10. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 11. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2022. _____________________________________
PAUL S. LEON, MAYOR
603
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
604

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held July 19, 2022 and adopted at the regular meeting held ___________, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

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

SHEILA MAUTZ, CITY CLERK
(SEAL)
605
ATTACHMENT A:

File No. PDA22-003-D

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
OTC Lot D Owner LLC
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 Lot D Owner, LLC
Lot
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, the 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 Project are consistent with the City’s Comprehensive General Plan and any specific plan applicable thereto; and 608
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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 sufficiency of which is hereby acknowledged, the parties agree as follows:

1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

1.1.2 “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.
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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 project for the purpose of defraying all or a portion of the cost of public facilities related to the development project. 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 Approvals 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 610
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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 challenge, 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 Regulations” means all ordinances, resolutions, codes, rules, regulations, and official policies of City governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any City ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
(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 may 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. 611
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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 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 concurrently 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 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 and depicted on Exhibit “A” 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” means 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 Overlay at the Ontario Center Specific Plan,” as amended by the Specific Plan Amendment.

1.1.37 “Subsequent Development Approvals” means all Development Approvals 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 and depiction of the Property Exhibit “B” Map showing 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. 613
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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, such 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 Development 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 Section 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 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 614
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respect to the portion of the Property so sold, transferred, or assigned; and (2) the payment of the applicable processing charge to cover the City’s review and consideration of such sale, transfer, 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 execute 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 agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer, or assignment that is not made in compliance with this Subsection 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 of any applicable cure periods), in which case such transferring owner shall remain liable for such default but not any future defaults by the assignee 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, transfer, 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 Agreement to Mortgagees or their initial transferees after a foreclosure, deed in lieu, or similar action permitted under 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 615
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65868. Any amendment of this Agreement, which amendment has been requested by Owner, shall be considered by the City only upon the payment of the applicable processing charge. 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 mutual 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 cancel this Agreement. The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering 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 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 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 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 behalf 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 constitute an amendment hereof. The City Manager shall be authorized to execute any operating 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 with 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 completion as referred to in California 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 Agreement 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 approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any 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 Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment, or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below.

All notices shall be addressed as follows:
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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, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Development of the Project; Rights to Develop.

3.1.1 Development of the Project. In consideration of the premises, purposes, and intentions set forth in this Agreement, and in consideration of the assurances 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 the 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 standards, as such may be modified from time to time.

3.1.2 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, Owner shall have a vested right to develop the Project in accordance with the Existing Land Use Regulations, subject to the terms and conditions 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 618
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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 Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations. In connection with any Subsequent Development Approval, City shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 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 factors. 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 prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that Owner shall have the right to develop (without the obligation) the Property in such order and at such rate and 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, subject 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 thereafter such extensions must be approved by the City Manager and (ii) such extensions shall not apply to the first milestone (i.e., submission of the building application) for the first of the Lots of the Phased Development to be developed) and (c) any extensions of entitlements or permits granted by any governmental authority on a statewide, citywide or countywide basis, Owner shall achieve the following milestones in accordance with the following schedule:

Event Date

1. Submission by Owner of building permit
application to the City for the Project
On or before one hundred eighty
(180) days following the date a final
Certificate of Occupancy is issued
with respect to the building(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, however
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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 after receipt of such initial
submission by City (provided,
however, prior to such submission
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 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 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 require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event Owner finds that a change in the Existing Development Approvals is necessary or appropriate, Owner shall apply for a Subsequent Development Approval to effectuate such change and City shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this 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, 620
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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 development 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. 621
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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 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 regulations, enacted after the Approval Date, prevent or preclude compliance with one or more 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 regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce 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 dedicated 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 Property separately from or jointly with City and this Agreement does not limit the authority of such other public agencies. City agrees to cooperate fully, at no material out-of-pocket cost to City, with Owner in obtaining any required permits or compliance with the 622
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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 permitted by applicable law, 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 indefinitely and shall be in effect unless this Agreement is terminated for any reason other than 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. 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 Approval Date, which are shown 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 development process. Nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by City to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by City.

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 (subject to the right to deferment 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; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or 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 component 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 Project for 624
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purposes of calculating the fifty percent (50%) amount that Owner may elect to include as Deferred DIFs.
(b) Owner agrees that, 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 successive 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 an 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 of 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 Property 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 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 obligations 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 in 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 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 Initiation 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 California 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. Issuance 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 charge shall be generally consistent 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 Review. 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 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 626
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acting in good-faith compliance with the provisions of this 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 this Agreement.

The burden of proof on this issue is upon the Owner.

6.1.5 Findings Upon Public Hearing. The Planning Commission shall determine upon the basis of substantial evidence whether or not the Owner has, for the period under review, complied in good faith with the terms and conditions of this Agreement.

6.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the Owner has complied in good faith with the terms and conditions of 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 noncompliance, together with a written 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 substantial evidence in the administrative record, that the Owner has not complied in good faith with the 627
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terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers 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 Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) Owner is not in default. The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. Owner may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or Owner, City shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General; Waiver of Monetary Damages. It is acknowledged by the parties that, subject to and without limiting the 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, neither party would have entered into this Agreement if it were to be liable in monetary damages under this Agreement, or with respect 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 to 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, restrict 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 without limitation the Ground 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 compel specific performance of the obligations of Owner under this Agreement or (b) termination 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 make 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 basis 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 determination of the City Council 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 which none of the milestones under Section 3.3 of the applicable Related Development Agreement(s) have been achieved and for which a standard construction loan from an unrelated 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 respect to such Lot (a “Protected Lot”), then the termination of this Agreement or the Related 629
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Development Agreement for any other Lot shall not affect the Related Development 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 Agreement, provided that Owner has first complied with the procedures in Section 8.5 below.

8.4 Release. Subject to and without limiting 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, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the City because it entered into this Agreement or because of the terms of this Agreement.

8.5 Notice and Cure. Failure or delay by either party to perform any term or provision of this Agreement, which is not cured within 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 prosecutes 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 than 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 written notice of default to the party in default specifying the default complained of by the injured party. Failure 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 implicate, 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 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 630
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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 unreasonably withheld, conditioned or delayed), at its expense, including attorneys’ fees, indemnify, and hold harmless 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 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 cooperate 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, 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 misconduct of any of the City Parties 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, 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, 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, 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 responsible 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 631
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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, reasonable 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 of City’s failure to pay any amounts imposed by the State of California (if any) pursuant 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 court 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) construction of a building has commenced pursuant to and in accordance with a building permit 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), including, 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 attorneys’ 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) years after such termination, except to the extent such indemnification relates to any third party claims, in which event such indemnification shall survive until the expiration of any applicable statute of limitations.

10. MORTGAGEE PROTECTION.

The parties hereto 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 632
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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 interpretation or modification. City will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement.

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 security interest of its Security Instrument, as well as such other documents containing terms and provisions customarily required by Mortgagees (taking into account the customary 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 agreement 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 Article 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 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 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, 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 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 633
49114321.13

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 within 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 amended 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 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 required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the City terminates 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 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 are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement. 634
49114321.13

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 remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, in 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 agreement for the repayment of such Deferred DIFs 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 language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

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 such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners.

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 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 difficulties beyond the party’s control (including the party’s employment force), inability to procure services, labor or materials not related to the price thereof, failure of electric power, governmental actions, governmental laws, regulations or restrictions, third party litigation or administrative proceedings, actual or 635
49114321.13

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 Property 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 events shall occur, the term 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 Agreement 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 each 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 executed by the parties in counterparts, which counterparts shall be construed together and have the same effect as if all of the parties had executed the same instrument.

11.15 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 California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

11.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other 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. 636
49114321.13

11.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other 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 Process. In the event Owner is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, Owner shall file with the Planning Director, upon its execution of this 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 obtained and waives any and all objections and protests thereto. Owner for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S.

No. 6638).

11.20 Estoppel Certificate. Within thirty (30) days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the 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 represented 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 warrants that the person or persons executing this Agreement on behalf of such party has the authority to execute this 637
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 costs 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]
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[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 D 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
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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. 640

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. 641
EXHIBIT “A”

TO DEVELOPMENT AGREEMENT

LEGAL DESCRIPTION OF PROPERTY
APN NO. 0210-204-39
BEING A PORTION OF PARCEL 23, PARCEL MAP NO. 17550, IN THE CITY OF

ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 216, PAGE(S) 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 SOUTHWEST CORNER OF SAID PARCEL 23, AS SHOWN ON SAID PARCEL MAP;
THENCE NORTH 00°37’30” EAST, ALONG THE WEST LINE OF SAID PARCEL 23, 430.00 FEET TO THE NORTHWEST CORNER OF SAID PARCEL 23;
THENCE SOUTH 89°22’30” EAST, ALONG THE NORTH LINE OF SAID PARCEL 23, 515.00 FEET TO THE NORTHEAST CORNER OF SAID PARCEL 23;
THENCE, SOUTH 00°37’30” WEST, ALONG THE EAST LINE OF SAID PARCEL 23, 31.00 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 23; THENCE, ALONG SAID PARALLEL LINE NORTH 89°22’30” WEST 351.45 FEET; THENCE SOUTH 00°37’22” WEST 116.97 FEET;
THENCE NORTH 89°59’51” EAST 29.41 FEET;
THENCE, SOUTH 00°00’06” EAST 282.37 FEET TO A POINT ON THE SOUTH LINE OF SAID PARCEL 23;
THENCE NORTH 89°22’30” WEST, ALONG SAID SOUTH LINE, 196.05 FEET TO THE POINT OF BEGINNING;
SAID LAND IS SHOWN AS PARCEL C OF LOT LINE ADJUSTMENT NO. LLA 17-008 RECORDED SEPTEMBER 7, 2017, AS INSTRUMENT NO. 2017-0370546, OFFICIAL RECORDS.
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EXHIBIT “B” CONTINUED

TO DEVELOPMENT AGREEMENT

LEASE AREA DEPICTION (LOT D)
LOT D
N
643
EXHIBIT “B”

TO DEVELOPMENT AGREEMENT

MAP SHOWING PROPERTY AND ITS LOCATION
N
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EXHIBIT “C”

TO DEVELOPMENT AGREEMENT

DEVELOPMENT IMPACT FEES AS OF THE APPROVAL DATE
(Development Impact Fees to follow this page)
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Department: Investments & Revenue Resources
Prepared By: Nicole Phillips
Staff Member Presenting:

Armen Harkalyan, Executive Director of Finance
Reviewed By: Cecilia House, Armen Harkalyan
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 26
SUBJECT:

ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING MAINTENANCE DISTRICT NOS. 1 AND 2 FOR FISCAL YEAR 2022-23.

CITY OF ONTARIO
Agenda Report
July 19, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council conduct a combined public hearing for the districts and take the following actions pertaining to the levy of assessments within Street Lighting Maintenance Districts (SLMD) Nos. 1 and 2 and:

A
.

Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B
.

Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 1; and C
.

Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 2.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

As proposed, special assessment revenue will be generated in the amount of $315,643 from SLMD No. 1 and $95,480 from SLMD No. 2 during Fiscal Year 2022-23. A portion of the facilities within SLMD No. 1 provide general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $8,462 will be funded by the General Fund and is included in the City’s Adopted Fiscal Year 2022-23 Operating Budget.

BACKGROUND & ANALYSIS:

Street Lighting Maintenance District No. 1 was formed in 1984, and Street Lighting Maintenance District No. 2 was formed in 1999, pursuant to the Landscaping and Lighting Act of 1972 (the “1972 Act”), to help minimize the continually increasing cost for maintaining and operating the City’s street lighting system. A special assessment is levied annually on benefiting properties for the cost of maintenance and operation of certain street lighting facilities within the districts. The locations of the districts are shown on the provided maps.

646
The City’s Public Works Agency establishes the annual maintenance costs and maintains the street lighting system. Annually, an Engineer’s Report for each district must be prepared by the City's consultant, Harris & Associates, apportioning the costs to each parcel within the districts. The districts are comprised of commercial, industrial and some multi-family residential properties. Due to varying characteristics, the districts are organized into benefit zones and/or maintenance areas.

Each zone/maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit. The total assessment for each zone/maintenance area is then apportioned to its constituent parcels. Therefore, the assessments are unique and specific to each individual parcel of property.

The total assessment during tax year 2021-22 was $306,037 in SLMD No. 1, and $92,752 in SLMD No. 2. The City’s proposed Fiscal Year 2022-23 levy for the two Street Light maintenance districts is based on the previous year’s actual expenses. The proposed total assessments for tax year 2022- 23 are $315,643 in SLMD No. 1, and $95,480 in SLMD No. 2. A portion of the facilities within SLMD No. 1 provide general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $8,462 will be funded by the General Fund and is included in the City’s Adopted Fiscal Year 2022-23 Operating Budget. The assessed tax rates for Fiscal Year 2021-22, and the maximum and proposed tax rates for Fiscal Year 2022-23, are shown in Exhibit A.

On June 21, 2022, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared City Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 19, 2022 as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each district’s report is on file in the Records Management Department. Each report includes plans and specifications for the improvements being operated and maintained, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within the districts. 647
Prior Year Maximum Proposed
2021-22 2022-23 2022-23
SLMD No. 1, Zone 2000-1 per AU 104.00$ 173.00$ 108.00$ SLMD No. 1, Zone 2000-2 per AU 60.00$ 141.00$ 63.00$ SLMD No. 2, MA# 99-1 4,235.00$ 12,294.00$ 4,358.00$ SLMD No. 2, MA# 99-2 2,264.00$ 6,113.00$ 2,333.00$ SLMD No. 2, MA# 99-3 4,529.00$ 10,187.00$ 4,666.00$ SLMD No. 2, MA# 99-4 1,509.00$ 4,080.00$ 1,554.00$ SLMD No. 2, MA# 99-5 1,246.00$ 3,825.00$ 1,282.00$ SLMD No. 2, MA# 99-6 12,198.00$ 35,701.00$ 12,565.00$ SLMD No. 2, MA# 99-7 410.00$ 1,104.00$ 422.00$ SLMD No. 2, MA# 99-8 3,019.00$ 8,150.00$ 3,111.00$ SLMD No. 2, MA# 00-1 2,756.00$ 3,750.00$ 2,839.00$ SLMD No. 2, MA# 00-2 1,509.00$ 2,502.00$ 1,555.00$ SLMD No. 2, MA# 00-3 8,304.00$ 13,752.00$ 8,552.00$ SLMD No. 2, MA# 00-4 50,765.00$ 78,748.00$ 52,240.00$ Street Lighting Maintenance Districts Proposed Levy Rates FY 22-23

EXHIBIT A
648
649
650
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 1 FOR FISCAL YEAR 2022-23.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a street lighting maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Lighting Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Lighting Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
STREET LIGHTING MAINTENANCE DISTRICT NO. 1
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such report (the “Assessment Engineer’s Report”) has been prepared pursuant to the Assessment Law and filed with this City Council for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced fiscal year:
651
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. All parcels within the District that are owned or used either by a local government, the State of California or the United States and which specially benefit from the improvements to be maintained are being assessed.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimate of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
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SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
653

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
654
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 2 FOR FISCAL YEAR 2022-23.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a street lighting maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Lighting Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Lighting Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
STREET LIGHTING MAINTENANCE DISTRICT NO. 2
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such report (the “Assessment Engineer’s Report”) has been prepared pursuant to the Assessment Law and filed with this City Council for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced fiscal year:
655
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. All parcels within the District that are owned or used either by a local government, the State of California or the United States and which specially benefit from the improvements to be maintained are being assessed.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimate of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
656
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

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

BEST BEST & KREIGER LLP

CITY ATTORNEY
657

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
658
Department: Investments & Revenue Resources
Prepared By: Nicole Phillips
Staff Member Presenting:

Armen Harkalyan, Executive Director of Finance
Reviewed By: Cecilia House, Armen Harkalyan
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 27
SUBJECT:

ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NOS. 1, 2, 3 AND 4 FOR FISCAL YEAR
2022-23

CITY OF ONTARIO
Agenda Report
July 19, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council conduct a combined public hearing for the districts and take the following actions pertaining to the levy of assessments within Ontario Parkway Maintenance Assessment Districts (OPMAD) Nos. 1, 2, 3 and 4 and:

A
.

Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B
.

Adopt a Resolution confirming the diagrams and assessments and providing for the assessment levy within Ontario Parkway Maintenance Assessment Districts Nos. 1, 2, & 3; and C
.

Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Ontario Parkway Maintenance Assessment District No. 4.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT:

As proposed, special assessment revenue will be generated in the amount of $286,248 from OPMAD Nos. 1, 2 and 3, and $349,175 from OPMAD No. 4 during Fiscal Year 2022-

23. The total cost of $647,251

for operation and maintenance within OPMAD Nos. 1, 2 and 3 will exceed the assessment revenues by $361,004
. The difference of $361,004 will have $349,397 paid
from the General Fund and $11,607 will be provided from OPMAD No. 3 reserve. The General Fund
portion is included in the City's adopted budget for Fiscal Year 2022-23. The special assessment for OPMAD No. 4 is sufficient to pay all expenses within this service area.

BACKGROUND & ANALYSIS:

The first of these districts was formed in 1976 pursuant to the Landscaping and Lighting Act of 1972 (the “1972 Act”). Additional territories are annexed to the districts from time to time as development proceeds. The districts were formed to help minimize the continually increasing cost of maintaining and operating the landscaping along public streets where the property owners do not have direct access to the landscaping. A special assessment is 659
levied annually on benefiting properties for the cost of operation and maintenance of certain parkway landscaping facilities within the districts. The City’s Public Works Agency establishes the annual operation and maintenance costs and administers the maintenance of the landscaping.

Annually, an Engineer’s Report for each district must be prepared by the City's consultant, Harris & Associates, which apportions these costs to each parcel within the districts. The locations of the districts are shown on the maps attached to this report.

OPMAD Nos. 1, 2, and 3 are comprised of single-family residential developments. Due to varying characteristics, the districts are organized into benefit zones and/or maintenance areas. Each zone/maintenance area is assessed for only the operation and maintenance of the facilities from which it receives special direct benefit. The total assessment for each maintenance area is then apportioned to its constituent parcels.

Special assessment revenue will be generated in the combined amount of $286,248 from OPMAD Nos. 1, 2 and 3. The assessed tax rates for Fiscal Year 2021-2022 and the maximum and proposed tax rates for Fiscal Year 2022-23 are shown in the attached Exhibit A.

OPMAD No. 4 is comprised of single-family residential tracts and the Ontario Mills development area. The district is organized into 6 Maintenance Areas (MAs). Each maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit. The total assessment for each maintenance area is then apportioned to its constituent parcels.

The assessments for OPMAD No. 4 will generate a total of $349,175. OPMAD No. 4 will generate sufficient revenue to pay all expenses within the service area. The assessed tax rates for Fiscal Year 2021-22, and the maximum and proposed tax rates for Fiscal Year 2022-23, are shown in the attached Exhibit A.

On June 21, 2022, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 19, 2022, as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each report includes plans and specifications for the improvements and maintenance, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within each District. 660
Prior Year Maximum Proposed
2021-22 2022-23 2022-23
OPMAD No. 1 $ 66.32 per Lot $ 66.32 per Lot $ 66.32 per Lot OPMAD No. 2 $ 34.04 per Lot $ 34.04 per Lot $ 34.04 per Lot OPMAD No. 3, Zone 2000-1 $ 41.29 per Lot $ 41.29 per Lot $ 41.29 per Lot OPMAD No. 3, Zone 2000-2 $ 186.38 per Lot $ 266.68 per Lot $ 191.97 per Lot Prior Year Maximum Proposed
2021-22 2022-23 2022-23
MA#99-1 $ 55.65 per Lot $ 64.89 per Lot $ 57.32 per Lot MA#99-2 $ 362.55 per Lot $ 409.31 per Lot $ 373.43 per Lot MA#99-3 $ 1,126.58 per Acre $1,469.75 per Acre $1,160.38 per Acre MA#00-1 $ 264.84 per Lot $ 403.11 per Lot $ 272.78 per Lot MA#04-1 $ 1,065.26 per Lot $ 2,567.75 per Lot $ 1,097.25 per Lot MA#05-1 $ 1,463.53 per Lot $ 3,182.86 per Lot $ 1,507.40 per Lot Exhibit A
Ontario Parkway Maintenance Assessment Districts 1, 2 & 3 Proposed Levy Rates FY 2022-23
Ontario Parkway Maintenance Assessment District 4
Proposed Levy Rates FY 2022-23
661
662
663
664
665
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING THE ENGINEER'S REPORTS FOR THE

ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY
MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2, 3 AND 4 FOR
FISCAL YEAR 2022-23.

WHEREAS, the City Council of the City of Ontario, California, pursuant to the provisions of the “Landscaping and Lighting Act of 1972,” being Division 15, Part 2, of the Streets and Highways Code of the State of California, did, by previous Resolution, order the preparation of Engineer's Reports for the annual levy of assessments, consisting of plans and specifications, cost estimates, diagrams of the districts, and the assessment relating to what are now known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2, 3 and 4 (hereinafter referred to as the Districts); and
WHEREAS, there have now been presented to this City Council the Reports as required by said Division 15 of the Streets and Highways Code and as previously directed by Resolution; and
WHEREAS, this City Council has approved on a preliminary basis the Reports by a previous Resolution, and ordered the Reports to be filed in the Records Management Department to be open to public inspection; and
WHEREAS, this City Council has now examined and reviewed the Reports as presented, and is satisfied with each and all of the items and documents as set forth therein, and is satisfied that the assessments have been spread in accordance with the benefits received from the maintenance to be performed as set forth in said Reports.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That the Reports as presented, consisting of the following:

A. Plans and Specifications,
B. Estimates of cost,
C. Diagrams of the Districts, and
D. Assessment of the estimated cost
Are hereby approved and are ordered to be filed in the Records Management Department, as a permanent record and to remain open to public inspection. 666
SECTION 3. That the City Clerk shall certify the passage and adoption of this Resolution, and the minutes of this meeting shall so reflect the presentation of the Engineer's Reports.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
667

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
668
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAMS AND ASSESSMENTS,

AND PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN
ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2 AND 3 FOR FISCAL YEAR 2022-23.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the annual levy of assessments in special maintenance districts pursuant to the terms and provisions of the "Landscaping and Lighting Act of 1972," being Division 15, Part 2, of the Streets and Highways Code of the State of California in what is known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2 AND 3 (hereinafter referred to as the Districts); and
WHEREAS, the City Council has ordered the preparation of the Engineer’s Reports, and the Engineer’s Reports have been prepared and filed with this City Council pursuant to law for its consideration, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above referenced Districts, and further did proceed to give notice of the time and place for a Public Hearing on all matters relating to said annual levy of the proposed assessments; and
WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That the estimates of costs, the assessment diagrams, the assessments and all other matters, as set forth in the Engineer's Reports pursuant to said "Landscaping and Lighting Act of 1972," as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Engineer's Reports, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.
669
SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the referenced fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.

SECTION 10. That a certified copy of the assessments and diagrams shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
670
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
671

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
672
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NO. 4 FOR
FISCAL YEAR 2022-23.

WHEREAS, the City Council of the City of Ontario, California, has initiated proceedings for the levy of the annual assessment in a special maintenance district created pursuant to the terms of the “Landscaping and Lighting Act of 1972”, being Division 15, Part 2 of the Streets and Highways Code of the State of California (the “Landscaping Act”), Article XIIID of the Constitution of the State of California (“Article XIIID”) and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the “Implementation Act”) (the Landscaping Act, Article XIIID and the Implementation Act may be referred to collectively herein as the “Assessment Law”), in a special maintenance district known and designated as

CITY OF ONTARIO
PARKWAY MAINTENANCE ASSESSMENT DISTRICT NO. 4
(hereinafter referred to as the “District”); and
WHEREAS, the City Council has ordered the preparation of an Engineer’s Report, and such a report (the “Assessment Engineer’s Report”) has been prepared and filed with this City Council for its consideration pursuant to Assessment Law, and subsequently thereto this City Council did adopt its Resolution of Intention to levy and collect assessments for the referenced fiscal year relating to the above-referenced District, and further did proceed to give notice of the time and place for the Public Hearing on all matters relating to said annual levy of the proposed assessment; and WHEREAS, at this time this City Council has heard all testimony and evidence and is desirous of proceeding with said annual levy of assessments.

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

SECTION 1. That the above recitals are all true and correct.

SECTION 2. That upon the conclusion of the Public Hearing, written protests filed and not withdrawn are hereby overruled and denied.

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced Fiscal Year:
673
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

B. The assessments do not exceed the reasonable cost of the proportional special benefit conferred on each parcel.

C. Only the special benefits have been assessed.

D. There are no publicly owned parcels within the District.

E. The assessments do not exceed the maximum annual assessments previously authorized to be levied pursuant to the Assessment Law.

The estimates of costs, the assessment diagram, the assessments and all other matters, as set forth in the Assessment Engineer’s Report pursuant to the Assessment Law as submitted, are hereby approved, adopted by this City Council, and hereby confirmed.

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Assessment Engineer's Report, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.

SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the fiscal year.

SECTION 6. That the maintenance work of improvements contemplated by the Resolution of Intention shall be performed pursuant to law.

SECTION 7. That the County Auditor shall enter on the County Assessment Roll the amount of the Assessment and said Assessment shall then be collected at the same time and in the same manner as the County taxes are collected. After collection by said County, the net amount of the assessment shall be paid to the City Treasurer of said City.

SECTION 8. That the City Treasurer has previously established a special fund into which the City Treasurer shall place all monies collected by the Tax Collector pursuant to the provisions of the Resolution and the law, and said transfer shall be made and accomplished as soon as said monies have been made available to said City Treasurer.

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
674
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
675

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
676
Department: Records Management
Prepared By: Claudia Y Isbell
Staff Member Presenting:

Ruben Duran, City Attorney
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 28
SUBJECT:

A PUBLIC HEARING TO REVIEW INITIAL DRAFT DISTRICTING MAPS FOR THE

DISTRICT-BASED ELECTIONS UNDER THE CALIFORNIA VOTING RIGHTS ACT AND

INTRODUCE AN ORDINANCE TO ADOPT A MAP

CITY OF ONTARIO
Agenda Report
July 19, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council open a Public Hearing, review, consider, and provide direction regarding the initial draft maps and introduce an Ordinance to adopt a map.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

There is no direct fiscal impact associated with this Public Hearing.

BACKGROUND & ANALYSIS:

On April 19, 2022, the City Council conducted the first of five public hearings to receive community input regarding communities of interest.

The second public hearing
took place on May 10, 2022, at which time Staff introduced and provided a demonstration of the mapping tool that was subsequently released to the public. At that public hearing, the City Council also received input regarding communities of interest. Ten initial draft maps were made available on the City's district website on June 13, 2022, for public review. Six additional draft maps were posted on the City's district website on June 30, 2022.

On June 21, 2022, the City conducted the third Public Hearing where the City demographer presented and the City Council received input from the community. On July 5, 2022, the City conducted its fourth public hearing in the districting process.

The City Attorney's Office evaluated
publicly submitted comments and maps for compliance with the California Voting Rights Act and Federal Voting Rights Act, and initial draft maps were presented to Council for consideration at the fourth public hearing.

On July 19, 2022, the City is conducting the fifth public hearing.

At the fifth public hearing, t
he City
Council may select a draft map for approval, or, provide direction to the City's demographers for further consideration of draft maps.

677
The City continues to encourage public comments on the transition to districts process and the proposed district maps. In an effort to engage Ontario residents in the districting process, five community workshops were held in various areas of the City to provide background and specific directions on creating maps. These workshops were held in English and Spanish. There were four additional community workshops to specifically go over the mapping tool. The four additional community workshops were also held in English and Spanish. In addition, Staff distributed paper map kits at the Ontario Senior Center and during Concerts in the Park.

Information on the districting process, the community workshop presentations, and the paper map kits
can be found on the City's district website at ontarioca.gov/districts. Information on the website is available in both English and Spanish.

In conclusion, Staff recommends that the City Council conduct the fifth public hearing, consider the draft maps submitted, and introduce an Ordinance to select a map. 678
City of Ontario – Transition to District Elections
Draft Map 1
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP Draft Proposed
Election Sequence:
2024 – Districts 1 & 4
2026 – Districts 2 & 3
Total Deviation
.52%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
679
Draft Map 1 – Demographic Data

District

Total_Popu
lation
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,032 73 0.17% 33,306 6,571 1,557 94 1,393 98 279 734 2 43,863 -96 -0.22% 23,328 7,560 3,312 89 8,064 116 252 1,142 3 44,086 127 0.29% 31,213 4,523 3,589 135 3,337 131 219 939 4 43,856 -103 -0.23% 32,408 5,436 2,016 92 2,902 71 192 739 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 0.52%
Ideal = 1/4 of total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,909 23,834 5,823 1,224 89 1,181 71 168 519 33,689 16,982 6,350 2,673 68 6,597 90 197 732 32,652 22,136 3,959 2,713 112 2,834 101 146 651 33,216 23,546 4,772 1,657 70 2,474 53 123 521 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,280 7,198 1,239 16,566 9,710 39 720 7 73 All Four Districts are 27,285 6,720 1,999 14,861 12,395 18 2,874 26 99 Majority/Minority Hispanic 25,162 4,452 2,113 16,082 9,120 125 1,875 74 26 Voting Districts 27,531 5,598 1,621 17,891 9,600 62 1,935 84 90 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population 680
City of Ontario – Transition to District Elections
Draft Map 2 - Submitted by Plaintiff Chris Robles
A
dditional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP Draft Proposed Election
Sequence:
2024 – Districts 2 & 3
2026 – Districts 1 & 4
Total Deviation
.43%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
681
Draft Map 2 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,904 -55 -0.13% 30,048 5,251 3,698 137 3,398 146 239 987 2 43,860 -99 -0.23% 33,681 6,174 1,506 96 1,360 81 261 701 3 44,024 65 0.15% 32,250 5,139 1,907 91 3,629 70 193 745 4 44,049 90 0.20% 24,276 7,526 3,363 86 7,309 119 249 1,121 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 0.43%
Ideal = 1/4 total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
33,227 21,746 4,661 2,827 118 2,893 123 169 690 All Four Districts are 32,268 23,713 5,457 1,175 87 1,150 47 147 492 Majority/Minority Hispanic 33,193 23,354 4,479 1,576 69 3,022 56 123 514 Voting Districts 33,778 17,685 6,307 2,689 65 6,021 89 195 727 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,501 5,260 2,088 16,582 9,902 132 1,899 80 48 25,236 6,799 1,271 15,928 9,312 39 726 1 45 27,367 5,114 1,627 17,906 9,475 63 2,123 84 95 27,154 6,795 1,986 14,984 12,136 10 2,656 26 100 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
682
City of Ontario – Transition to District Elections
Draft Map 3 - Submitted by Plaintiff Chris Robles
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP Draft Proposed
Election Sequence:
2024 – Districts 1 & 3
2026 – Districts 2 & 4
Total Deviation

2.72%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
683
Draft Map 3 – Demographic Data

District
Total
Populaton
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,637 -322 -0.73% 32,988 6,617 1,519 109 1,348 90 244 722 2 44,263 304 0.69% 30,487 4,946 3,796 125 3,514 128 257 1,010 3 44,566 607 1.38% 32,878 5,126 1,806 96 3,656 81 192 731 4 43,371 -588 -1.34% 23,902 7,401 3,353 80 7,178 117 249 1,091 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 2.72%
Ideal = 1/4 of total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,531 23,503 5,846 1,211 100 1,140 62 149 520 All Four Districts are 33,347 21,978 4,397 2,898 106 2,988 107 172 701 Majority/Minority Hispanic 33,364 23,618 4,461 1,479 74 3,056 58 118 500 Voting Districts 33,224 17,399 6,200 2,679 59 5,902 88 195 702 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,533 7,367 1,139 16,743 9,795 50 726 7 65 25,884 4,754 2,141 16,321 9,581 129 2,056 74 28 27,214 5,171 1,721 17,659 9,536 64 2,027 84 95 26,627 6,676 1,971 14,677 11,913 1 2,595 26 100 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population 684
City of Ontario – Transition to District Elections Draft Map 4 - Submitted by Plaintiff Chris Robles
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP Draft Proposed
Election Sequence:
2024 – Districts 1 & 2
2026 – Districts 3 & 4
Total Deviation

3.48%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
685
Draft Map 4 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,175 -784 -1.78% 33,017 6,389 1,413 93 1,256 89 243 675 2 44,703 744 1.69% 34,400 4,810 1,765 104 2,653 80 219 672 3 43,366 -593 -1.35% 28,397 5,550 4,054 132 3,777 129 236 1,091 4 44,593 634 1.44% 24,441 7,341 3,242 81 8,010 118 244 1,116 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.48%
Ideal = 1/4 of total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,162 23,560 5,651 1,124 87 1,055 63 150 472 33,237 24,627 4,197 1,434 79 2,252 55 119 474 32,872 20,498 4,902 3,111 113 3,209 109 174 756 34,195 17,813 6,154 2,598 60 6,570 88 191 721 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
25,903 7,082 1,099 16,521 9,386 50 641 6 70 All Four Districts are 26,448 4,853 1,587 17,855 8,613 52 1,682 85 94 Majority/Minority Hispanic 26,244 5,313 2,237 15,819 10,420 124 2,187 74 23 Voting Districts 27,663 6,720 2,049 15,205 12,406 18 2,894 26 101 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
686
City of Ontario – Transition to District Elections
Draft Map 5
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

3.46%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
687
Draft Map 5 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,841 -118 -0.27% 33,078 6,627 1,585 104 1,374 91 251 731 2 43,055 -904 -2.06% 32,901 4,791 1,718 91 2,608 71 218 657 3 44,367 408 0.93% 29,483 5,322 3,965 137 4,026 137 229 1,068 4 44,574 615 1.40% 24,793 7,350 3,206 78 7,688 117 244 1,098 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.46%
Ideal = 1/4 of total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,586 23,475 5,858 1,254 95 1,167 63 149 525 32,346 23,769 4,233 1,421 69 2,211 57 128 458 33,335 21,155 4,649 3,029 116 3,391 109 164 722 34,199 18,099 6,164 2,563 59 6,317 86 193 718 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,282 7,422 1,303 16,289 10,005 50 715 7 65 All Four Districts are 26,145 4,676 1,391 17,864 8,286 66 1,728 84 96 Majority/Minority Hispanic 25,929 5,032 2,254 15,830 10,077 110 2,089 74 33 Voting Districts 27,902 6,838 2,024 15,417 12,457 18 2,872 26 94 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
688
City of Ontario – Transition to District Elections
Draft Map 6
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed Election
Sequence:

2024 – Districts 2 & 3

2026 – Districts 1 & 4
Draws four (4)
majority/minority
Hispanic Voting
Districts
Total Deviation

5.23%
(under the acceptable
norm of <10%)
689
Draft Map 6 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,562 603 1.37% 23,752 7,680 3,337 89 8,161 116 254 1,173 2 42,354 -1,605 -3.65% 32,812 4,502 1,574 86 2,506 62 203 609 3 44,270 311 0.71% 33,422 6,690 1,583 106 1,380 98 254 737 4 44,651 692 1.57% 30,269 5,218 3,980 129 3,649 140 231 1,035 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 5.23%
Ideal = 1/4 Total Population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
34,226 17,304 6,443 2,690 68 6,685 90 198 748 31,682 23,686 3,942 1,292 64 2,122 47 114 415 32,906 23,722 5,907 1,252 97 1,176 69 153 530 33,652 21,786 4,612 3,033 110 3,103 109 169 730 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
27,718 6,837 2,016 15,130 12,561 18 2,912 26 99 All Four Districts are 25,182 4,449 1,401 17,268 7,921 52 1,613 84 99 Majority/Minority Hispanic 26,666 7,517 1,284 16,587 10,089 50 713 7 62 Voting Districts 26,692 5,165 2,271 16,415 10,254 124 2,166 74 28 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
690
City of Ontario – Transition to District Elections
Draft Map 7
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed
Election Sequence:

2024 – Districts 2 & 3

2026 – Districts 1 & 4
Total Deviation

4.81%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
691
Draft Map 7 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,570 611 1.39% 23,755 7,680 3,337 89 8,164 116 254 1,175 2 43,761 -198 -0.45% 32,520 5,344 2,001 94 2,813 77 197 715 3 44,810 851 1.94% 33,865 6,746 1,604 101 1,392 96 271 735 4 42,696 -1,263 -2.87% 30,115 4,320 3,532 126 3,327 127 220 929 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 4.81%
Ideal = 1/4 total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
34,234 17,307 6,443 2,690 68 6,688 90 198 750 All Four Districts are 33,108 23,601 4,698 1,644 72 2,394 59 128 512 Majority/Minority Hispanic 33,529 24,259 5,967 1,264 96 1,182 69 167 525 Voting Districts 31,595 21,331 3,796 2,669 103 2,822 97 141 636 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
27,725 6,837 2,016 15,133 12,566 18 2,914 26 99 27,519 5,501 1,605 18,028 9,478 66 1,906 84 90 27,029 7,408 1,258 17,053 9,962 39 721 7 72 23,985 4,222 2,093 15,186 8,819 121 1,863 74 27 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
692
City of Ontario – Transition to District Elections
Draft Map 8
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

3.59%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
693
Draft Map 8 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,178 -781 -1.78% 32,742 6,562 1,425 95 1,326 89 231 708 2 43,712 -247 -0.56% 34,252 4,412 1,650 103 2,357 77 233 628 3 44,757 798 1.81% 24,950 7,129 3,135 84 8,022 125 226 1,086 4 44,190 231 0.52% 28,311 5,987 4,264 128 3,991 125 252 1,132 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.59%
Ideal = 1/4 total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,374 23,506 5,827 1,143 85 1,107 63 141 502 32,179 24,321 3,839 1,333 82 1,995 53 125 431 34,597 18,352 6,056 2,533 67 6,593 96 178 722 33,316 20,319 5,182 3,258 105 3,391 103 190 768 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,407 7,263 1,139 16,786 9,621 50 667 6 65 All four districts 25,220 4,342 1,438 17,546 7,739 56 1,485 69 95 are drawn as majority/minority 27,657 6,698 1,867 15,332 12,257 28 3,017 42 105 Hispanic voting districts 26,974 5,665 2,528 15,736 11,208 110 2,235 74 23 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population 694
City of Ontario – Transition to District Elections
Draft Map 9
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

3.80%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
695
Draft Map 9 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,907 -52 -0.12% 32,455 5,087 1,691 97 3,567 66 213 731 2 44,546 587 1.33% 33,693 6,664 1,591 103 1,395 97 260 743 3 42,877 -1,082 -2.46% 28,896 5,030 3,830 131 3,616 129 222 1,023 4 44,507 548 1.25% 25,211 7,309 3,362 79 7,118 124 247 1,057 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.80%
Ideal = 1/4 total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
33,039 23,481 4,430 1,391 75 2,989 50 126 497 33,156 23,978 5,877 1,258 96 1,185 71 155 536 32,090 20,648 4,408 2,911 110 3,061 99 159 694 34,181 18,391 6,189 2,707 58 5,851 95 194 696 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,508 5,035 1,509 17,369 9,139 69 1,996 84 99 Draws four majority/minority 26,923 7,461 1,280 16,902 10,011 50 706 7 63 Hispanic Voting Districts 24,914 4,791 2,188 15,252 9,667 110 1,998 74 26 27,913 6,681 1,995 15,877 12,008 15 2,704 26 100 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*Citizen Voting Age Population 696
City of Ontario – Transition to District Elections
Draft Map 10
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3MZMiJP

Draft Proposed
Election Sequence:

2024 – Districts 1 & 3

2026 – Districts 2 & 4
Total Deviation

3.59%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
697
Draft Map 10 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,629 -330 -0.75% 33,297 6,293 1,514 92 1,362 84 273 714 2 43,886 -73 -0.17% 30,687 4,773 3,622 135 3,360 139 218 952 3 44,951 992 2.26% 32,369 5,623 1,985 103 3,796 76 202 797 4 43,371 -588 -1.34% 23,902 7,401 3,353 80 7,178 117 249 1,091 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.59%
Ideal = 1/4 total population
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,321 23,602 5,568 1,189 87 1,156 59 160 500 32,812 21,992 4,195 2,744 112 2,851 107 148 663 34,109 23,505 4,941 1,655 81 3,177 61 131 558 33,224 17,399 6,200 2,679 59 5,902 88 195 702 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
25,469 6,848 1,271 16,072 9,399 50 721 3 67 Four Districts are drawn as 25,553 4,782 2,080 16,171 9,387 110 1,865 78 32 Majority/Minority Hispanic 28,609 5,662 1,650 18,480 10,126 83 2,223 84 89 Voting Districts 26,627 6,676 1,971 14,677 11,913 1 2,595 26 100 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP - Voting Age Population
*CVAP = Citizen Voting Age Population
698
City of Ontario – Transition to District Elections
Draft Map 11
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

4.41%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
699
Draft Map 11 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*Al
one
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,050 91 0.21% 32,430 5,918 1,852 106 2,643 80 230 791 2 44,735 776 1.76% 32,591 6,162 2,299 127 2,428 113 213 802 3 44,254 295 0.67% 33,584 4,836 1,901 80 2,936 83 224 610 4 42,798 -1,161 -2.64% 21,650 7,174 4,422 97 7,689 140 275 1,351 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 4.41%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,927 23,195 5,216 1,466 86 2,225 54 134 551 33,822 23,640 5,440 1,750 114 2,074 98 140 566 32,952 24,045 4,202 1,551 66 2,433 57 151 447 32,765 15,618 6,046 3,500 73 6,354 106 209 859 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,774 5,931 1,686 16,772 10,010 38 1,671 69 116 Draws Four Majority/Minority 27,301 6,401 1,358 17,645 9,655 120 1,304 14 41 Hispanic Voting Districts 26,976 5,103 1,560 18,438 8,548 69 1,562 16 14 25,207 6,533 2,368 12,545 12,612 17 2,867 92 117 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
700
City of Ontario – Transition to District Elections
Draft Map 12
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 3 & 4

2026 – Districts 1 & 2
Total Deviation

4.04%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
701
Draft Map 12 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,892 933 2.12% 23,032 7,607 4,524 92 7,837 144 276 1,380 2 43,670 -289 -0.66% 33,034 4,378 2,022 88 3,226 73 217 632 3 43,118 -841 -1.91% 31,593 5,867 1,846 105 2,625 80 214 788 4 44,157 198 0.45% 32,596 6,238 2,082 125 2,008 119 235 754 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 4.04%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
34,443 16,678 6,428 3,583 69 6,485 110 208 882 32,212 23,443 3,784 1,615 73 2,661 49 141 446 32,300 22,634 5,169 1,465 85 2,212 54 131 550 33,511 23,743 5,523 1,604 112 1,728 102 154 545 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
27,324 6,953 2,625 13,885 13,407 13 2,987 92 117 Draws four majority/minority 25,641 4,504 1,510 17,428 8,207 56 1,840 16 14 Hispanic voting districts 26,458 5,903 1,685 16,509 9,963 38 1,662 69 116 26,835 6,608 1,152 17,578 9,248 137 915 14 41 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
702
City of Ontario – Transition to District Elections
Draft Map 13
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

1.69%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
703
Draft Map 13 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,603 -356 -0.81% 32,053 5,875 1,851 106 2,629 80 221 788 2 44,129 170 0.39% 32,584 6,233 2,082 125 2,007 119 230 749 3 43,757 -202 -0.46% 32,427 4,580 2,081 88 3,610 72 226 673 4 44,348 389 0.88% 23,191 7,402 4,460 91 7,450 145 265 1,344 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 1.69%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,600 22,921 5,175 1,465 86 2,216 54 133 550 33,491 23,734 5,520 1,604 112 1,727 102 149 543 32,351 23,057 3,932 1,650 72 2,985 46 141 468 34,024 16,786 6,277 3,548 69 6,158 113 211 862 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,634 5,910 1,685 16,662 9,980 38 1,662 69 116 Draws four majority/minority 26,824 6,606 1,152 17,573 9,242 137 915 14 41 Hispanic Voting Districts 25,421 4,486 1,407 17,208 8,213 56 1,969 16 14 27,379 6,966 2,728 13,957 13,390 13 2,858 92 117 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
704
City of Ontario – Transition to District Elections
Draft Map 14
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 3 & 4

2026 – Districts 1 & 2
Total Deviation

3.51%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
705
Draft Map 14 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,421 -538 -1.22% 23,809 6,725 5,007 114 6,060 138 270 1,298 2 43,412 -547 -1.24% 28,865 5,717 2,246 64 5,417 92 214 797 3 44,954 995 2.26% 35,151 5,730 1,369 126 1,576 106 228 668 4 44,050 91 0.21% 32,430 5,918 1,852 106 2,643 80 230 791 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.51%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
33,013 17,068 5,739 3,889 92 5,047 114 209 855 33,044 21,056 4,889 1,827 50 4,465 62 147 548 33,482 25,179 5,060 1,085 111 1,349 85 144 469 32,927 23,195 5,216 1,466 86 2,225 54 134 551 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
25,830 6,185 2,898 13,302 12,558 73 2,472 66 115 Draws four majority/minority 27,063 5,642 1,540 17,064 9,994 45 2,408 42 11 Hispanic voting districts 26,591 6,210 848 18,262 8,263 88 853 14 46 26,774 5,931 1,686 16,772 10,010 38 1,671 69 116 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
706
City of Ontario – Transition to District Elections
Draft Map 15
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 1 & 2

2026 – Districts 3 & 4
Total Deviation

1.25%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
707
Draft Map 15 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL White
Alone
NL* Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 43,668 -291 -0.66% 33,263 6,542 1,390 100 1,330 94 243 706 2 43,885 -74 -0.17% 33,195 5,020 1,928 102 2,646 73 231 690 3 44,065 106 0.24% 28,842 5,521 4,160 126 3,943 128 235 1,110 4 44,219 260 0.59% 24,955 7,007 2,996 82 7,777 121 233 1,048 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 1.25%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
32,323 23,524 5,766 1,111 91 1,123 62 142 504 33,014 23,972 4,456 1,582 80 2,241 56 140 487 33,238 20,775 4,792 3,193 106 3,345 105 174 748 33,891 18,227 5,890 2,381 62 6,377 92 178 684 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
26,115 7,268 1,127 16,459 9,651 33 706 7 65 Draws four majority/minority 26,670 4,934 1,557 17,947 8,723 83 1,742 68 95 Hispanic voting districts 26,515 5,378 2,365 15,792 10,733 110 2,211 74 23 26,958 6,388 1,923 15,202 11,718 18 2,745 42 105 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
708
City of Ontario – Transition to District Elections
Draft Map 16
Additional online viewing, with search and other geolocation features enabled, may be found at https://bit.ly/3y2K9XD

Draft Proposed
Election Sequence:

2024 – Districts 1 & 3

2026 – Districts 2 & 4
Total Deviation

3.29%
(under the acceptable
norm of <10%)
Draws four (4)
majority/minority
Hispanic Voting
Districts
709
Draft Map 16 – Demographic Data

District
Total
Population
Raw
Population
%
Population Latino
NL*
White
Alone
NL Black
Alone
NL
AIAN*
Alone
NL Asian
Alone
NL
Hawaiian
Alone
NL Other
Alone
NL 2+
Races
1 44,577 618 1.41% 32,022 6,892 2,168 115 2,193 113 243 831 2 44,663 704 1.60% 32,865 4,589 3,137 117 2,682 110 265 898 3 43,380 -579 -1.32% 31,533 5,333 1,914 97 3,473 74 199 757 4 43,217 -742 -1.69% 23,835 7,276 3,255 81 7,348 119 235 1,068 Total 175,837 120,255 24,090 10,474 410 15,696 416 942 3,554 Ideal 43,959 Deviation 3.29%
Voting Age Population Total VAP* Latino VAP
NL White
Alone VAP
NL Black
Alone VAP

NL AIAN
Alone
VAP
NL Asian
Alone VAP
NL
Hawaiian
Alone
VAP
NL Other
Race
Alone
VAP
NL 2+
Races
VAP
34,018 23,399 6,117 1,668 102 1,867 95 168 602 32,496 22,874 4,005 2,413 102 2,273 71 154 604 32,882 22,903 4,692 1,591 75 2,906 60 128 527 33,070 17,322 6,090 2,595 60 6,040 89 184 690 Total 132,466 86,498 20,904 8,267 339 13,086 315 634 2,423 Citizen Voting Age Population
CVAP*19
Total
CVAP19 NL
White
CVAP19
NL Black
CVAP
Hispanic
CVAP19
Not
Hispanic
CVAP19

NL AIAN
CVAP19

NL ASIAN
CVAP19
NL
Hawaiian
CVAP19
NL Other
28,255 7,131 1,149 18,222 10,022 132 889 14 41 Draws four majority/minority 24,030 4,922 2,316 14,621 9,424 28 1,788 67 58 Hispanic voting districts 27,444 5,384 1,550 17,834 9,605 74 2,083 84 89 26,529 6,531 1,957 14,723 11,774 10 2,644 26 100 Total 106,258 23,968 6,972 65,400 40,825 244 7,404 191 288 *NL = Non Latino
*AIAN = American Indian Alaskan Native
*VAP = Voting Age Population
*CVAP = Citizen Voting Age Population
710
ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, ADDING A NEW ARTICLE 3 TO TITLE 2 OF VOLUME 1 OF THE ONTARIO MUNICIPAL CODE TO CHANGE THE CITY’S

ELECTORAL SYSTEM FROM AT-LARGE TO BY-DISTRICT ELECTIONS

WITH RESPECT TO ELECTING CITY COUNCIL MEMBERS AND

MAINTAINING AN ELECTIVE MAYOR, ESTABLISHING DISTRICT

BOUNDARIES, SCHEDULING ELECTIONS WITHIN THE DISTRICTS,

AND MAKING CERTAIN FINDINGS PURSUANT TO THE CALIFORNIA
ENVIRONMENTAL QUALITY ACT.

WHEREAS, the City of Ontario, California (“City”) is a general law city, duly organized under the constitution and laws of the State of California; and WHEREAS, the City and its legislative body, the City Council, supports the full participation of all eligible and registered voters in electing Members of the City Council; and
WHEREAS, four of the members of the Ontario City Council are currently elected in at-large elections, in which each City Councilmember is elected by all registered voters of the entire City, with the Mayor being separately elected by all registered voters of the entire City, pursuant to California Government Code sections 34871 and 34900 et seq.; and WHEREAS, on September 28, 2016, Governor Edmund G. Brown, Jr. signed Assembly Bill 2220 (“AB 2220”), which became effective January 1, 2017, and amended California Government Code section 34886 to authorize the City Council of any city, regardless of population size, to adopt an ordinance change to a by-district system of electing City Councilmembers, including with an elective mayor, without the need to submit such an ordinance to voters for approval; and
WHEREAS, on September 28, 2016, Governor Edmund G. Brown, Jr. also signed Assembly Bill 350 (“AB 350”), which became effective January 1, 2017, which requires a City that changes to district-based elections to hold public hearings before and after drawing a preliminary map or maps of the proposed district boundaries, and to publish and make available for release at least one draft map and the potential sequencing of elections; and
WHEREAS, on or about March 5, 2020, the City received a complaint asserting that the City’s current at-large electoral system violates the California Voting Rights Act of 2001 (“CVRA”); and
WHEREAS, the March 5, 2020 complaint does not contain sufficient evidence of a violation of the CVRA, but the cost of defending against a lawsuit under the CVRA is extremely high, even if the City is successful, and at this time such an expensive defense would severely burden the City’s budget and curtail the City’s ability to provide needed services to its residents; and
711
WHEREAS, in order to avoid spending taxpayer dollars in the defense of a potentially extremely expensive lawsuit, the City Council has determined that it is in the best interest of the City to move from its current at-large electoral system to a by-district election for members of the City Council, with an elective mayor pursuant to California Government Code section 34886 and in furtherance of the purposes of CVRA, and to that end, the City Council has undertaken an extensive public outreach effort, including multiple workshops and public hearings, at which time the public was invited to participate and provide input as to the proposed boundaries, content and composition of the districts and the potential sequencing of elections; and
WHEREAS, under the provisions of California Election Code section 10010, a City that changes from an at-large method of election to a district-based election must do all of the following before a public hearing at which the City Council votes to approve or defeat an ordinance establishing district-based elections:
 Before drawing a draft map or maps of the proposed boundaries of the districts, the City must hold at least two public hearings over a period of no more than 30 days, at which the public is invited to provide input regarding the composition of the districts.
 After all draft maps are drawn, the City must publish and make available for release at least one draft map and the potential sequence of the elections.  The City must hold at least two additional hearings over a period of no more than 45 days, at which the public is invited to provide input regarding the content of the draft map(s) and the proposed sequence of elections. The first version of a draft map must be published at least seven days before consideration at a hearing; and
WHEREAS, on February 27, 2020, the City Council adopted a Resolution of Intention, outlining the City Council’s intention to transition from at-large to district-based elections, specific steps the City Council will undertake to facilitate this transition, and an estimated time frame for doing so; and
WHEREAS, on February 27, 2020, the City Council also adopted criteria to guide the establishment of electoral districts consistent with legal requirements, including reasonable equal population and section 2 of the federal Voting Rights Act, as well as other concerns and considerations important to the City; and WHEREAS, on April 5, 2022 and May 10, 2022, the City Council conducted two (2) public hearings for the purpose of soliciting public input and comments on the composition of the proposed election districts; and
WHEREAS, the City Council also conducted public workshops on April 4, 6, 11, 12, and 13, 2022, at which time the City provided information on the districting process and informed the public on ways to become involved; and 712
WHEREAS, on May 14, 2022 and June 4, 2022, the City conducted four (4) additional public workshops, to instruct the public in the use of the online and paper mapping tools; and
WHEREAS, ten (10) draft election district maps were placed on the City’s public webpage for public review on June 13, 2022; and
WHEREAS, six (6) additional draft election district maps were placed on the City’s public webpage for public review on June 30, 2022; and
WHEREAS, on June 21, July 5, and July 19, 2022, the City Council conducted three (3) additional public hearings, at which time all interested persons were afforded an opportunity to provide input regarding the content of the draft maps and the proposed sequence of elections, and at which time the City Council did hear and consider such public input regarding the content of the draft maps and the proposed sequence of elections; and
WHEREAS, the purpose of this ordinance is to enact, pursuant to California Government Code section 34886, an ordinance providing for election of the Members of the City Council of the City of Ontario by-district in four (4) single-member districts as reflected in Exhibit A to this ordinance, and providing for the election of an elective Mayor of the City of Ontario to be elected City-wide; and
WHEREAS, pursuant to California Government Code section 34886, it is declared the change in the method of electing members of the City Council of the City of Ontario made by this ordinance is being made in furtherance of the purposes of the California Voting Rights Act of 2001 (Chapter 1.5 (commencing with Section 14025) of Division 14 of the Elections Code) and to implement the guarantees of Section 7 of Article I and of Section 2 of Article II of the California Constitution.

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

SECTION 1. A new Article 3 is hereby added to Title 2 of Volume 1 of the Ontario Municipal Code with the title “City Council Electoral System” to read as follows:
“Sec. 2-1-301 City Council Electoral System
(a) At-large election—Mayor. Pursuant to California Government Code section 34886, the mayor shall be voted on at-large. (b) City Council districts established. Four City Council districts are hereby established in the City of Ontario. The boundaries and identifying number of each district shall be as described on the Council District Map attached hereto as Exhibit “A” and incorporated herein by this reference. (c) Election of members of the City Council by district. 713
A. Following the effective date of the ordinance codified in this section and upon the commencement of “by district” elections in the order established in section (d) of this section 2-42, members of the City Council shall be elected “by district” as defined in California Government Code Section 34871 or any successor statute. Except for the Mayor, a person shall not be eligible to be elected to be a member of the City Council unless he or she is otherwise qualified as required by law and resided in the district, and both resided in the geographical area making up the district from which he or she is nominated to be elected and was a registered voter of the City of Ontario at the time nomination papers are issued to the candidate as provided for in Section 10227 of the California Elections Code. It is the intent of the City Council, in enacting this ordinance, that no term of any member of the City Council that commences on or prior to the effective date of the ordinance codified in this section shall be affected prior to its expiration date.

B. Registered voters signing nomination papers or voting for a member of the City Council shall be residents of the geographical area making up the district from which the member is to be elected.

C. The terms of the office of each member elected to the City Council, including the Mayor, shall remain four years. (d) Commencement of district elections. It is the intent of the City Council, in enacting this ordinance, that this section shall not affect any term of office in existence or commencing on or before the effective date of the ordinance codified in this section. Commencing with the general municipal election in November of 2024 and thereafter, the voters in districts ______ and ______ shall elect members of the City Council by district shall be elected at large for full four-year terms. At the general municipal election in 2026 and thereafter, the voters in districts _____ and ________ shall elect members of the City Council and the Mayor by district for full four-year terms.
(e) Adjustment of boundaries.

A. Pursuant to Elections Code Section 21601, as it may be amended, the City Council shall, by ordinance or resolution, adjust the boundaries of any or all of the districts following each decennial federal census. Using the census as a basis, the City Council shall adjust the boundaries so that the districts shall be as nearly equal in population as practicable and in compliance with all applicable provisions of law. Any adjustment of district boundaries shall be made by ordinance or resolution, adopted by the City Council before the first day of November of the year following the year in which each decennial federal census is taken. Prior to the public hearing 714
approving the adjustment of the district boundaries, the City Council shall hold at least one public hearing on the proposed district boundaries as required by Election Code Section 21607.

B. At the time of any annexation of territory to the City, the City Council shall designate, by resolution adopted by a vote of at least a majority of the City Council, the contiguous district to which the annexed territory shall be a part and shall amend the district boundaries if necessary in accordance with Election Code Section 21603, as it may be amended.

C. Pursuant to Elections Code Section 21606, the term of office of any Council member who has been elected and whose term of office has not expired shall not be affected by any change in the boundaries of the district from which he or she was elected. At the first election for Council following adjustment of the boundaries of the districts, a person meeting the requirements of Government Code Section 34882 shall be elected to the City Council for each district under the readjusted district plan that has the same district number as a district whose incumbent’s term on the Council is due to expire. (f) Implementation. If necessary to facilitate the implementation of this Ordinance, the City Clerk is authorized to make technical adjustments to the district boundaries that do not substantively affect the populations in the districts, the eligibility of candidates, or the residence of elected officials within any district. The City Clerk shall consult with the City Manager and City Attorney concerning any technical adjustments deemed necessary and shall advise the City Council of any such adjustments required in the implementation of the districts.”
SECTION 2. Effective Date. This Ordinance shall be become effective thirty (30) days after its adoption.

SECTION 3. Inconsistencies. To the extent the terms and provisions of this Ordinance may be inconsistent or in conflict with the terms or conditions of any prior City ordinance, motion, resolution, rule or regulation government the same subject, the terms of this Ordinance shall prevail with respect to the subject matter thereof.

SECTION 4. Interpretation. In interpreting this Ordinance or resolving any ambiguity, this Ordinance shall be interpreted in a manner that effectively accomplishes its state purposes.

SECTION 5. CEQA. Pursuant to Section 15320 of the Guidelines for the Implementation of the California Environmental Quality Act (“CEQA”), further review under CEQA is not required because the City Council action in establishing district-based elections consists of a change in the organization or reorganization of a local governmental agency where the change does not change the geographical area in which previously existing powers are exercised. Therefore, the City Council finds that it can be 715
seen with certainty that there is no possibility that this action will result in any environmental effect. The City Clerk is hereby directed to file a Notice of Exemption with the County Clerk within three (3) days following the date of this Ordinance.

SECTION 7. Severability. If any section, subsection, subdivision, sentence, clause phrase, or portion of this Ordinance is, for any reason, held to be invalid or unconstitutional by the decision of any court or competent jurisdiction, then such decision shall not affect the validity of the remaining portions of this Ordinance. The City Council of the City of Ontario hereby declares it would have adopted this Ordinance and each section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.

SECTION 8. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
716

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

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

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

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

SHEILA MAUTZ, CITY CLERK
(SEAL)
717
EXHIBIT “A”

ELECTION DISTRICT MAPS
718
Department: Investments & Revenue Resources
Prepared By: Nicole Phillips
Staff Member Presenting:

Armen Harkalyan, Executive Director of Finance
Reviewed By: Cecilia House, Armen Harkalyan
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 29
SUBJECT:

A PUBLIC HEARING TO CONSIDER THE PROPOSED CHANGES TO THE RATE AND

METHOD OF APPORTIONMENT OF THE EXISTING SPECIAL TAX FOR COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES), AND A PUBLIC HEARING TO CONSIDER THE AMENDMENT OF RESOLUTION NO. 2017- 124 TO INCREASE THE MAXIMUM AGGREGATE AMOUNT OF BONDED
INDEBTEDNESS THAT COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH-FACILITIES) IS AUTHORIZED TO INCUR

CITY OF ONTARIO
Agenda Report
July 19, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council consider and:

A
.

Adopt a
R
esolution calling a special election for proposed changes to the Rate and Method of Apportionment (the "RMA") of the existing Special Tax of City of Ontario Community Facilities District No.
3 5 (Countryside Phase 2 South-Facilities
),
B
.

Adopt a Resolution declaring results of the special election, determining that changes to the Rate and Method of Apportionment of the existing Special Tax of City of Ontario Community Facilities District No.
35 (Countryside Phase 2 South-Facilities)
are lawfully authorized and
directing recording of an amendment to Notice of Special Tax Lien, C
.

Introduce and waive further reading of an Ordinance amending and restating Ordinance No. 3082 levying special taxes within City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities).

D
.

Adopt a Resolution deeming it necessary to amend Resolution No. 2017-124 in order to increase the maximum aggregate amount of bonded indebtedness that Community Facilities District No. 35 (Countryside Phase 2 South-Facilities) is authorized to incur; E
.

Adopt a Resolution calling a special election for Community Facilities District No. 35 (Countryside Phase 2 South-Facilities); and
F
.

Adopt a Resolution declaring the results of the special election.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in 719
Ontario Ranch
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT:

The use of Mello-Roos financing for facilities in the residential development of the Countryside Phase 2 South-Facilities project is estimated to generate approximately $45 million in bond proceeds to be used to fund a portion of the public infrastructure improvements needed to serve the project. Mello-Roos bonds are not a direct obligation of the City and are paid from special taxes levied on each taxable parcel in the district; therefore, there is no fiscal impact to the General Fund from the issuance of Mello Roos bonds. City Council approval will be required in future years to process annual special tax levies.

BACKGROUND & ANALYSIS:

The Mello-Roos Community Facilities Act of 1982 provides local government the authority to establish a community facilities district for the purpose of financing various kinds of public infrastructure facilities. In October, 2017, the City established Community Facilities District No. 35 (Countryside Phase 2 South-Facilities) to finance public improvements for the project. The Countryside Phase 2 South-Facilities project addresses the development of approximately 34.22 gross acres located generally east of the Cucamonga Creek Channel, west of Archibald Avenue, south of Chino Avenue, and north of Schaefer Avenue. At build out, the development is projected to include 235 single-family detached units .

The developer, Lennar Homes of California, LLC (Lennar), has provided a written petition to the City Council to commence change proceedings pursuant to the Act to change the Rate and Method of Apportionment (RMA) of the existing special tax levied within the Community Facilities District to reflect recent movements in the housing market which may affect the estimated home price of for- sale units within the Community Facilities District. In consideration of such petition, City staff requested a second price point study to be performed by Empire Economics, the City’s Price Point Study and Market Absorption Consultant. The City's study was concluded in January 2022 and found that estimated home prices for market comparables had increased approximately 40.2% for the development, as compared to the initial price point study performed in July 2017.

At the City Council meeting on June 7, 2022, the City Council formally accepted the written petition from Lennar, and approved a Resolution of Consideration, Resolution No. 2022-017, setting the public hearing date to July 19, 2022.; Resolution No. 2022-017 considers the proposed changes to the Rate and Method of Apportionment of the Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities).

In accordance with the requirements of the
Resolution of Consideration, the City Clerk has published a notice of the time and place of this hearing pursuant to Section 53322 of the California Government Code at least seven days before the hearing, and the City’s special tax consultant has prepared the Amended and Restated Rate and Method of Apportionment; which reflects the overall estimated price point increase of 40.2%.

Under the Amended and Restated RMA, certain special tax rates within Community Facilities District No. 35 (Countryside Phase 2 South-Facilities) would be increased.

Attached for consideration is the Amended and Restated RMA, the terms of which are consistent with the City Council's adopted Mello-Roos Local Goals and Policies (Resolution No. 2006-021) in all respects. Also attached are five Resolutions and an Ordinance for consideration. The first 720
Resolution calls for a special election on the proposition to change the RMA to be held on July 19, 2022. The second Resolution declares the results of the special election and includes a statement from the City Clerk as to the canvass of ballots, and directs the recording of an Amendment to the Notice of Special Tax Lien. The ordinance amends and restates Ordinance No. 3082 levying special taxes within the Community Facilities District and reflects the updates included in the Amended and Restated RMA. The third R
esolution deems it necessary to amend Resolution No. 2017-124 in order to increase the maximum aggregate amount of bonded indebtedness that the district is authorized to incur from $27,000,000 to $45,000,000. The fourth Resolution calls for a special landowner election be held on July 19, 2022 to approve the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur. The fifth Resolution declares the results of the special election, determining that the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur shall be increased from $27,000,000 to $45,000,000. 721
RESOLUTION NO. ________

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

CALIFORNIA, CALLING A SPECIAL ELECTION FOR PROPOSED

CHANGES TO THE RATE AND METHOD OF APPORTIONMENT OF THE

EXISTING SPECIAL TAX OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH - FACILITIES).

WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”) has previously established City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”); and WHEREAS, on June 7, 2022, the City Council adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Consideration to Change the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Resolution of Consideration”) proposing changes to the rate and method of apportionment of the special tax (the “Special Tax”) levied within the Community Facilities District so as to increase certain of the Special Tax rates thereunder and setting the date for a public hearing to be held on such proposed changes; and WHEREAS, pursuant to the Resolution of Consideration, notice of said public hearing was published in the Inland Valley Daily Bulletin , a newspaper of general circulation published in the area of the Community Facilities District, in accordance with the Act; and
WHEREAS, on this date, the City Council opened, conducted and closed said public hearing; and
WHEREAS, at the hearing, the testimony of all persons for or against the proposed changes to the rate and method of apportionment of the Special Tax was heard; and WHEREAS, written protests against the proposed changes to the rate and method of apportionment of the Special Tax tax were not made or filed at or before said hearing by 50% or more of the registered voters, or six registered voters, whichever is more, residing within the Community Facilities District, or the owners of one-half or more of the area of land in the territory included in the Community Facilities District and not exempt from the Special Tax; and
WHEREAS, pursuant to the provisions of the Resolution of Consideration, the proposition to change the rate and method of apportionment of the Special Tax is to be submitted to the qualified electors of the Community Facilities District as required by the Act; and
WHEREAS, the City Council desires to designate the City Clerk of the City (the “City Clerk”) as the election official for the special election provided for herein; and 722
WHEREAS, there has been filed with the City Clerk of the City a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory included in the Community Facilities District as of June 16, 2022, and, accordingly, that 12 or more persons have not been registered to vote within the territory included in the Community Facilities District for each of the 90 days preceding the close of said public hearing; and
WHEREAS, there has been filed with the City Clerk consents and waivers of all of the landowners of record in the Community Facilities District waiving any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said special election, consenting to the holding of said special election on July 19, 2022 and waiving any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act; and
WHEREAS, the City Clerk has concurred in said waivers and has concurred in holding said special election on July 19, 2022.

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

SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.

SECTION 2. The proposed changes to the rate and method of apportionment of the Special Tax are modifications that increase certain of the Special Tax rates thereunder. The proposed changes are reflected in the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) Amended and Restated Rate and Method of Apportionment of Special Tax (the “Restated Rate and Method”) attached hereto as Exhibit A, which is by this reference incorporated herein.

SECTION 3. The proposed changes to the rate and method of apportionment of the Special Tax have not been precluded by majority protest pursuant to Section 53338 of the Act.

SECTION 4. Pursuant to Section 53338 of the Act, the proposition to change the rate and method of apportionment of the Special Tax so as to increase certain of the Special Tax rates thereunder, as reflected in the Restated Rate and Method, shall be submitted to the qualified electors of the Community Facilities District at an election called therefor as provided herein.

SECTION 5. The City Clerk is hereby designated as the official to conduct said election.

SECTION 6. The City Council hereby finds and determines that no persons were registered to vote within the territory included in the Community Facilities District as of June 16, 2022, and that 12 or more persons have not been registered to vote within the territory included in the Community Facilities District for each of the 90 days preceding the close of the public hearing heretofore held by the City Council on the proposed changes to the rate and method of apportionment of the Special Tax. Accordingly, pursuant to Section 53326 of 723
the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the Special Tax.

SECTION 7. The City Council hereby finds and determines that the qualified electors of the Community Facilities District have unanimously consented (a) to the waiver of any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said election, (b) to the holding of said election on July 19, 2022, and (c) to the waiver of any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act. The City Council herby finds and determines that the City Clerk has concurred in said waivers and has concurred in holding said election on July 19, 2022.

SECTION 8. The City Council hereby calls a special election to submit to the qualified electors of the Community Facilities District the proposition to change the rate and method of apportionment of the Special Tax so as to increase certain of the Special Tax rates thereunder, as reflected in the Restated Rate and Method, which election shall be held at 303 East B Street, Ontario, California, on July 19, 2022. The City Council has caused to be provided to the City Clerk, as the official to conduct said election, the Resolution of Consideration, a certified map of sufficient scale and clarity to show the boundaries of the Community Facilities District, and a sufficient description to allow the City Clerk to determine the boundaries of the Community Facilities District.

The voted ballots shall be returned to the City Clerk not later than 7:30 p.m. on July 19, 2022; provided, however, that if all of the qualified electors have voted prior to such time, the election may be closed with the concurrence of the City Clerk.

SECTION 9. Pursuant to Section 53326 of the Act, the election shall be conducted by mail or hand-delivered ballots pursuant to Section 4000 et. seq. of the California Elections Code. Except as otherwise provided in the Act, the provisions of law regulating elections of the City, insofar as they may be applicable, will govern the election.

SECTION 10. The form of the ballot for said election is attached hereto as Exhibit B and by this reference incorporated herein, and such form of ballot is hereby approved. The City Clerk shall cause to be delivered to each of the qualified electors of the Community Facilities District a ballot in said form. Each ballot shall indicate the number of votes to be voted by the respective landowner to which it pertains.

Each ballot shall be accompanied by all supplies and written instructions necessary for the use and return of the ballot. The identification envelope for return of the ballot shall be enclosed with the ballot, shall have the return postage prepaid, and shall contain (a) the name and address of the landowner, (b) a declaration, under penalty of perjury, stating that the voter is the owner of record or the authorized representative of the landowner entitled to vote and is the person whose name appears on the identification envelope, (c) the printed name, signature and address of the voter, (d) the date of signing and place of execution of the declaration described in clause (b), above, and (e) a notice that the envelope contains an official ballot and is to be opened only by the canvassing board. 724
Analysis and arguments with respect to the ballot proposition are hereby waived, as provided in Section 53327 of the Act.

SECTION 11. The City Clerk shall accept the ballots of the qualified electors in the office of the City Clerk at 303 East B Street, Ontario, California, to and including 7:30 p.m. on July 19, 2022, whether said ballots be personally delivered or received by mail.

The City Clerk shall have available ballots that may be marked at said location on the election day by said qualified electors.

SECTION 12. All actions heretofore taken by the officers, employees and agents of the City with respect to the proposed changes to the rate and method of apportionment of the Special Tax, or in connection with or related to any of the documents referred to herein, are hereby approved, confirmed and ratified.

SECTION 13. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 14. This Resolution shall take effect immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
725

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
726

EXHIBIT A
CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 35 (COUNTRYSIDE PHASE 2 SOUTH - FACILITIES) AMENDED AND RESTATED RATE AND METHOD

OF APPORTIONMENT OF SPECIAL TAX
727

EXHIBIT B

OFFICIAL BALLOT

CITY OF ONTARIO
July 19, 2022

SPECIAL ELECTION
This ballot is for a special, landowner election. The number of votes to be voted pursuant to this ballot is ____.

INSTRUCTIONS TO VOTERS:

To vote on the measure, mark a cross (+ or X) in the voting square after the word “YES” or after the word “NO”. All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly mark, tear, or deface this ballot, return it to the City Clerk of the City of Ontario and obtain another.

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 35
(COUNTRYSIDE PHASE 2 SOUTH - FACILITIES)
MEASURE SUBMITTED TO VOTE OF VOTERS: Shall
the rate and method of apportionment of the special tax levied within City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) be changed so as to increase certain of the special tax rates thereunder, all as specified in the Resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling A Special Election for Proposed Changes to the Rate And Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities),” adopted by the City Council of the City of Ontario on July 19, 2022?
Yes:

No:

728

City of Ontario CFD No. 35 1 May 16, 2022

EXHIBIT A

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 35
(COUNTRYSIDE PHASE 2 SOUTH – FACILITIES)

AMENDED AND RESTATED

RATE AND METHOD OF APPORTIONMENT OF SPECIAL TAX

A Special Tax shall be levied on all Assessor’s Parcels in the City of On tario Community Facilities District No. 35 (Countryside Phase 2 South – Facilities) (“CFD No. 35”) and collected each Fiscal Year , commencing in Fiscal Year 20 18-19, in an amount determined by the City Council of the City of Ontario through the application of the Rate and Method of Apportionment, as described below. All of the real property in CFD No. 35, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent, and in the manner herein provided.

A. DEFINITIONS

The terms hereinafter set forth have the following meanings:

“Acre” or “Acreage” means the land area of an Assessor’s Parcel as shown on an Assessor’s Parcel Map, or if the land area is not shown on an Assessor’s Parcel Map, the land area shown on the appl icable Final Subdivision Ma p, parcel map, condominium plan, or other recorded County map.

“Act” means the Mello -Roos Community Facilities Act of 1982, as amended, being Chapter 2.5 of Part 1 of Division 2 of Title 5 of the California Government Code.

“Administrative Expens es” means the follow ing actual or reasonably estimated costs directly related to the administration of CFD No. 35: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or CFD No. 35 or both); the costs of collecting the Special Taxes (whether by the County or otherwise); the cost s of remitting the Special Tax es to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it u nder the Indenture; the c osts to the City or CFD No. 35 of complying with arbitrage rebate requirements; the costs to the City or CFD No. 35 of complying with City, CFD No. 35, or obligated persons disclosure requirements associated with applicable f ederal and state securities laws and of the Act; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City or CFD No. 35 related to the analysis and reduction, if any, of the Special Tax on Single Family Property in accordance with Section C.1 herein; the costs of the City or CFD No. 35 related to an appeal of the Special Tax; the costs associated with the release of fun ds from any escrow account; the City’s ad ministration fees a nd third party expenses; the costs of City staff time and reasonabl e overhead relating t o CFD No. 35; and amounts estimated or advanced by the City or CFD No. 35 for any other 729

City of Ontario CFD No. 35 2 May 16, 2022
administrative purposes of the CFD , including attorney’s fees and other costs re lated to commencing and pursuing to completion any foreclosure of delinquent Special Taxes.

“Assessor’s Parcel” means a lot or parcel shown in an Assessor’s Parcel Map with an assigned Assessor’s Parcel Number.

“Assessor’s Parcel Map ” means an official m ap of the Assessor of the County designating parcels by Assessor’s Parcel Number.

“Assessor’s Parcel Number” means, with respect to an Assessor’s Parcel, that number assigned to such Assessor’s Parcel by the County for purposes of identification.

“Assigned Special Tax ” means the Special Tax for each Land Use Class of Developed Property, as determined in accordance with Section C.1.a.2 below.

“Backup Special Tax ” means the Special Tax for each Land Use Class of Developed Property, as determined in accordance with Section C.1.a.3 below.

“Bonds” means any bonds or other debt (as defined in Section 53317(d) of the Act) issued by CFD No. 35 under the Act and payable from Special Taxes.

“Buildable Lot” means an individual lot, within a Fina l Subdi vision Map or an area expected by CFD No. 35 to become Final Mapped Property, such as the area within a Tentative Tract Map , for which a building permit may be issued without further subdivision of such lot.

“CFD Administrator ” means an official of the C ity responsible for determining t he Special Tax Requirement, providing for the levy and collection of the Special Taxes , and performing the other duties provided for herein.

“CFD No. 19” means City of Ontario Community Facilities District No. 19 (Countryside Phase 1 – Services).

“CFD No. 35” means City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South – Facilities).

“City” means the City of Ontario, California.

“City Council” means the City Council of the City, acting as the legislative body of CFD No. 35.

“Contractual Impositions ” means (a) a voluntary contractual assessment establ ished and levied on an Assessor ’s Parcel pursuant to Chapter 29 of Pa rt 3 of Division 7 of the California Streets and Highways Code (commencing with Section 5898.10 et seq. ), as amended from time to time, (b) a special tax established and levied on an Asse ssor’s Parcel pursuant to Section 53328.1 of the Ca lifornia Government Code and related provisions of the Act, as amended from time to time, and (c) any other fee, charge, tax, or assessment established and levied on an individual Assessor ’s Parcel pursuan t to a 730

City of Ontario CFD No. 35 3 May 16, 2022
contractual agreement or other voluntary c onsent by the owner thereof (e.g., property owner association assessments).

“County” means the County of San Bernardino.

“Designated Buildable Lot” means a Buildable Lot for which a bui lding permit has not been issued by the City as of the date of calculation of the Backup Special Tax.

“Developed Property” means for each Fiscal Year, all Taxable Property, exclusive of Final Mapped Property, Taxable Property Owner Ass ociation Property, a nd Taxable Public Pr operty, for which a building permit or other applicable permit for new construction was issued after January 1, 2017, and before May 1 of the prior Fiscal Year.

“Expected Residential Lot Count” means 235 Buildable L ots of Single Family Property or, as det ermined by the CFD Administrator, the number of Buildable Lots of Single Family Property based on the most recent Tentative Tract Map(s) or mos t recently recorded Final Subdivision Map(s) or modified Final Subdivision Map(s).

“Facilities” means the public facilities authorized to be financed, in whole or in part, by CFD No. 35.

“Final Mapped Property” means, for each Fiscal Year, all Taxable Pr operty, exclusive of Developed Property, Taxable Property Owner Associati on Property, and Taxable Public Property, which as of January 1 of the previous Fiscal Year was located within a Final Subdivision Map. The term Final Mapped Property shall include any parcel map or Final Subdivision Map, or portion thereof , that creates individual lots for which a building per mit may be issued, including P arcels that are designated as a remainder Parcel (i.e., one where the size, location, etc., precludes any further subdivision or taxable use).

“Final Subdivision Map ” means a final tract map, parcel map, o r lot line adjustmen t approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq.) or a condominium plan recorded in accordance with California Civil Code Section 4285 that, in either case, creates indivi dual lots for which building permits may be issued without further subdivision.

“Fiscal Year” means the period starting July 1 and ending on the following June 30.

“Indenture” means the indenture, fiscal agent agreement, resolution, or other instrument pursuant to which Bonds are issued, as mo dified, amended, and/or supplemented from time to time.

“Land Use Class” means any of the classes listed in Table 1 below.

“Lower Income Household Welfare Exemption Property” means, for each Fiscal Year, an Assessor’s Par cel wit hin the boundaries of CFD No. 35 that is subject to a welfare exemption under subdivision (g) of Section 214 of the California Revenue and 731

City of Ontario CFD No. 35 4 May 16, 2022
Taxation Code ( or any successor stat ute), as indicated in the most recent County assessor’s roll finalized prior to such Fiscal Year.

“Maximum Special Tax ” means, with respect to an Assessor’s Parcel of Taxable Property, the Maximum Special Tax determined in accordance with Section C.1 below that can be levied in any Fiscal Year on such Assessor’s Parcel of Taxable Property.

“Minimum Sale Pric e” means the minimum price at which Units of a given Land Use Class have sold or are expected to be sold in a normal marketing en vironment and shall not include prices for such Units that are sold at a discount to expected sales prices for the purpose of stimulating the initial sales activity with respect to such Land Use Class.

“Non-Residential Property ” means all Assessor’s Parce ls of D eveloped Prope rty for which a building permit was issued by the City permitting the construction of one or more non-residential structures or facilities.

“Other Residential Property” means all Assessor’s Parcels of Develope d Property for which a building permit was issued by the City for purposes of constructing Units, excluding Single Family Attached Property and Single Family Detached Property.

“Outstanding Bonds” means all Bonds which are outstanding under and in accorda nce with the provisions of the Indenture.

“Price Point Consultant” means any consultant or firm of s uch consultants selected by CFD No. 35 that (a) has substantial experience in performing price point studies for residential units within community facilities districts established under the Act or otherwise estimating or confirming pricing for residential units in such community facilities districts, (b) has recognized expertise in analyzing economic and real estate data that relates to the pricing of residential units in such community facilities districts, (c) is in fact independent a nd not under the control of CFD No. 35 or the City, (d) does not have any substantial interest, direct or indirect, with or in (i) CFD No. 35, (ii) the City, (iii) any owner of real property in CFD No. 35, or (iv) any real property in CFD No. 35, and (e) is not connected with CFD No. 35 or the City as an offi cer or employee thereof, but who may be regularly retained to make reports to CFD No. 35 or the City.

“Price Point Study” means a price point study or a letter updating a previous price point study prepared by the Price Point Consultant pursuant to Section C herein.

“Property Owner Association Property ” means, for each Fiscal Year, any property within the boundaries of CFD No. 35 that was owned by a property owner asso ciation, including any master or sub-association, as of January 1 of the prior Fiscal Year.

“Proportionately” means (a) for Developed Property in the first step of Section D below, that the ratio of the actual Special Tax levy to the Maximum Special Tax is equal for all Assessor’s Parcels of Developed Property; however, for Developed Propert y in the fourth step of Section D below, Proportionately means that the amount of the increase above the Assigned Special Tax , if necessary, is eq ual for all Assessor’s Parcels of Developed Property, except that if the Backup Special Tax limits the increase on any 732

City of Ontario CFD No. 35 5 May 16, 2022
Assessor’s Parcel(s) , then the amount of the increase shall be equal for th e remaining Assessor’s Parcels; (b) for Final Mapped Property, that the ratio of the actual Special Tax levy to the Maximum Special Tax is equal for all Assessor’s Parcels of Final Mapped Property; (c) for Undeveloped Property, that the ratio of the actual Special Tax levy to the Maximum Special Tax is equal for all Asse ssor's Parcels of Undeveloped Property; (d ) for Taxable Property Owner Association Property, that the r atio of the actual Special Tax levy to the Maximum Special Tax is equal for all Assesso r’s Parcels of Taxable Property Owner Association Property; and (e ) for Taxable Publ ic Property, that the ra tio of the actual Special Tax le vy to the Maximum Special Tax is equal for all Assessor’s Parcels of Taxable Public Property.

“Public Property” means, for each Fiscal Year, property within the boundaries of CF D No. 35 that is (a) owned by, irrevocably offered to, or dedicated to the federal government, the State, the County, the City, or any local government or other public agency or (b) encumbered b y an easement for pu rposes of public or utility righ t-of-way that makes impractical its use for any purpose other than that set forth in such easement , provided that any pr operty leased by a public agency to a private entity and subject to taxation under Section 53340.1 of the Act shall be taxed and classified accord ing to its use.

“Rate and Method of Apportionment ” means this Amended and Restated Rate and Method of Apportionment of Special Tax.

“Residential Floor Area ” means all of the Square F ootage of living area within the perimeter of a Unit, not incl uding any carport , walkway, gara ge, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be as set forth in the building permit(s) issued for such Assessor’s Parcel , or as set forth in other official records maintained by the City’s Building Department or other appropriate means selected by CFD No. 35. The actual Square F ootage shall be round ed up to the next whole square f oot. Once such det ermination has been made for a n Assessor’s Parcel, it shall remain fixed in all future Fiscal Years unless an appeal pursuant to Section F below is approved that results in a change in the actual Square Footage.

“Services” means the services authorized to be financed, in whole or in part, by CFD No.

35. “Single Family At tached Propert y” means all Asses sor’s Parcels of Developed Property for which a building permit or use permit was issued for construction of a residential structure consisting of two or more Units that share common walls, have separate Assessor’s Parcel Nu mbers assigned to them (except f or a duplex unit, which may share an Assessor’s Parcel with another duplex unit), and may be purchased by individual homebuyers (which shall still be the case even if the Units are purchased and subsequently offered for rent by the owner of the Unit), incl uding such residential structures that meet the statutory definition of a condominium contained in California Civil Code Section 4125.

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City of Ontario CFD No. 35 6 May 16, 2022
“Single Family Detached Property ” means all Assessor’s Parcels of Developed Property for which a bu ilding permit was issued for con struction of a Unit , on one legal lot, that does not share a common wall with another Unit.

“Single Family Property” means all Assessor’s Parcels of Single Family Attached Property and Single Family Detached Property.

“Special Tax” means the special tax authorized by the qualified electors of CFD No. 35 to be levied within the boundaries of CFD No. 35.

“Special Tax Requirement” means for any Fiscal Year that amount required, after taking into account available amou nts held in the funds and accounts established under the Indenture, for CFD No. 35 to: (i) pay debt service on all Outstanding B onds which is due in the calendar year that commences in such Fiscal Year ; (ii) pay periodic costs on the Bonds, including, but not limited to , credit enhancement and rebate payments on the Bonds; (iii) pay Administrative Expenses; (iv) provide any amounts required to establish or replenish any reserve fund for the Bonds; (v) pay directly for acquisition or construction of Facilities, or the cost of Ser vices, to the extent that the inclusion of such amounts does not increase the Special Tax l evy on Final Ma pped Property or Undeveloped Property; (vi) provide an amount equal to Special Tax delinquencies based on the histor ical delinquency rat e for the Special Tax as determi ned by the CFD Administrator.

“Square Footage ” or “Sq. Ft.” means the floor area square footage reflected on the original construction building permit , or as set forth in other official records maintaine d by the Cit y’s Building Department or other appropr iate means s elected by CFD No. 35, issued for construction of Single Family Property, Ot her Residential Property, or Non-Residential Property , plus any square f ootage subsequently added to a building of Non-Residential Property after issuance of a building permit for expansion or renovation of such building.

“State” means the State of California.

“Taxable Property” means, for each Fiscal Year, all of the Assessor’s Parcels within the boundaries of CFD No . 35 that are not ex empt from the Special Tax pursua nt to law or Section E below.

“Taxable Property Owner Association Property ” means, for each Fiscal Year, all Assessor’s Parcels of Property Owner Association Property that are not exempt from the Special Tax pursuant to Section E below.

“Taxable Public Property” means, for each Fiscal Year, all Assessor’s Parcels of Public Property that are not exempt from the Special Tax pursuant to law or Section E below.

“Tentative Tract Map” means a map: (i) showin g a proposed subdivision of an Assessor’s Parcel(s) and the conditions pertaining thereto; (ii) that may or may not be based on a detailed survey; and (iii) that is not recorded by the County to create legal lots.

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City of Ontario CFD No. 35 7 May 16, 2022

“Total Tax Burden ” means, for a Unit within a Land U se Class, for the Fiscal Year in which Total Tax Burden is being calculated, the sum of (a) the Assigned Special Tax for such Land Use Class for such Fiscal Year, plus (b) the CFD No. 19 s pecial tax for such Land Use Class for such Fisc al Year, plus ( c) th e ad valorem property taxes, special assessments, special taxes for any other overlapping comm unity facilities districts, and any other governmental fees , charges (ot her than fees or charges for services such as sewer and trash) , taxes , and assessments (wh ich do not inc lude Contractual Impositions) collected by the County on ad valorem tax bills an d that the CFD Administrator estimates would be levied or impose d on such Unit in such Fiscal Year if the residential dwelling unit thereon or therein had been co mpleted and sold, a nd was subject to such fees, charges, taxes, and assessments in such Fiscal Year.

“Trustee” means the trustee or fiscal agent under the Indenture.

“TTM 17449” means Tentative Tract Map No. 17449, the area of which is located within CFD No. 35.

“TTM 17450” means Tentative Tr act Map No. 17450, the area of which is loc ated within CFD No. 35.

“Undeveloped Property” means, for each Fiscal Year, all Taxable Property not classified as Developed Property, Final Mapped Prope rty, Taxable Public Property, or Taxable Property Owner Association Property.

“Unit” means an individual single -family detached or atta ched home, townhome, condominium, apartment, or other residential dwelling unit, including each separate living area within a half-plex, duplex, triplex, fourplex, or other residential structure.

B. ASSIGNMENT TO LAND USE CATEGORIES

Each Fiscal Year, beginning with Fiscal Year 201 8-19, all Taxable Property within CFD No. 35 shall be classified as Developed Property, Final Mapped Property, Taxable Public Property, Taxable Property Owner Association Pr operty, or Undeveloped Property and shall be subject to Special Taxes in accordance with the Rate and Method of Apportionment as determined pursuant to Sections C and D below. Assessor’s Parcels of Single Family Property shall be assi gned to Land Use Classes 1 through 7, as listed in Table 1 below based on t he Residential Floor Area of the Units on such Assessor’s Parcels. Other Residential Property shall be assigned to Land Use Class 8, and No n- Residential Property shall be assigned to Land Use Class 9.

C. MAXIMUM SPECIAL TAX

1. Special Tax

At least 30 days prior to the issuance of the first series of Bonds, the Assigned Special Tax on Developed Property (set forth in Table 1 below) shall be analyzed in accordance with and subject to the conditions se t forth in this Section C. At 735

City of Ontario CFD No. 35 8 May 16, 2022
such time, CFD No. 35 shall select and engage a Price Point Consultant and the CFD Administrator shall request the Price Point Consultant to prepare a Price Point Study setting forth th e Minimum Sale Price of Units within each Land Use Class. If based upon such Price Point Study the CFD Adminis trator calculates that the Total Tax Burden applicable to Units within one or more Land Use Classes of Single Family Proper ty to be constructed within CFD No. 35 exceeds

1.95% of the Mi nimum Sale Price of such Units , the Assigned Special Tax shall be reduced to the extent necessary to cause the Total Tax Burden that shall apply to Units within such Land Use Class(es) not to exceed 1.95% of the Mi nimum Sale Price of such Units.

Each Assigned Special Tax reduction for a Land Use Class shall be calculated by the CFD Administrator separately, and it shall not be required that such reduction be proportionate among Land Use Classes. In connection with any reduction i n the Assigned Special Tax , the Backup Special Tax shall also be reduced by the CFD Administrator based on the percentage reduction in Maximum Special Tax revenues within the Tentative Tract Map area(s) where the Assigned Special Tax reductions occurred. Upon determining the reduc tions, if any, in the Assigned Special Tax and Backup Special Tax requi red pur suant to this Section C, the CFD Administrator shall complete the Certificate of Modification of Special Tax substantially in the form a ttached hereto a s Exhibit A (the “Certific ate of Modification”), shall execute such completed Certificate of Modi fication, and shall deliver such executed Certificate of Modification to CFD No. 35. Upon receipt thereof, if in satisfactory form, CFD No. 35 shall execute such Certificate of Modific ation. The reduced Assigned Special Tax and Backup Special Tax specified in s uch Certificate of Modification shall become effective upon the execution of such Certificate of Modification by CFD No. 35.

The Special Tax reductions required pursuant to this section shall be reflected in an amended notice of Special Tax lien , which CFD No. 35 shall cause to be recorded with the County Recorder as soon as practicable after execution of the Certificate of Modification by CFD No. 35. T he reductions in this sect ion apply to Single Family Property, but not to Other Residential Prope rty or Non- Residential Property.

a. Developed Property

1) Maximum Special Tax

The Maximum Special Tax that may be levied in any Fiscal Year for each Assessor’s Parcel classified as Devel oped Property shall be the greater of (i) the amount derived by applic ation of the Assigned Special Tax or (ii) the amount derived by application of the Backup Special Tax. The Maximum Special Tax shall not increase in future yea rs, other than as calculat ed pursuant to Section C.1.a.3 below.

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City of Ontario CFD No. 35 9 May 16, 2022
2) Assigned Special Tax

The Assigned Special Tax that may be levied in any Fiscal Year for each Land Use Class is shown below in Table 1.

TABLE 1
ASSIGNED SPECIAL TAX – DEVELOPED PROPERTY

3) Backup Special Tax

The Backup Special Tax shall be $3,846 per Unit f or Single Family Property. However, if the Expected Residential Lot Count does not equal 235 for Single Family Property , and the City has not issued Bonds , then the Backup Special Tax for Designate d Buildable Lots of Single Family Proper ty shall be calcul ated according to the following formula:

Backup Special Tax = $903,846 ÷ Expected Residential Lot Count for Single Family Property

If any portion of a Final Subdivision Map, or any area expected by CFD No. 35 to become Final Map ped Property, such as the area within TTM 17449, TTM 17450, or a ny other Tentative Tract Map, changes any time after the City has issued Bonds, causing an adjustment to the number of Designated Buildable Lots, then the Backup Special Tax for all Designated Buildable Lots of Single Family Property subject to the change shall be calculated according to the following steps:

Step 1: Determine the total Backup Special Taxes that
could have been collected from Designated

Land
Use
Class

Description

Residential
Floor Area
(Square
Footage)

Assigned
Special Tax
1 Single Family Property < 1,501 $3,342 per Unit
2 Single Family Property 1,501 – 1,700 $3,454 per Unit
3 Single Family Property 1,701 – 1,900 $3,626 per Unit
4 Single Family Property 1,901 – 2,100 $3,849 per Unit
5 Single Family Property 2,101 – 2,300 $3,935 per Unit
6 Single Family Property 2,301 – 2,500 $4,073 per Unit
7 Single Family Property > 2,500 $4,262 per Unit
8 Other Residential Property $52,912 per Acre
9 Non-Residential Property $52,912 per Acre
737

City of Ontario CFD No. 35 10 May 16, 2022
Buildable Lots of Single Family Property prior to
the Final Subdivision Map or expected Final
Mapped Property change.

Step 2: Divide the amount determined i n Step 1 by the
number of Designated Bui ldable Lots of Single
Family Property that exists after the Final
Subdivision Map or expected Final Mapped
Property change.

Step 3: Apply the amount determined in Step 2 as the
Backup Special Tax per Unit for Sin gle Family
Property.

The B ackup Special Tax for an Assessor’s Parcel shall not change once an Assessor’s Pa rcel is classified as Developed Property.

b. Final M apped Property, Taxable Public Property, Taxable Property Owner Association Property, and Undeveloped Property

The M aximum Special Tax fo r Final Mapped Property, Taxable Public Property, Taxable Propert y Owner Association Property, and Undeveloped Property shall be $52,912 per Acre, and shall not be subject to increase or reduction and, therefore, sha ll remain the same in ev ery Fiscal Year.

2. Multiple Land Use Classes on an Assessor’s Parcel

In some instances an Assessor’s Parcel of Developed Property m ay contain more than one Land Use Class. The Maximum Special Tax levied on such Assessor’s Parcel shall be the sum of the Maximum Special Tax for all Units of Single Family Property and Acres of Other R esidential Property and Non -Residential Property (based on the pro rata share of Square Footage between Other Residential Property and Non- Residential Property, acco rding to t he applicable building permits, Final Subdivision Map, parcel map, condominium pl an, or other recorded County map) located on that Assessor’s Parcel.

D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX

Each Fiscal Year, beginning with Fiscal Year 20 18-19, the CFD Administrator shall determine the Special Tax Requirement for such Fiscal Year. The Special Tax shall then be levied as follows:

First: If needed to satisfy the Special Tax Requirement, the Special Tax shall be levied Proportionately on e ach Assess or’s Parce l of D eveloped Property up to 100% of the applicable Assigned Special Tax;

738

City of Ontario CFD No. 35 11 May 16, 2022
Second: If additional monies are needed to sati sfy the Special Tax Requirement after the first step has been completed, then the Special Tax shal l be levied Pr oportionately on each Assessor’s Parcel of Final Mapped Property up to 100% of the Maximum Special Tax for Final Mapped Property;

Third: If additional monies are ne eded to satisfy the Special Tax Requirement after the first two steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor’s Parcel of Undeveloped Property up to 100% of the Maxi mum Special Tax for Undeveloped Property;

Fourth: If additional monies are needed to satisfy the Special Tax Requi rement after the first three steps have been completed, then the levy of the Special Tax on each Assessor’s Parcel of Developed Property whose Maximum Special Tax is determined through the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Special Tax for each such Assessor’s Parcel;

Fifth: If additional monies are needed to satisfy the Spe cial Tax Requirement after the first four steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor ’s Parcel of Taxable Property Owner Association Property up to the Maximum Special Tax for Taxable Property Owner Association Property;

Sixth: If additional monies are needed to satisfy the Special Tax Requirement after the first five steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor’s Parcel of Taxable Public Property up to the Maximum Special Tax for Taxable Public Property.

Notwithstanding the above, under no circumstances shall the Special Tax levied in any Fiscal Year on any Assessor’s Parcel of Single Family Proper ty or Other Residential Property fo r which an occupan cy permit for private residential use has been issued be increased as a result of delinquency or default by the owner or owners of any oth er Assessor’s Parcel or Asse ssor’s Parcels within CFD No. 35 by m ore than ten percent above the amount that would have been levied in that Fiscal Year had there never been any such delinquencies or defaults.

E. EXEMPTIONS

No Special Tax s hall be levied o n up to 2.44 Acres of Public Property and up to 14.12 Acres of P roperty Owner Association Property. Tax-exempt status will be assigned by the CFD Administrator in the chronological order in which property becomes Public Property or Property Owner Association Property.

Property Owner Association Property or Public P roperty that is not exempt from the Special Tax under this section shall be subject to the levy of the Special Tax and shall be taxed Proportionately as part of the f ifth or sixth step, respectively, in Section D above, up to 100% of the applicable Maximum Special Tax for Taxable Property Ow ner Association Property and Taxable Public Property. No Special Tax shall be levied in any Fiscal Year on Assessor ’s Parcels that have ful ly prepaid the S pecial Tax obligation pursuant to the formula set forth in Section H.
739

City of Ontario CFD No. 35 12 May 16, 2022

No Special Tax shall be levied on L ower Income Household Welfare Exemption Property; provided, however, tha t if, in any Fiscal Year, applicable l aw does not re quire that Lower Inc ome Ho usehold Welfare Exemption Property be exempt fr om som e portion, or all, of the Special Tax, such portion, or all, of the Special Tax shall be levied on such property in accordanc e with this Rate and Method of Apporti onment based on the Land Use Class to which the Assessor’s Parcel is assigned.

F. APPEALS

Any property owner may file a written app eal of the Special Tax with CFD No. 35 claiming that the amount or application of the Special Tax is not correct. T he appe al must be filed not later than one calendar year after having paid the Special Tax that is disputed, and the appellant must be current in all payments of Special Taxes. In addition, during the term of the appeal process, all Special Taxes levied m ust be paid on or bef ore the payment date established when the levy was made.

The appeal must specify the re asons why the appellant claims the Special Tax is in error.

The CFD Administrator shall review the appeal, meet with the appellant if the CFD Administrator deems necessary, and advise the appellant of its determination.

If the property owner disagrees with the CFD Administra tor’s decision relative to the appeal, the owner may then file a written appeal with the City Council whose subsequent decision shall be final and binding on all interes ted parties. If the decision of the CFD Administrator or subsequent decision by the Ci ty Council requires the Special Tax to be modified or changed in favor of the property owner, then the CFD Administrator s hall determine if sufficient Special Tax revenu e is available to make a cash refund . If a cash refund cannot b e mad e, then an adjustm ent shall be made to credit future Special Tax levy(ies).

This procedure shall be exclusive and its exhaustion by any property owner shall be a condition precedent to filing any legal action by such owner.

G. MANNER OF COLLECTION

The Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that the Special Taxes may be collected in such other manner as the City Council shall determine, including direct billing of affected property owners.

H. PREPAYMENT OF SPECIAL TAX

The following definitions apply to this Section H:

“CFD Public Facilities ” means $12,757,000 each Prepayment Period, or such lower number as determined by the City Council to be sufficient to fund the Facilities and Services to be provided by CFD No. 35.
740

City of Ontario CFD No. 35 13 May 16, 2022

“Expenditures Fund” means funds or accounts, regardless of their names, that are established to hold moneys that are available to acquire or construct Facilities and to fund Services.

“Future F acilities Costs” means th e CFD Public Facilities minus (i) Facilities and Services costs previously paid from the Expenditures Fund during the Prepayment Period in whi ch the prepayment is being made, (ii) moneys currently on deposit in the Expenditures Fund from deposits made duri ng the Prepayment Period in which the prepayment is being made , and (iii) moneys currently on deposit in an escrow fund that are expected to b e available to finance Facilities costs. In no event shall the amount of Future Facilities Costs be less than zero.

“Prepayment Period” means one of three periods of time during which a Special Tax prepayment may be made.

“Prepayment Period 1” means July 1, 2018, through June 30, 2052.

“Prepayment Period 2” means July 1, 2052, through June 30, 2085.

“Prepayment Period 3” means July 1, 2085, through June 30, 2119.

1. Prepayment in Full

The obligation of an Assessor 's Parcel to pay the Special Tax may be prepaid as described herein, provided that a prepayment may be made only for Ass essor’s Parcels for which a building permit for new construction was issued after Jan uary 1, 2017, and only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the tim e of prepayment. An owner of an Assessor's Parcel intending to prepay the Special Tax ob ligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such w ritten notice, the CFD Administrator shall no tify such owner of the prepayment amount for such Assessor 's Pa rcel. T he CFD Administrator may charge a fee for providing this service. Prepayment in any six month period must be made not less than 45 days pri or to the next occu rring date that notice of redemption of Bonds from the proceeds of such prepayment m ay be given to the Trustee pursuant to the Indenture.

The Special Tax Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below):

Bond Redemption Amount
plus Redemption Premium
plus Future Facilities Amount
plus Defeasance Amount
plus Administrative Fees and Expenses
less Reserve Fund Credit
Total Prepayment Amount
741

City of Ontario CFD No. 35 14 May 16, 2022

As of the proposed date of prepaymen t, the Special Tax Prepayment Amount (defined below) shall be calculated by the CFD Administrator as follows:

Paragraph No.

1. Confirm that no Special Tax delinquencies apply to such Assessor’s Parcel , and determine the Prepayment Period for the proposed prepayment.

2. Compute the Assigned Special Tax and Backup Special Tax for the Assessor’s Parcel to be prepai d based on the Dev eloped Property Speci al Tax which is, or could be, charged in the current Fiscal Year . For Assessor’s Parcels of Final Mapped Property (for which a building permit ha s been issued but which is not yet classified as Developed Property) to be prepaid, compute the Assigned Special Tax and Backup Special Tax for that Assessor’s Parcel as though it was already designated as Devel oped Property, base d upon the building permit which has already been issued for that Assessor’s Parcel.

3. (a) Divide the Assigned Special Tax computed pursuant to Paragraph 2 by the total estimated Assigned Special Tax for CFD No. 35 based on the Developed Property Special Tax which could be charge d in the current Fiscal Year on all expected development through buildout of CFD No. 35, excluding any Assessor’s Parcels which have been prepaid, and

(b) Divide the Backup Special Tax computed pursuant to Para graph 2 by the estimated total Backup Special Tax at buildout of CFD No. 35, excluding any Assessor’s Parcels which have been prepaid.

4. Multiply the larger quotient computed pursuant to Paragraph 3(a) or 3(b) by the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the “Bond Redemption Amount”).

5. Multiply the Bond Redemption Amount computed pursuant to Paragraph 4 by the applicable redemption prem ium (e.g., the redemption price minus 100%), if any, on the Outstanding Bonds to be redeemed (the “Redemption Premium”).

6. Compute the Future Facilities Costs for the applicable Prepayment Period.

7. Multiply the larger quotient computed pursuant to Paragraph 3(a) or 3(b) by the amount determined pursuant to Paragraph 6 to c ompute the amount of Future Facilities Costs to be prepaid (the “Future Facilities Amount”).

8. Compute the am ount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds.

9. Determine the Special Tax levied on the Assessor’s Parce l in the current Fiscal Year which has not yet been paid.
742

City of Ontario CFD No. 35 15 May 16, 2022

10. Add the amounts computed pursuant to Paragraphs 8 and 9 to deter mine the “Defeasance Amount”.

11. Verify the administrative fees and expenses of CFD No. 35, including the costs to compute the prepayment, the costs to invest the prepayment proceeds, the costs to redeem Bonds, and the costs to record any notices to evidence the prepayment and the redemption (the “Administrative Fees and Expenses”).

12. If reserve f unds for the Outstanding Bonds, if any, are at or above 100% of the reserve requirement (as defined in the Indenture) on the prepayment date, a reserve f und c redit shall be calculated as a reduction in the applicable reserve fund for the Outstanding Bonds to be redeemed pursuant to the prepayment (the “Reserve Fund Credit ”). No Reserve Fund Credit shall be granted if reserve funds are below 100% of the re serve requirement on the prepayment date or t he redemption date.

13. The Special Tax prepayment is equal to the sum of the amounts computed pursuant to Paragraphs 4, 5, 7, 10, and 11, less the amount computed pursuant to Paragraph 12 (the “Prepayment Amount”).

14. From the Prepayment Amount, the am ounts computed pursuant to Paragraphs 4, 5, 10, and 12 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pur suant to Paragraph 7 shall be deposited into the Expenditures Fund. The amount computed pursuant to Paragraph 11 s hall be retained by CFD No. 35.

The Special Tax Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment ab ove $5,000, or integral multiple thereof, will be retained in t he appropriate fund establ ished under the Indenture to be used with the next prepayment of Bonds or to make debt service payments.

As a result of t he payment of the c urrent Fiscal Year’s Speci al Tax levy as determined under Paragraph 9 (above), the CFD Administrator shall remove the current Fiscal Year’s Special Tax levy for such Assessor’s Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid during Prepayment Period 3, the CFD Administrator shall cause a suitable notice to be recorded in compliance with the Act to indicate that the Special Tax has been prepaid and that the obligation of such Assessor's Parcel to pa y the Special Tax shall cease.

With respect to the Special Tax for any Assessor’s Parcel that is p repaid during Prepayment Period 1 or Prepayment Period 2, the obligation of such Assessor’s Parcel to pay the Special Tax shall be tolled, or suspended, through t he end of such Prepayment Period, but shall resume in the first Fiscal Year of the subsequent Prep ayment Period .

The CFD Adminis trator shall cause a suitable notice to be recorded in compliance with the Act to indicate that the Special Tax has been s atisfied for the re mainder of the applicable Prepayment Period but h as not been permanently satisfied and the obliga tion 743

City of Ontario CFD No. 35 16 May 16, 2022
to pay the Special Tax will resume in the first Fiscal Year of the Prepayment Period following the Prepayment Period in which the prepa yment was made. On ce the obligation of an Assessor’s Parcel to pay the Special Tax resumes, the Special Tax for the then applicable Prepayment Period may be prepaid.

Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Special Tax that may be levied on Taxable Property within CFD No. 35 (after excluding 2.44 Acres of Public Property and 14.12 acres of Property Owner Association Property) both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds.

2. Prepayment in Part

The Special Tax on an Ass essor’s Parcel for which a building permit for new construction was issued after January 1, 2017, may be partially prepaid. The amount of the prepa yment shall be calculated as in Section H .1, except that a partial prepayment shall be calculated by the CFD Administrator according to the following formula:

PP = (PF – AE) x % + AE.

The terms above have the following meaning:

PP = the partial prepayment
PF = the Prepayment Amount (full prepayment) for the Special Tax calculated according to Section H.1
AE = the Administrative Fees and Expenses determined pursuant to paragraph 11 above % = the percentage by which the owner of the Assessor’s P arcel(s) is partially prepaying the Special Tax

The Special Tax partial prepayment amount must be sufficient to redeem at least a $5,000 increment of Bonds.

The owner of any Assessor’s Parcel who desires such prepayment shall notify the CFD Administrator of su ch owner’s intent to partially prepay th e Special Tax and the percentage by which the Special Tax shall be pre paid. The CFD Adm inistrator shall provide the owner with a statement of the amount required for the partial prepayment of the Special Tax for an Assessor’s Parcel within thirty (30) days of the request and may charge a fee for providing this servi ce. Wit h respect to any A ssessor’s Parcel that is partially prepaid, the CFD Administrator shall (i) distribute the remitted prepayment funds according to Section H.1, and (ii) indicate in the records of CFD No. 35 that there has been a partial prepa yment of the Special Tax and that a portion of the Special Tax with respect to such Assessor’s Parcel, equal to the outstanding percentage (100% - “%”, as defi ned above ) of the Maximum Special Tax, s hall continue to be levied on such Assessor’s Parcel pursuant to Secti on D during the Pr epayment Period in which the partial prepayment is made.

For partial prepayments made during Prepayment Period 1 or Prepa yment Period 2, the full amount of the Special Tax shall resume in the first Fiscal Year of the Prepaym ent 744

City of Ontario CFD No. 35 17 May 16, 2022
Period fo llowing the Prepayment Period in which the partial prepayment was made.

Once the obligation of an Assessor’s Parcel to pay the Special Tax resumes, the Special Tax for the then applicable Prepayment Period may be prepaid.

I. TERM OF SPECIAL TAX

The Fiscal Year afte r which no further Special Tax shall be levied or collected is Fiscal Year 2118-2119, except that the Special Tax that was lawfully levied in or bef ore such Fiscal Year and that remains delinquent may be collected in subsequent years.

745

EXHIBIT A

CERTIFICATE OF MODIFICATION OF SPECIAL TAX
(PAGE 1 OF 2)

CITY OF ONTARIO AND CFD NO. 35 CERTIFICATE

1. Pursuant to Section C.1 of the Amended and Restated Rate and Method of Apportionment of Special Tax (the “Rate and Method”) for City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South – Facilities) (“CFD No. 35”) , the Assigned Special Tax and the Backup Special Tax for Developed Property within CFD No. 35 has been modified.

a. The information in Table 1 relating to the Assigned Special Tax for Developed Property within CFD No. 35, as s tated in Section C.1.a.2 of the Rate and Method of Apportionment, has been modified as follows:

TABLE 1
ASSIGNED SPECIAL TAX – DEVELOPED PROPERTY

Land
Use
Class

Description

Residential
Floor Area
(Square
Footage)

Assigned
Special Tax
1 Single Family Property < 1,501 $[ ] per Unit
2 Single Family Property 1,501 – 1,700 $[ ] per Unit 3 Single Family Property 1,701 – 1,900 $[ ] per Unit 4 Single Family Property 1,901 – 2,100 $[ ] per Unit 5 Single Family Property 2,101 – 2,300 $[ ] per Unit 6 Single Family Property 2,301 – 2,500 $[ ] per Unit 7 Single Family Property > 2,500 $[ ] per Unit
8 Other Residential Property $[ ] per Acre
9 Non-Residential Property $[ ] per Acre
746

EXHIBIT A

CERTIFICATE OF MODIFICATION OF SPECIAL TAX
(PAGE 2 OF 2)

b. The Backup Special Tax for Developed Property, as stated in Section C.1.a. 3, shall be modified as follows:

The Backup Special Tax sh all be $[____] per Unit for Single Family Property. However, if the Expected Residential Lot Count does not equ al 235 for Single Family Property, and the City has not issued Bonds , then the Backup Special Tax for Designated Bui ldable Lots of Single Family Property shall be calculated according to the following formula:

Backup Special Tax = $[______] ÷ Expected Residential
Lot Count for Single Family Property

2. The Special Tax for Developed Property may only be modified prior to the first issuance of CFD No. 35 Bonds.

3. Upon execution of this Certificate by CFD No. 35, CFD No. 35 shall cause an amended notice of Special Tax lien for CFD No. 35 to be recorded reflecting the modifications set forth herein.

Capitalized unde fined terms used herein have the meanings ascribed thereto in the Rate and Method. The modifications set forth in this Certificate have been calculated by th e CFD Administrator in accordance with the Rate and Method.

GOODWIN CONSULTING GROUP, INC.

CFD ADMINISTRATOR

By:_________________________________ Date:______________________

The undersigned acknowledges receipt of this Certificate and of the modification of the Assigned Special Tax and the Backup Special Tax for Developed Property as set forth in this Certificate.

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 35
(COUNTRYSIDE PHASE 2 SOUTH – FACILITIES)

By:_________________________________ Date:______________________ 747
RESOLUTION NO. _______

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

ONTARIO, CALIFORNIA, DECLARING RESULTS OF A SPECIAL

ELECTION, DETERMINING THAT CHANGES TO THE RATE AND

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

AUTHORIZED AND DIRECTING RECORDING OF AN AMENDMENT TO
NOTICE OF SPECIAL TAX LIEN.

WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”) previously established City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) pursuant to the Mello- Roos Community Facilities Act of 1982 (the “Act”); and
WHEREAS, on July 19, 2022, the City Council, pursuant to the Act, adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling a Special Election for Proposed Changes to the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Resolution Calling Election”), calling a special election of the qualified electors within the Community Facilities District and submitting to such qualified electors the proposition to change the rate and method of apportionment of the special tax (the “Special Tax”) levied within the Community Facilities District so as to increase certain of the Special Tax rates thereunder; and WHEREAS, pursuant to the terms of the Resolution Calling Election and the provisions of the Act, the special election was held on July 19, 2022; and WHEREAS, the City Clerk of the City (the “City Clerk”) has certified the canvass of the returns of the election and has filed a Canvass and Statement of Results of Election (the “Canvass”), a copy of which is attached hereto as Exhibit A.

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

SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.

SECTION 2. The City Council has received, reviewed and hereby accepts the Canvass.

SECTION 3. The City Council hereby finds and declares that the ballot proposition submitted to the qualified electors of the Community Facilities District pursuant to the Resolution Calling Election has been passed and approved by such electors in accordance with Section 53338 of the Act.
748
SECTION 4. The City Council hereby finds and determines that the changes to the rate and method of apportionment of the Special Tax so as to increase certain of the Special tax rates thereunder, as described in the Resolution Calling Election, are lawfully authorized.

SECTION 5. The City Clerk is hereby directed to execute and cause to be recorded in the office of the County Recorder of the County of San Bernardino an amendment to the notice of special tax lien for the Community Facilities District in accordance with Section 3117.5 of the California Streets and Highways Code.

SECTION 6. All actions heretofore taken by the officers, employees and agents of the City with respect to the changes to the rate and method of apportionment of the Special Tax, or in connection with or related to any of the documents referred to herein, are hereby approved, confirmed and ratified.

SECTION 7. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things that they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 8. This Resolution shall take effect immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
749

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
750

EXHIBIT A

CANVASS AND STATEMENT OF RESULTS OF ELECTION

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

CANVASS AND STATEMENT OF RESULTS OF ELECTION
I hereby certify that on July 19, 2022, I canvassed the returns of the special election held on July 19, 2022 for the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities), that the total number of ballots cast in said Community Facilities District and the total number of votes cast for and against the proposition are as follows and that the totals as shown for and against the proposition are true and correct:

Qualified
Landowner
Votes
Votes
Cast YES NO
City of Ontario Community Facilities
District No. 35 (Countryside Phase 2
South - Facilities) Special Election,
July 19, 2022
35 ___ ___ ___
MEASURE SUBMITTED TO VOTE OF VOTERS: Shall the rate and method of apportionment of the special tax levied within City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) be changed so as to increase certain of the special tax rates thereunder, all as specified in the Resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling a Special Election for Proposed Changes to the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities),” adopted by the City Council of the City of Ontario on July 19, 2022?
IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND this 19 th day of July 2022.

BY:

SHEILA MAUTZ, CITY CLERK
751
ORDINANCE NO. _____

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

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

WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”) previously established City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) pursuant to the Mello- Roos Community Facilities Act of 1982 (the “Act”); and
WHEREAS, the qualified electors of the Community Facilities District authorized the levy of a special tax (the “Special Tax”) within the Community Facilities District to pay, in whole or in part, the cost of providing certain facilities (the “Facilities”) and certain services (the “Services”) and incidental expenses pursuant to the Act referenced in the proposition submitted to such qualified electors; and
WHEREAS, pursuant to Section 53340 of the Act, the City Council, on November 7, 2017, adopted Ordinance No. 3082, entitled “An Ordinance of the City Council of the City of Ontario, California, Levying Special Taxes within the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Levy Ordinance”), levying the Special Tax at the rate and in accordance with the method of apportionment referenced therein (the “Original Rate and Method”); and WHEREAS, on June 7, 2022, the City Council adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, of Consideration to Change the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” proposing changes to the Original Rate and Method so as to increase certain of the Special Tax rates thereunder; and
WHEREAS, on July 19, 2022, the City Council, pursuant to the Act, adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling a Special Election for Proposed Changes to the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Resolution Calling Election”) calling for a special election of the qualified electors within the Community Facilities District and submitting to such qualified electors the proposition to change the Original Rate and Method so as to increase certain of the Special Tax rates thereunder, as reflected in the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) Amended and Restated Rate and Method of Apportionment of Special Tax (the “Restated Rate and Method”) attached thereto and incorporated therein; and 752
WHEREAS, on July 19, 2022, the City Council adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Declaring Results of a Special Election, Determining That Changes to the Rate and Method of Apportionment of the Existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) Are Lawfully Authorized and Directing Recording of an Amendment to Notice of Special Tax Lien,” declaring that the ballot proposition submitted to the qualified electors of the Community Facilities District pursuant to the Resolution Calling Election has been passed and approved by such electors and finding and determining that that the changes to the Original Rate and Method, as reflected in the Restated Rate and Method, were lawfully authorized; and WHEREAS, this Ordinance amends and restates the Levy Ordinance in order to reflect such changes.

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

SECTION 1. The Levy Ordinance is hereby amended and restated to read in full as set forth herein.

SECTION 2. The City Council hereby authorizes and levies the Special Tax within the Community Facilities District pursuant to Sections 53328 and 53340 of the Act, at the rate and in accordance with the method of apportionment set forth in the Restated Rate and Method. The Special Tax is hereby levied in each fiscal year until the last fiscal year in which the Special Tax is authorized to be levied pursuant to the Restated Rate and Method.

SECTION 3. The City Council may, in accordance with subdivision (b) of Section 53340 of the Act, provide, by resolution, for the levy of the Special Tax in future tax years at the same rate or at a lower rate than the rate provided by this Ordinance. In no event shall the Special Tax be levied on any parcel within the Community Facilities District in excess of the maximum tax specified therefor in the Restated Rate and Method.

SECTION 4. The Special Tax shall be levied on all of the parcels in the Community Facilities District, unless exempted by law or by the Restated Rate and Method.

SECTION 5. The proceeds of the Special Tax shall only be used to pay, in whole or in part, the cost of providing the Facilities and Services and incidental expenses pursuant to the Act.

SECTION 6. The Special Tax shall be collected in the same manner as ordinary ad valorem property taxes are collected and shall be subject to the same penalties and the same procedure, sale and lien priority in the case of delinquency as is provided for ad valorem taxes, unless another procedure is adopted by the City Council.

SECTION 7. If for any reason any portion of this Ordinance is found to be invalid, or if the Special Tax is found inapplicable to any particular parcel within the Community Facilities District, by a court of competent jurisdiction, the balance of this Ordinance and the application of the Special Tax to the remaining parcels within the Community Facilities District shall not be affected.
753
SECTION 8. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary hereof to be published at least once in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this Ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with California Government Code Section 36933.

The City Clerk of the City of Ontario shall certify as to the adoption of this Ordinance.

PASSED, APPROVED, AND ADOPTED this ________ day of _________ 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
754

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

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

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

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

SHEILA MAUTZ, CITY CLERK
(SEAL)
755
RESOLUTION NO. ________

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

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

WHEREAS, on October 17, 2017, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted Resolution No. 2017-123, entitled “A Resolution of the City Council of the City of Ontario, California, of Formation of the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities), Authorizing the Levy of a Special Tax within the Community Facilities District and Establishing an Appropriations Limit for the Community Facilities District,” Resolution No. 2017-124, entitled “A Resolution of the City Council of the City of Ontario, California, Deeming it Necessary to Incur Bonded Indebtedness within the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Resolution Deeming it Necessary to Incur”), and Resolution No. 2017-125, entitled “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities),” which resolutions established City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”), authorized the levy of a special tax within the Community Facilities District and called an election within the Community Facilities District on the proposition of incurring indebtedness, levying a special tax and establishing an appropriations limit for the Community Facilities District, respectively, for the purpose of financing certain public facilities and services, as further provided in the Resolution of Formation; and
WHEREAS, on October 17, 2017, an election was held in which the qualified electors of the Community Facilities District approved said proposition by more than the two-thirds vote required by the Act; and
WHEREAS, pursuant to the Resolution Deeming it Necessary to Incur and said election, the Community Facilities District is authorized to incur bonded indebtedness in a maximum aggregate amount of not to exceed $27,000,000; and WHEREAS, on June 7, 2022, the City Council, pursuant to the Act, adopted a Resolution entitled “A Resolution of the City Council of the City Of Ontario, California, of Intention to Amend Resolution No. 2017-124 In Order to Increase the Maximum Aggregate Amount of Bonded Indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) is Authorized to Incur” (the “Resolution of Intention”), declaring the necessity to increase the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur from $27,000,000 to $45,000,000 and setting the date for a public hearing to be held on the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur; and 756
WHEREAS, pursuant to the Resolution of Intention, notice of said public hearing was published in the Inland Valley Daily Bulletin , a newspaper of general circulation published in the area of the Community Facilities District, in accordance with the Act; and WHEREAS, on this date, the City Council opened, conducted and closed said public hearing; and
WHEREAS, at said public hearing, any person interested, including persons owning property within the Community Facilities District and desiring to appear and present any matters material to the questions set forth in the Resolution of Intention appeared and presented such matters; and
WHEREAS, oral or written protests against the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur were not made or filed at or before said public hearing by 50% or more of the registered voters, or six registered voters, whichever is more, residing within the territory of the Community Facilities District, or the owners of one-half or more of the area of land in the territory of the Community Facilities District and not exempt from the special tax; and
WHEREAS, there has been filed with the City Clerk of the City a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the Community Facilities District as of June 16, 2022, and, accordingly, that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of said public hearing.

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

SECTION 1. The foregoing recitals are true and correct, and the City Council so finds and determines.

SECTION 2. The City Council deems it is necessary that the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur be increased from $27,000,000 to $45,000,000.

SECTION 3. In order to increase the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur from $27,000,000 to $45,000,000, Section 5 of the Resolution Deeming it Necessary to Incur shall be amended to read in full as follows:
“Section 5. The maximum aggregate amount of debt to be incurred is $45,000,000.”
SECTION 4. Pursuant to the provisions of the Act, the proposal to increase the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur from $27,000,000 to $45,000,000 by amending Section 5 of the Resolution Deeming it Necessary to Incur shall be subject to the approval of the 757
qualified electors of the Community Facilities District at a special election. The City Council hereby finds and determines that no persons were registered to vote within the territory of the Community Facilities District as of June 16, 2022, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearing held by the City Council on the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the special tax. The voting procedure shall be by mailed or hand-delivered ballot.

SECTION 5. The date of the special community facilities district election at which time the proposition shall be submitted to the voters is July 19, 2022.

SECTION 6. The election is to be conducted by mail ballot. The mailed ballots are required to be received in the office of the City Clerk no later than 7:30 p.m. on July 19, 2022; provided, however, that if all of the qualified electors have voted prior to such time, the election may be closed with the concurrence of the City Clerk.

SECTION 7. All actions heretofore taken by the officers, employees and agents of the City with respect to the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur, or in connection with or related to any of the documents referred to herein, are hereby approved, confirmed and ratified.

SECTION 8. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 9. This Resolution shall take effect immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
758
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
759

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
760
RESOLUTION NO. _______

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

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

WHEREAS, on this date, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Deeming it Necessary to Amend Resolution No. 2017-124 In Order to Increase the Maximum Aggregate Amount of Bonded Indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) is Authorized to Incur” (the “Resolution Deeming it Necessary ”), deeming it necessary that the maximum aggregate amount of bonded indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) is authorized to incur be increased from $27,000,000 to $45,000,000; and WHEREAS, pursuant to the provisions of said resolution, the proposition to increase the maximum aggregate amount of bonded indebtedness the Community Facilities District is authorized to incur is to be submitted to the qualified electors of the Community Facilities District as required by the Act; and WHEREAS, the City Council desires to designate the City Clerk of the City (the “City Clerk”) as the election official for the special election provided for herein; and WHEREAS, there has been filed with the City Clerk a letter from the Registrar of Voters of the County of San Bernardino indicating that no persons were registered to vote within the territory of the Community Facilities District as of June 16, 2022, and, accordingly, that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearing on the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur; and WHEREAS, there has been filed with the City Clerk consents and waivers of all of the landowners of record in the Community Facilities District waiving any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said special election, including any time limit or requirement applicable to an election pursuant to Article 5 of the Act (commencing with Section 53345 of the Act), consenting to the holding of said special election on July 19, 2022 and waiving any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act; and WHEREAS, the City Clerk has concurred in said waivers and has concurred in holding said special election on July 19, 2022.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
761
SECTION 1. The foregoing recitals are true and correct.

SECTION 2. Pursuant to the Act, the proposition to increase the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur shall be submitted to the qualified electors of the Community Facilities District at an election called therefor as provided below.

SECTION 3. The City Clerk is hereby designated as the official to conduct said election.

SECTION 4. The City Council hereby finds and determines that no persons were registered to vote within the territory of the Community Facilities District as of June 16, 2022, and that 12 or more persons have not been registered to vote within the territory of the Community Facilities District for each of the 90 days preceding the close of the public hearing heretofore held by the City Council on the proposed increase in the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur. Accordingly, pursuant to Section 53326 of the Act, the vote shall be by the landowners of the Community Facilities District and each person who is the owner of land as of the close of said public hearing, or the authorized representative thereof, shall have one vote for each acre or portion of an acre that he or she owns within the Community Facilities District not exempt from the special tax.

SECTION 5. The City Council hereby finds and determines that the qualified electors of the Community Facilities District have unanimously consented (a) to the waiver of any time limit specified by Section 53326 of the Act and any requirement pertaining to the conduct of said election, including any time limit or requirement applicable to an election pursuant to Article 5 of the Act (commencing with Section 53345 of the Act), (b) to the holding of said election on July 19, 2022, and (c) to the waiver of any impartial analysis, arguments or rebuttals, as set forth in Sections 53326 and 53327 of the Act. The City Council herby finds and determines that the City Clerk has concurred in said waivers and has concurred in holding said election on July 19, 2022.

SECTION 6. The City Council hereby calls a special election to increase the maximum aggregate amount of bonded indebtedness that the Community Facilities District is authorized to incur from $27,000,000 to $45,000,000, which election shall be held at 303 East B Street, Ontario, California, on July 19, 2022. The City Council has caused to be provided to the City Clerk, as the official to conduct said election, the Resolution of Deeming it Necessary, a certified map of sufficient scale and clarity to show the boundaries of the Community Facilities District, and a sufficient description to allow the City Clerk to determine the boundaries of the Community Facilities District.

The voted ballots shall be returned to the City Clerk not later than 7:30 p.m. on July 19, 2022; provided, however, that if all of the qualified electors have voted prior to such time, the election may be closed with the concurrence of the City Clerk.

SECTION 7. Pursuant to Section 53326 of the Act, the election shall be conducted by mail or hand-delivered ballot pursuant to Section 4000 et. seq. of the California Elections Code. Except as otherwise provided in the Act, the provisions of law regulating elections of the City, insofar as they may be applicable, will govern the election. 762
SECTION 8. The form of the ballot for said election is attached hereto as Exhibit A and by this reference incorporated herein, and such form of ballot is hereby approved. The City Clerk shall cause to be delivered to each of the qualified electors of the Community Facilities District a ballot in said form. Each ballot shall indicate the number of votes to be voted by the respective landowner to which it pertains.

Each ballot shall be accompanied by all supplies and written instructions necessary for the use and return of the ballot. The identification envelope for return of the ballot shall be enclosed with the ballot, shall have the return postage prepaid, and shall contain: (a) the name and address of the landowner, (b) a declaration, under penalty of perjury, stating that the voter is the owner of record or the authorized representative of the landowner entitled to vote and is the person whose name appears on the identification envelope, (c) the printed name, signature and address of the voter, (d) the date of signing and place of execution of the declaration described in clause (b) above, and (e) a notice that the envelope contains an official ballot and is to be opened only by the canvassing board.

Analysis and arguments with respect to the ballot proposition are hereby waived, as provided in Section 53327 of the Act.

SECTION 9. The City Clerk shall accept the ballots of the qualified electors in the office of the City Clerk at 303 East B Street, Ontario, California, to and including 7:30 p.m. on July 19, 2022, whether said ballots be personally delivered or received by mail.

The City Clerk shall have available ballots which may be marked at said location on the election day by said qualified electors.

SECTION 10. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election called for herein, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.

SECTION 11. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 12. This Resolution shall take effect immediately upon its adoption.

The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
763
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
764

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
765

EXHIBIT A

OFFICIAL BALLOT

CITY OF ONTARIO
July 19, 2022

SPECIAL ELECTION
This ballot is for a special, landowner election. The number of votes to be voted pursuant to this ballot is ____.

INSTRUCTIONS TO VOTERS:

To vote on the measure, mark a cross (+ or X) in the voting square after the word “YES” or after the word “NO”. All distinguishing marks or erasures are forbidden and make the ballot void. If you wrongly mark, tear, or deface this ballot, return it to the City Clerk of the City of Ontario and obtain another.

CITY OF ONTARIO
COMMUNITY FACILITIES DISTRICT NO. 35
(COUNTRYSIDE PHASE 2 SOUTH - FACILITIES)
MEASURE SUBMITTED TO VOTE OF VOTERS: Shall
the maximum aggregate amount of bonded indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) is authorized to incur be increase from $27,000,000 to
$45,000,000, as specified in the Resolution entitled “A Resolution of the City Council of the City of Ontario, California, Deeming it Necessary to Amend Resolution No. 2017-124 In Order to Increase the Maximum Aggregate Amount of Bonded Indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) is Authorized to Incur,” adopted by the City Council of the City of Ontario on July 19, 2022?
Yes:

No:

766
RESOLUTION NO. _____

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

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

WHEREAS, on July 19, 2022, the City Council (the “City Council”) of the City of Ontario (the “City”), pursuant to the Mello-Roos Community Facilities Act of 1982 (the “Act”), adopted a resolution entitled “A Resolution of the City Council of the City of Ontario, California, Calling Special Election for City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities)” (the “Resolution Calling Election”), calling for a special election of the qualified electors within City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”); and WHEREAS, pursuant to the terms of the Resolution Calling Election and the provisions of the Act, the special election was held on July 19, 2022; and WHEREAS, the City Clerk of the City (the “City Clerk”) has certified the canvass of the returns of the election and has filed a Canvass and Statement of Results of Election (the “Canvass”), a copy of which is attached hereto as Exhibit A; and NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

SECTION 1. The foregoing recitals are true and correct.

SECTION 2. The City Council has received, reviewed and hereby accepts the Canvass.

SECTION 3. The City Council hereby finds and declares that the ballot proposition submitted to the qualified electors of the Community Facilities District pursuant to the Resolution Calling Election has been passed and approved by such electors in accordance with Section 53355 of the Act.

SECTION 4. All actions heretofore taken by the officers, employees and agents of the City with respect to the special election, or in connection with or related to any of the matters referred to herein, are hereby approved, confirmed and ratified.

SECTION 5. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 6. This Resolution shall take effect immediately upon its adoption. 767
The City Clerk of the City of Ontario shall certify as to the adoption of this Resolution.

PASSED, APPROVED, AND ADOPTED this 19th day of July 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
768

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Resolution No. 2022- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 19, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
The foregoing is the original of Resolution No. 2022- duly passed and adopted by the Ontario City Council at their regular meeting held July 19, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
769

EXHIBIT A

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

CANVASS AND STATEMENT OF RESULTS OF ELECTION
I hereby certify that on July 19, 2022, I canvassed the returns of the special election held on July 19, 2022, for the City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities), that the total number of ballots cast in said Community Facilities District and the total number of votes cast for and against the proposition are as follows and that the totals as shown for and against the proposition are true and correct:

Qualified
Landowner
Votes
Votes
Cast YES NO
City of Ontario Community Facilities
District No. 35 (Countryside Phase 2
South - Facilities) Special Election,
July 19, 2022
35 ___ ___ ___
MEASURE SUBMITTED TO VOTE OF VOTERS: Shall the maximum aggregate amount of bonded indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) (the “Community Facilities District”) is authorized to incur be increase from $27,000,000 to $45,000,000, as specified in the Resolution entitled “A Resolution of the City Council of the City of Ontario, California, Deeming it Necessary to Amend Resolution No. 2017-124 In Order to Increase the Maximum Aggregate Amount of Bonded Indebtedness that City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South - Facilities) is Authorized to Incur,” adopted by the City Council of the City of Ontario on July 19, 2022? IN WITNESS WHEREOF, I HAVE HEREUNTO SET MY HAND this 19 th day of July 2022.

BY:

SHEILA MAUTZ, CITY CLERK
770
Department: Planning
Prepared By: Lorena Mejia
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 30
SUBJECT:

A PUBLIC HEARING TO CONSIDER A DEVELOPMENT CODE AMENDMENT (FILE NO. PDCA22-004) PROPOSING CERTAIN CLARIFICATIONS AND REVISIONS TO THE

CITY OF ONTARIO DEVELOPMENT CODE PERTAINING TO CHINO AIRPORT

CITY OF ONTARIO
Agenda Report
July 19, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council introduce and waive further reading of the Ordinance approving File No. PDCA22-004, a Development Code Amendment proposing certain clarifications and revisions to the City of Ontario Development Code,
establishing the Chino Airport Overlay
zoning district and Reference L, Chino Airport Land Use Compatibility Plan .

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT:

There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

The California State Aeronautics Act (Public Utilities Code, Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan ("ALUCP") be prepared for all public-use airports in the state to “protect the public health, safety, and welfare by ensuring orderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible land uses.”

State law requires local land use plans and individual development proposals to be consistent with policies set forth in Compatibility Plans. The statutes require that local jurisdictions preparing Compatibility Plans “rely upon” the compatibility guidance provided by the 2011 California Airport Land Use Planning Handbook

published by the California Department of Transportation (“Caltrans”), Division of Aeronautics.

The responsibility for the preparation and adoption of compatibility plans falls to the Airport Land Use Commissions (“ALUC”) within each county. However, State law also provides for what is generally referred to as an “Alternative Process” wherein a county does not have to form an ALUC 771
and the required compatibility planning responsibilities fall to local jurisdictions. San Bernardino County and its cities elected to follow the Alternative Process when this option became available as a result of the 1994 legislation (Assembly Bill 2831). Specific requirements for implementation of the Alternative Process are set forth in Public Utilities Code Section 21670.1(c)(2).

Use of the Alternative Process within San Bernardino County was established in 1995 by resolutions of the County Board of Supervisors and the city councils of cities affected by airports. The California Division of Aeronautics approved the San Bernardino County Alternative Process in 1996. The approval of the Alternative Process designated the City of Chino as the local jurisdiction responsible for leading the compatibility planning process for Chino Airport.

PROPOSED CHINO AIRPORT OVERLAY DISTRICT:

The existing 1991 Chino Airport Land Use
Compatibility Plan does not reflect the guidance set forth in the 2011 Caltrans Airport Land Use Planning Handbook (“Handbook”). Although, the City of Ontario does not have the formal responsibility under the “alternative process” to prepare a compatibility plan for Chino Airport, the City of Ontario has prepared an airport land compatibility plan for Chino Airport consistent with the 2011 Caltrans Airport Land Use Planning Handbook solely to address impacts within Ontario’s boundaries.

The basic function of the proposed ALUCP for Chino Airport (“CNO”) is to promote compatibility between CNO and land uses within the City of Ontario. The main objective of the ALUCP is to avoid future compatibility conflicts rather than to remedy existing incompatibilities. In addition, the ALUCP is aimed at addressing future land uses and development and compatibility with The Ontario Plan Policy Plan. The ALUCP does not place any restrictions on the present and future role, configuration, or use of the airport.

The ALUCP addresses three compatibility factors which include safety, airspace protection, and overflight impacts. The compatibility plan includes policies to evaluate land use plans and new development proposals for consistency with CNO. Each compatibility factor takes into consideration present and future aircraft operations or land uses that could negatively affect airport operations.

SAFETY:

The intent of the safety compatibility policies is to minimize the risks associated with an off- airport aircraft accident or emergency landing. The policies focus on reducing the potential risks to people and property if such events where to occur. The safety zones place restrictions on new residential or sensitive land uses from being developed within the affected areas and limits the intensity of non-residential development (i.e., number of people allowed per acre of land) and total permissible floor area of any future building developed.

AIRSPACE PROTECTION:

Airspace protection compatibility policies seek to prevent creation of land use features that can be hazards to aircraft in flight and have the potential for causing an aircraft accident to occur. Such hazards may be such things as a building being built too high or a land use that may cause visual or electronic hazards.

OVERFLIGHT:

The purpose of overflight compatibility policies is to help notify people about the presence of overflights near airports so that they can make informed decisions regarding acquisition or lease of property in the affected areas. 772

ALUCP AND GENERAL PLAN LAND USE CONSISTENCY:

State Law requires General Plans and
Specific Plans be consistent with adopted airport compatibility plans. Government Code Section 65302.3 requires that General Plans and any applicable Specific Plans “shall be consistent with” the Compatibility Plan and is reiterated in local agencies’ obligations under the Alternative Process (Public Utilities Code Section 21670.1(c)(2)(D)). General Plans do not need to be identical with the ALUCP in order to achieve consistency. Affected jurisdictions’ General Plans must do the following:
(1) address compatibility planning issues, either directly or through reference to a zoning ordinance or other policy document; and (2) must avoid direct conflicts with the (ALUCP) development policies and criteria.

The consistency requirement pertains only to future land use development. Nothing in state law or the ALUCP requires that already existing development be removed or modified to eliminate incompatibilities that may already exist. Furthermore, General Plans and Specific Plans can show such land uses as continuing even though they would be nonconforming with the ALUCP criteria.

Conflicts of this type do not constitute inconsistencies between a General Plan or Specific Plan and the ALUCP.

DEVELOPMENT CODE AMENDMENT:

The proposed Development Code Amendment consists of
the following:

A
.

Chapter 5:

Provisions to establish the Chino Airport Overlay zoning district within Chapter 5 Development Code Chapter 5, Division 5.01, Section 5.01.005.F.6 (see Attachment A of the Ordinance); and
B
.

Reference:

Provisions to establish Reference L, the Chino Airport Land Use Compatibility Plan, within the Reference section of the Development Code (see Attachment B of the Ordinance).

PLANNING COMMISSION REVIEW AND ACTION:

On June 28, 2022, the Planning Commission
conducted a public hearing to consider the proposed Development Code Amendment. Upon conclusion of the public hearing, the Planning Commission voted unanimously (6-0-1) to approve Resolution No. PC22-032, recommending the City Council approve the proposed Development Code Amendment.

COMPLIANCE WITH THE ONTARIO PLAN:

The proposed project is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan (“TOP”). Goals and policies of TOP that are furthered by the proposed Development Code Amendment and are addressed in the attached Planning Commission Backup material.

AIRPORT LAND USE COMPATIBILITY PLAN COMPLIANCE:

The California State Aeronautics Act
(Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing 773
the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. The proposed Chino Airport Land Use Compatibility Plan does not create any conflicting policies or inconsistencies with the Ontario International Airport Land use Compatibility Plan.

ENVIRONMENTAL REVIEW:

The proposed Development Code Amendment is exempt from the requirements of the California Environmental Quality Act (“CEQA”) and the guidelines promulgated thereunder, pursuant to Section 15061(b)(3) of the CEQA Guidelines, in that the activity is covered by the common sense exemption that CEQA applies only to projects that have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA.
774

Case Planner: Lorena Mejia

Hearing Body Date Decision Action
Planning Director
Approval:

PC 6/28/2022 APPROVAL Recommend
CC-1st Reading 7/19/2022 Introduction
Submittal Date: 1/3/2022 CC-2nd Reading 8/16/2022 Final

FILE NO: PDCA22-004

SUBJECT: A public hearing to consider certain revisions to the City of Ontario Development Code, establishing the Chino Airport Overlay zoning district and Reference L, Chino Airport Land Use Compatibility Plan; City Initiated. City Council action is required.

RECOMMENDED ACTION: That the Planning Commission consider and adopt the resolution recommending the City Council approve File No. PDCA22-004, pursuant to the facts and reasons contained in the staff report and attached resolution.

PROJECT SETTING: The Chino Airport is a general aviation airport located within the City of Chino, immediately adjacent to the southwestern boundary of the City of Ontario.

Chino Airport is owned and operated by San Bernardino County and is used by a wide range of general aviation aircraft, including single and multi -engine aircraft, turboprop, business jet, and helicopters. The geographic scope of the Chino Airport Land Use Compatibility Plan ( “ALUCP”) is the Airport Influence Area ( “AIA”), the area in which current or future airport -related noise, safety, airspace protection and/or overflight factors may affect land uses or impose restrictions on those uses. The portion of the AIA within the City of Ontario is generally bounded by Riverside Drive to the north, Merrill Avenue/southern boundary City limits to the south, Euclid Avenue to the west and Haven Avenue to the east. The Airport Influence Area for Chino Airport is depicted in Exhibit A:

Chino Airport Influence Area and Policy Map L-1 of the Chino ALUCP.

PROJECT ANALYSIS:

(1) Background — The California State Aeronautics Act (Public Utilities Code, Section 21670 et seq.) requires that an ALUCP be prepared for all public-use airports in the state to “protect the public health, safety, and welfare by ensuring o rderly expansion of airports and the adoption of land use measures that minimize the public’s exposure to excessive noise and safety hazards within areas around public airports to the extent that these areas are not already devoted to incompatible land uses.”

State law requires local land use plans and individual development proposals to be consistent with policies set forth in Compatibility Plans. The statutes require that local jurisdictions preparing Compatibility Plans “rely upon” the compatibility gui dance provided by the 2011 California Airport Land Use Planning Handbook published by the California Department of Transportation (“Caltrans”), Division of Aeronautics. 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

STAFF REPORT
June 28, 2022
775
Planning Commission Staff Report
File No.: PDCA22-004
June 28, 2022