Agenda packet — Ontario City Council, August 16, 2022 (part 1 of 9)

CITY OF ONTARIO
Regular City Council/Housing Authority
Meeting
AUGUST 16, 2022
City Hall
303 East B Street, Ontario, CA 91764
MAYOR PAUL S. LEON • MAYOR PRO TEM ALAN D. WAPNER
COUNCIL MEMBERS JIM W. BOWMAN, DEBRA DORST-PORADA AND RUBEN VALENCIA CITY CLERK SHEILA MAUTZ • TREASURER JAMES R. MILHISER
CITY MANAGER SCOTT OCHOA • CITY ATTORNEY RUBEN DURAN

WELCOME TO A MEETING OF THE ONTARIO CITY COUNCIL
All documents for public review are on file with the Records Management/City Clerk's Department located at 303 East B Street, Ontario, CA 91764.

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

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

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

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

ORDER OF BUSINESS
The regular City Council and Housing Authority meeting begins with Closed Session and Closed CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 1 ATTACHMENT: 20220816 Closed Session
Session Comment at 5:30 p.m., Public Comment at 6:30 p.m. immediately followed by the Regular Meeting and Public Hearings. No agenda item will be introduced for consideration after 10:00 p.m. except by majority vote of the City Council. (EQUIPMENT FOR THE HEARING IMPAIRED

AVAILABLE IN THE RECORDS MANAGEMENT OFFICE)

CALL TO ORDER (OPEN SESSION)

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

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

CLOSED SESSION
GC 54956.95, CONFERENCE WITH LEGAL COUNSEL: San Bernardino Workers’ Compensation Appeals Board, EAMS Case No. ADJ12109360
GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1010-521-27; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Best Market; Under negotiation: Price and terms of payment.

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1010-521-26; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Dan & Sara Clark Family Trust; Under negotiation: Price and terms of payment.

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1048-564-05; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Y & A Investments, LLC.; Under negotiation: Price and terms of payment.

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1048-564-04; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Y & A Investments, LLC.; Under negotiation: Price and terms of payment.

GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1049-057-05; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Thee Aguila Inc.; Under negotiation: Price and terms of payment.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 2 ATTACHMENT: 20220816 Community Improvement Awards^1_PPT.pptx

PLEDGE OF ALLEGIANCE
Council Member Dorst-Porada

INVOCATION
Pastor Benjamin Barlow, First Christian Church Of Ontario

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

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

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

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

SPECIAL CEREMONIES
ROTARY 100 YEAR ANNIVERSARY

COMMUNITY IMPROVEMENT PROPERTY RECOGNITION PROGRAM AWARDS That the City Council present the Community Improvement Property Recognition Awards to the selected recipients.

CONSENT CALENDAR
CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 3 1. APPROVAL OF MINUTES
ATTACHMENT: 20220719 (Not Official Until Approved.pdf

2. BILLS & PAYROLL

3. A LEASE AGREEMENT BETWEEN CALIFORNIA STATE UNIVERSITY SAN BERNARDINO,

INLAND EMPIRE CENTER FOR ENTREPRENEURSHIP AND SMALL BUSINESS DEVELOPMENT

CENTER AND THE CITY OF ONTARIO

4. ACCEPT FEMA GRANT FUNDS AND AWARD CONTRACT TO UPDATE THE LOCAL HAZARD

MITIGATION PLAN AND THE EMERGENCY OPERATIONS PLAN

5. AN AGREEMENT FOR PUBLIC SAFETY SUPPORT SERVICES, COUNSELING AND CRITICAL

INCIDENT STRESS MANAGEMENT SERVICES
All matters listed under CONSENT CALENDAR will be enacted by one motion in the form listed below – there will be no separate discussion on these items prior to the time Council votes on them, unless a member of the Council requests a specific item be removed from the Consent Calendar for a separate vote.

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

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

Bills July 16, 2022 through July 29, 2022 and Payroll July 3, 2022 through July 16, 2022 when audited by the Finance Committee.

That the City Council approve a lease agreement (on file in the Records Management Department) between California State University San Bernardino, Inland Empire Center for Entrepreneurship and Small Business Development Center, and the City of Ontario for the use of the City-owned property located at 603 North Euclid Avenue for a one-year term with the option to extend for up to two additional one-year terms.

That the City Council take the following actions:

A. Accept FEMA grant funds in the award amount of $125,000 to be used specifically for consultant support on writing the emergency plans.

B. Authorize the City Manager or his designee to execute a contract with Atlas Planning Solutions through June 30, 2024, for a total not-to-exceed amount of $150,000 to update the City's Local Hazard Mitigation Plan and the Emergency Operations Plan.

That the City Council authorize the City Manager to execute up to a five-year Professional Services Agreement with The Counseling Team International, of San Bernardino, California , for CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 4 6. A RESOLUTION APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN

THE CITY OF ONTARIO AND D STREET TOWNHOME APARTMENTS, LLC, A CALIFORNIA

LIMITED LIABILITY CORPORATION IN ACCORDANCE WITH GOVERNMENT CODE SECTION 37350 ET. SEQ.

ATTACHMENT: D_Street_Townhome_Apartments LLC DDA EXHA^01 ATTACHMENT: D Street Townhome Apartments LLC DDA RESO^02^RM ATTACHMENT: D Street Townhome Apartments LLC DDA^ATTACHMENT^03

7. DESIGNATION OF VOTING DELEGATES FOR THE LEAGUE OF CALIFORNIA CITIES ANNUAL

BUSINESS MEETING

8. AUTHORIZE THE PURCHASE OF A TYPE 1 AMBULANCE

9. ACCEPTANCE OF GRANT AWARD FROM THE U.S. DEPARTMENT OF HOMELAND SECURITY AND THE CALIFORNIA OFFICE OF EMERGENCY SERVICES PROVIDED THROUGH THE FY 2021

URBAN AREA SECURITY INITIATIVE (UASI) GRANT PROGRAM
public safety personnel support services, counseling, pre-employment psychological testing, and critical incident stress management. The total compensation shall not exceed $100,000 annually and the total not-to-exceed is $500,000 for the five-year Agreement.

That the City Council (“City”) consider and:

A. Adopt the attached Resolution approving the Disposition and Development Agreement (“Agreement”) between the D Street Townhome Apartments, LLC, a California Limited Liability Corporation (“Developer”) (on file with the Records Management Department).

B. Authorize the City Manager/Executive Director or his designee to sign all documents necessary to implement the Agreement.

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

APPROVING A DISPOSITION AND DEVELOPMENT AGREEMENT BETWEEN THE CITY

OF ONTARIO AND D STREET TOWNHOME APARTMENTS, LLC, WITH RESPECT TO APPROXIMATELY 0.737 ACRES OF LAND LOCATED AT 120 WEST D STREET AND 420 NORTH LAUREL AVENUE (APNS: 1048-354-12 AND 1048-354-13).

That the City Council designate Council member Debra Dorst-Porada as the City's voting delegate and Mayor Paul Leon as an alternate for the League of California Cities Annual Business Meeting scheduled for September 9, 2022.

That the City Council takes the following actions:

A. Authorize the purchase one Medix Metro Express 153 Type 1 Ambulance from Republic EVS of Santa Fe Springs, California in an amount not to exceed $313,600.

That the City Council authorize the City Manager to execute all documents necessary to accept a three-year sub-grant award in the amount of $600,000 from the U.S. Department of CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 5 10. A COST SHARING AGREEMENT WITH CHAFFEY JOINT UNION HIGH SCHOOL DISTRICT FOR

SCHOOL OFFICERS

11. MEASURE I FUNDING FOR THE ONTARIO SILVER S.T.A.R.S. PROGRAM

12. SUMMER 2022 LEGISLATIVE UPDATE

13. AN AMENDMENT TO THE MASTER AGREEMENT WITH ORACLE AMERICA, INC FOR

PEOPLESOFT LICENSING INCREASE AND ONE-YEAR ANNUAL SUPPORT RENEWAL

14. AWARD OF A CONSTRUCTION CONTRACT FOR THE CITY HALL FIRST FLOOR OFFICE

IMPROVEMENTS PROJECT

15. A DEVELOPMENT IMPACT FEE CREDIT AGREEMENT (FILE NO. PDIF21-003) BETWEEN THE CITY OF ONTARIO AND KL LHB DSD AIV LLC., FOR FACILITY CONSTRUCTION ASSOCIATED WITH TRACT MAP 20399 (FILE NO. PMTT21-007), AT THE SOUTHEAST CORNER OF Homeland Security and the California Office of Emergency Services provided through the FY 2021 UASI Grant Program.

That the City Council approve and authorize the City Manager to execute a one-year Cost Sharing Agreement (on file in the Records Management Department) with the Chaffey Joint Union High School District for three school resource officers in the amount of $255,000.

That the City Council approve a funding Agreement for Measure I funds with Omnitrans for Fiscal Years 2022-23 and 2023-24 in the amount of $675,582.

That the City Council receive and file this report on State and Federal activities.

That the City Council authorize the City Manager to execute an Amendment to the existing Master Agreement (on-file in the Records Management Department) with Oracle America, Inc. of Redwood Shores, California, to amend Peoplesoft incremental licensing fees (ILF) and renew the annual support with Oracle America, Inc through May 2023 for a total not-to-exceed of $273,097.

That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute Construction Contract No.

D&C21-004 with New Millennium Construction Services, Inc., of Chino Hills, California, for the City Hall First Floor Office Improvements Project for the construction of three new enclosed offices in the contract amount of $116,000;
B. Authorize a 10% contingency of $11,600 to address any unforeseen issues that may arise during construction; and
C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 6 ARCHIBALD AVENUE AND ONTARIO RANCH ROAD, WITHIN THE GRAND PARK SPECIFIC PLAN

16. AN AMENDMENT TO THE MAINTENANCE SERVICES AGREEMENT FOR MAINTENANCE OF COMMERCIAL BIN CONTAINERS WITH CMAX COMMERCIAL MAINTENANCE, INC.

17. AN AMENDMENT TO THE SUBSCRIPTION LICENSE AGREEMENT FOR POLARIS INTEGRATED

LIBRARY SYSTEM

18. A RESOLUTION APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20157, LOCATED ON THE EAST SIDE OF MILL CREEK AVENUE, APPROXIMATELY 530 FEET NORTH OF EUCALYPTUS AVENUE
ATTACHMENT: Tract Map 20157^01 EXH A
ATTACHMENT: Tract Map 20157 02 RESO^RM.docx

19. AMERICORPS COMPETITIVE CONTINUATION GRANT FOR 2022-23 That the City Council approve the Development Impact Fee Credit Agreement (File No. PDIF21- 003) between the City of Ontario and KL LHB DSD AIV LLC, for facility construction associated with Tract Map 20399 (File No. PMTT21-007), located at the southeast corner of Archibald Avenue and Ontario Ranch Road within the Grand Park Specific Plan, and authorize the City Manager to execute the Agreement.

That the City Council authorize the City Manager or his designee to execute Amendment No. 2 (on file with the Records Management Department) to the Maintenance Services Agreement with CMAX Commercial Maintenance, Inc. of Ontario, California, in the amount of $70,000, increasing the not-to-exceed amount to $165,000 and extending the term of the Agreement to June 30, 2023, for the maintenance of commercial bin containers.

That the City Council approve and authorize the City Manager or designee to execute Amendment No. 1 (on file with the Records Management Department) with Innovative Interfaces Incorporated, of Emeryville, California. This Amendment removes the cloud hosting and related fees and extends the term of the Agreement through July 2026, for a revised total not-to-exceed amount of $223,234.

That the City Council adopt a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20157, located on the east side of Mill Creek Avenue, approximately 530 feet north of Eucalyptus Avenue, within the Esperanza Specific Plan.

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

APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20157, LOCATED ON THE EAST SIDE OF MILL CREEK AVENUE, APPROXIMATELY 530 FEET NORTH OF EUCALYPTUS AVENUE.

That the City Council take the following actions:

A. Authorize the City Manager or designee to execute grant documents and accept a CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 7 20. A PROFESSIONAL SERVICES AGREEMENT FOR THE 2022 UPDATE TO ONTARIO RANCH

RESIDENTIAL WATER DEMAND FACTORS PROJECT

21. AMENDMENTS TO THE PROFESSIONAL SERVICES AGREEMENTS FOR PRINTING SERVICES

AND GRAPHIC DESIGN SERVICES RELATED TO THE ONTARIO LIVING MAGAZINE

22. PURCHASE OF WATER SYSTEM MATERIALS

23. PROFESSIONAL DESIGN SERVICES AGREEMENT FOR WELL NO. 53 ATTACHMENT: FIGURE 1.pdf

24. AUTHORIZE THE PURCHASE OF FLEET VEHICLES
$375,999 AmeriCorps Competitive Continuation Grant for October 2022 through September 2023 to fund the Ontario Promise Corps Project.

B. Authorize the City Manager or designee to accept $56,001 of funding provided by the American Rescue Plan Act for the 2022-23 AmeriCorps Competitive Continuation Grant.

C. Authorize the City to cash match an in-kind commitment of $390,374.

That the City Council approve and authorize the City Manager or his designee to execute a Professional Services Agreement (on file in the Records Management Department) with A&N Technical Services, Inc. of Encinitas, California, for the 2022 Update to Ontario Ranch Residential Water Demand Factors project for a not-to-exceed amount of $114,475 and from a term of August 19, 2022 to April 28, 2023.

That the City Council take the following actions:

A. Approve and authorize the City Manager or designee to execute an Amendment with Eclipse Printing & Graphics LLC, DBA James Litho, of Ontario, California, in the amount of $122,441.

B. Approve and authorize the City Manager or designee to execute an Amendment with Public Advertising Agency Inc., of Murrieta, California, in the amount of $30,006.

That the City Council approve and authorize the purchase of miscellaneous waterworks materials in the amount of $265,000 with United Water Works Inc. of Santa Ana, California; and $265,000 with Western Water Works Supply Co., of Chino Hills, California, for a total aggregate not-to-exceed amount for $530,000, at the set pricing levels per Bid No. 1537.

That the City Council approve and authorize the City Manager or his designee to execute a Professional Design Services Agreement (on file in the Records Management Department) with Albert A. Webb Associates Inc., of Riverside, California, for Well No. 53 in the not-to-exceed amount of $566,006 and from a term of August 16, 2022 to August 16, 2025.

That the City Council take the following actions:

A. Authorize the cooperative purchase and delivery of five Ford Escape vehicles in the amount of $153,500, one for the Facilities Maintenance Department, one for the CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 8 25. A PROFESSIONAL SERVICES AGREEMENT FOR CONSULTING SERVICES, APPLICATION

DEVELOPMENT AND DATABASE ADMINISTRATION

26. AN AMENDMENT TO THE ONTARIO STATION COOPERATIVE AGREEMENT NO. 93-062 WITH

THE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY

27. A REIMBURSEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS BETWEEN THE CITY OF ONTARIO AND TIPPING DEVELOPMENT, INC.

Community Improvement Department, one for the Engineering Department, one for the Police Department, and one for the Utilities Department, and three Chevrolet Police Tahoe’s in the amount of $140,227 for the Police Department from National Auto Fleet Group of Watsonville, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 091521-NAF;
B. Authorize the cooperative purchase and delivery of one Freightliner Hydro Excavator truck in the amount of $676,611 for the Utilities Department from GapVax of Johnstown, Pennsylvania, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 101221-GPV;
C. Authorize the cooperative purchase and delivery of six CNG Autocar Refuse Front Loading trucks in the amount of $2,355,960, five CNG Autocar Refuse Automated Side Loading trucks in the amount of $1,935,000, and one CNG Roll Off Refuse truck in the amount of $315,650 for the Integrated Waste Department from Velocity Truck Centers of Whittier, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 060920-ATC; and
D. Authorize the cooperative purchase and delivery of two CNG Freightliner Dump trucks in the amount of $472,894 for the Parks and Maintenance Department, one Ford F650 Stakebed truck in the amount of $166,184 for the Integrated Waste Department, and one Ford F450 Service Body truck in the amount of $153,908 for the Utilities Department from PB Loader Corporation of Fresno, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 080521-PBL.

That the City Council authorize the City Manager to execute a three-year Professional Services Agreement (on file with the Records Management Department) with ICS Software, LLC, of Claremont, California, for information technology consulting services, in an amount not to exceed $150,000 annually, for a total not to exceed $450,000.

That the City Council approve and authorize the City Manager, or his designee, to execute Amendment No. 1 (on file with the Records Management Department) to the Cooperative Agreement with the San Bernardino County Transportation Authority (SBCTA) to further clarify the roles and responsibilities of SBCTA and the City of Ontario with regard to the management and insurance of the jointly owned property at the Ontario Metrolink Station.

That the City Council adopt a Resolution approving a Reimbursement Agreement ("Agreement") between the City of Ontario ("City") and Tipping Development, Inc. ("Developer"), and authorize the City Manager to execute the Agreement and all other documents required for implementation of the Agreement.

CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 9 ATTACHMENT: Tipping Reimbursement Agmt Exhibit A^01
ATTACHMENT: Tipping Reimbursement Agmt RESO^02^RM
ATTACHMENT: Tipping Reimbursement Agmt Final^03.pdf

28. A PUBLIC HEARING TO CONSIDER CITY COUNCIL CERTIFICATION OF A SUPPLEMENTAL

ENVIRONMENTAL IMPACT REPORT, INCLUDING THE ADOPTION OF A MITIGATION

MONITORING AND REPORTING PROGRAM AND A STATEMENT OF OVERRIDING CONSIDERATIONS; APPROVAL OF THE ONTARIO PLAN 2050 UPDATE GENERAL PLAN AMENDMENT; AND AN UPDATE TO THE COMMUNITY CLIMATE ACTION PLAN&NBSP;

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

APPROVING A REIMBURSMENT AGREEMENT BETWEEN THE CITY OF ONTARIO AND TIPPING DEVELOPMENT INC., FOR COSTS ASSOCIATED WITH THE CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS.

PUBLIC HEARINGS
Pursuant to Government Code Section 65009, if you challenge the City’s zoning, planning or any other decision in court, you may be limited to raising only those issues you or someone else raised at the public hearing described in this notice, or in written correspondence delivered to the City Council at, or prior to the public hearing. Affidavits of posting compliance, for all items below, are on file with the Records Management Department.

That the City Council consider the following:

A. Adopt the Resolution certifying the Supplemental Environmental Impact Report ("SEIR") (State Clearinghouse No. 2021070364), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations; and B. Adopt Resolutions approving The Ontario Plan ("TOP") 2050 update General Plan Amendment (File No. PGPA20-002) to the Vision, Governance Manual, and Policy Plan components of TOP; and
C. Adopt the Resolution approving the update to the Community Climate Action Plan ("CCAP") (File No. PADV22-002).

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

CERTIFYING THE PROGRAM SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT (STATE CLEARINGHOUSE NO. 2021070364) FOR THE ONTARIO PLAN 2050 TECHNICAL UPDATE FOR FILE NO. PGPA20-002 PART A AND ADOPT

ENVIRONMENTAL FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL

QUALITY ACT, A STATEMENT OF OVERRIDING CONSIDERATIONS AND A MITIGATION MONITORING AND REPORTING PROGRAM.

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVE THE ONTARIO PLAN ("TOP") GOVERNANCE MANUAL, A POLICY

COMPONENT OF THE ONTARIO PLAN SUPPORTING A BUSINESS PLAN APPROACH CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 10 ATTACHMENT: File Nos. PGPA20-002 PADV22-002 Exhibit A - TOP 2050 Public Outreach Timeline
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^01 PC Backup ATTACHMENT: File Nos. PGPA20-002 PADV22-002 TOP 2050 Update^02 RESO PART A SEIR^RM
ATTACHMENT: File Nos. PGPA20-002 PADV22-002 TOP 2050 Update^03 ATT A FSEIR ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^04 ATT B FOFSOC
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^05 ATT C MMRP
ATTACHMENT: 20220816 File Nos. PGPA20-002 PADV22-002 TOP 2050 Update^06 RESO PART B Gov Vision^RM
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^07 ATT A_Vision
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^08 ATT B_Governance
ATTACHMENT: File Nos. PGPA20-002 PADV22-002 TOP 2050 Update^09 RESO PART C Policy Plan 1^RM
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^10 ATT A Policy Plan
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^11 ATT B Vulnerability Study
ATTACHMENT: File Nos. PGPA20-002 PADV22-002 TOP 2050 Update^12 RESO PART D CCAP^RM
ATTACHMENT: File Nos. PGPA20-002 & PADV22-002 TOP 2050 Update^13 ATT A_ CCAP

29. A PUBLIC HEARING TO CONSIDER ADOPTION OF A RESOLUTION TO UPDATE AND MODIFY

DEVELOPMENT IMPACT FEES
TO GOVERNANCE AND APPROVING TOP VISION. RELATED FILE NO. PGPA20-002 - PART B.

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

APPROVE AN AMENDMENT TO THE ONTARIO POLICY PLAN (GENERAL PLAN), FILE NO. PGPA20-002.

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

APPROVING AN UPDATE TO THE COMMUNITY CLIMATE ACTION PLAN, AN

IMPLEMENTATION COMPONENT OF THE ONTARIO PLAN SUPPORTING THE SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT (SCH 2021070364) FOR FILE NO. PADV22-002.

That the City Council consider and adopt a Resolution to update and modify the City’s Development Impact Fees (DIF).

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 11 ATTACHMENT: Development Impact Fee (DIF) Update^01 Proposed Consolidated DIF Schedule
ATTACHMENT: Development Impact Fee (DIF) Update 02^RESO^RM ATTACHMENT: Development Impact Fee (DIF) Update^03 Draft Nexus Report ATTACHMENT: Development Impact Fee (DIF) Update^04 Letters of Support

30. A RESOLUTION AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 57 (NEUHOUSE) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $13 MILLION AND RELATED MATTERS ATTACHMENT: CFD No. 57 Neuhouse 01 RESO Authorizing Issuance of Bonds^RM.docx
UPDATING AND MODIFYING DEVELOPMENT IMPACT FEES.

ADMINISTRATIVE REPORTS/DISCUSSION/ACTION
That the City Council consider and adopt a Resolution authorizing the issuance of City of Ontario Community Facilities District No. 57 (Neuhouse) Special Tax Bonds, Series 2022.

A. Authorize the issuance of special tax bonds for public improvements required to facilitate the development of the Neuhouse project and the Ontario Ranch development; B. Approve the forms of the Indenture, the Bond Purchase Agreement, the Continuing Disclosure Agreement, and the Preliminary Official Statement; C. Authorize a negotiated sale of the special tax bonds to Stifel, Nicolaus & Company, Incorporated in accordance with the terms of the Bond Purchase Agreement; and D. Authorize the execution of the Indenture, the Bond Purchase Agreement, the Continuing Disclosure Agreement, a deemed final certification in connection with the Preliminary Official Statement, a final Official Statement and other documents in connection with the issuance of the bonds by the City Manager or the other specified authorized officers.

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

AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 57 (WEST HAVEN) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $13,000,000.00,

AUTHORIZING THE EXECUTION AND DELIVERY OF AN INDENTURE, A BOND

PURCHASE AGREEMENT, AND A CONTINUING DISCLOSURE AGREEMENT,

AUTHORIZING THE DISTRIBUTION OF AN OFFICIAL STATEMENT IN CONNECTION

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

STAFF MATTERS
City Manager Ochoa

COUNCIL MATTERS
CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 12 Mayor Leon
Mayor pro Tem Wapner
Council Member Bowman
Council Member Dorst-Porada
Council Member Valencia

ADJOURNMENT
CITY OF ONTARIO Regular City Council/Housing Authority Meeting CITY HALL 303 EAST B STREET, ONTARIO CA 91764 • www.OntarioCA.gov 13

Page 1 of 3 ends

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) August 16, 2022
ROLL CALL: Wapner _, Bowman _, Dorst-Porada _, Valencia _, Mayor / Chairman Leon _.

STAFF: City Manager / Executive Director __, City Attorney __ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.95, CONFERENCE WITH LEGAL COUNSEL: San Bernardino Workers’ Compensation Appeals Board, EAMS Case No. ADJ12109360
No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1010-521-27; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Best Market; Under negotiation: Price and terms of payment.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ 14

Page 2 of 3 ends

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) August 16, 2022
(continued)
In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1010-521-26; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Dan & Sara Clark Family Trust; Under negotiation: Price and terms of payment.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1048-564-05; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Y & A Investments, LLC.; Under negotiation: Price and terms of payment.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ 15

Page 3 of 3 ends

CITY OF ONTARIO

CLOSED SESSION REPORT
City Council // Housing Authority // Other // (GC 54957.1) August 16, 2022
(continued)
In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1048-564-04; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Y & A Investments, LLC.; Under negotiation: Price and terms of payment.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ In attendance: Wapner _, Bowman _, Dorst-Porada _,Valencia _, Mayor / Chairman Leon _.  GC 54956.8, CONFERENCE WITH REAL PROPERTY NEGOTIATORS Property: APN: 1049-057-05; City/Authority negotiator: Scott Ochoa or his designee; Negotiating parties: Thee Aguila Inc.; Under negotiation: Price and terms of payment.

No Reportable Action Continue Approved
/ / / / / /
Disposition: _________________________________________________________________ Reported by:
___________________________________________
City Attorney / City Manager / Executive
16 Department: Community Improvement
Prepared By: Douglas J Sorel
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

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

SUBJECT: COMMUNITY IMPROVEMENT PROPERTY RECOGNITION PROGRAM AWARDS

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

SPECIAL CEREMONIES
RECOMMENDATION: That the City Council present the Community Improvement Property Recognition Awards to the selected recipients.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Focus Resources in Ontario's Commercial and Residential Neighborhoods Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS: The Community Improvement Department developed the Property Recognition Program to acknowledge residential property owners who have demonstrated outstanding maintenance or significant improvement to their properties and celebrate their dedication to beautifying Ontario and building better neighborhoods.

The Neighborhood Action Team, comprised of Staff from various City Departments, considered each category and chose the following recipients:

Outstanding Property Award (Owner-Occupied) - 1342 North Euclid Avenue - Norman & Helen Goza
Outstanding Property Award (Rental) - 1119 South Euclid Avenue - Ted & Stella Triantos Property Beautification Award (Owner-Occupied) - 587 West Armsley Square - Miguel & Nanette Llamas
Property Beautification Award (Rental) - 1352 West Fifth Street - West Fifth Apartments, LLC. 17 Community Improvement
Property Recognition
Program Awards
Presented By: Scott Murphy, Executive Director
August 16, 2022
18 Outstanding Property Award
Owner-Occupied
1342 North Euclid Avenue
Norman & Helen Goza
19 Outstanding Property Award
Rental Property
1119 South Euclid Avenue
Ted & Stella Triantos
20 Property Beautification Award
Owner Occupied
587 West Armsley Square
Miguel & Nanette Llamas
21 Property Beautification Award
Rental Property
1352 West Fifth Street
West Fifth Apartments LLC.
22 Make a Nomination
• Online Nomination Form
• https://www.ontarioca.gov/CommunityImprovement
• Via Telephone
• Community Improvement – (909) 395-2007
23 ONTARIO CITY COUNCIL/

ONTARIO HOUSING AUTHORITY

MINUTES
July 19, 2022
(Not Official Until Approved)

JOINT MEETINGS
The regular meetings of the Ontario City Council and Housing Authority were held on Tuesday, July 19, 2022 at Ontario City Hall, 303 E. B Street Ontario, California and a teleconferencing location at 119 E. Belmont Street, Ontario, California.

CALL TO ORDER
Mayor pro Tem Wapner called the joint meetings to order at 6:30 p.m.

ROLL CALL
PRESENT: Mayor/Chairman Paul S. Leon (Via Teleconference) Mayor pro Tem/Vice Chair: Alan D. Wapner
Council/Authority Members: Jim W. Bowman, Debra Dorst-Porada and Ruben Valencia
ABSENT: Council/Authority Members: None.

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

PLEDGE OF ALLEGIANCE
The Pledge of Allegiance was led by Mayor pro Tem Wapner.

INVOCATION
Pastor Pete Edwardson, Calvary Baptist Church.

PUBLIC COMMENTS
There were three emailed comments:

Lory Masonis, submitted questions regarding Item No. 18.

May Morales, in support of local agriculture.

Jesse Delgado, regarding code violations throughout the City of Ontario.

Mayor pro Tem Wapner called on the first speaker:

Stephanie, spoke on the importance of pedestrian safety. 24 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 2 of 17 ends

Randy Bekendam, spoke in support of local agriculture.

Chris Robles, read a letter from his attorney Scott Rafferty noting issues the Plaintiff had with the districting process.

Armando Rodriguez, spoke on upcoming events hosted by the Hispanic Chamber of Commerce.

Luisano Quezada, representative for Congresswoman Norma Torres, spoke on homelessness issues, and his request for documents.

Spencer Resnik, not present when called upon.

AGENDA REVIEW/ANNOUNCEMENTS
City Manager Ochoa announced an update to Item No. 22 a Resolution for placement of special assessments on the San Bernardino County tax rolls noting payments from property owners reflect a reduced amount of $146,058.76.

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

1. APPROVAL OF MINUTES
Minutes for the Regular Meetings of the City Council and Housing Authority of June 21, 2022, approving the same as on file in the Records Management Department.

2. BILLS & PAYROLL
Bills from June 17, 2022 through June 30, 2022 in the amount of $20,491,488.04 and Payroll from June 5, 2022 through June 18, 2022 in the amount of $3,823,883.74, when audited by the Finance Department.

3. CONTRACT AWARD FOR EMERGENCY MASS NOTIFICATION SYSTEM The City Council approved a contract for up to five years for a not-to-exceed amount of $300,000 ($60,000 annually) with Everbridge, Inc. to maintain and enhance the current Emergency Mass Notification System (AlertOntario).

4. A CONSTRUCTION CONTRACT AND AN AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT FOR THE 2022 STREET MAINTENANCE SLURRY

SEAL, CAPE SEAL & CDBG PAVEMENT MANAGEMENT REHABILITATION

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

Page 3 of 17 ends

The City Council:

A. Awarded a construction contract with Pavement Coatings Co. of Jurupa Valley, California, for the 2022 Street Maintenance Slurry Seal, Cape Seal & CDBG Pavement Rehabilitation Project (Project) in the amount of $2,004,074 and authorized the City Manager, or his designee, to execute said contract and all related documents, and file a notice of completion at the conclusion of all construction activities; and
B. Approved and authorized the City Manager, or his designee, to execute an amendment to the Professional Services Agreement with Group Delta Consultants, Inc. of Anaheim, California, to provide on-call geotechnical consulting and materials testing for the Project in the amount of $4,375,000 for a revised total authorized expenditure of $490,836.

5. AN AMENDMENT TO A PROFESSIONAL SERVICES AGREEMENT WITH KLEINFELDER, INC. FOR ON-CALL GEOTECHNICAL CONSULTING,

MATERIALS TESTING AND COMPACTION TESTING SERVICES
The City Council approved and authorized the City Manager, or his designee, to execute Amendment No. 18 to the on-call Professional Services Agreement with Kleinfelder, Inc., of Ontario, California, to provide on-call geotechnical consulting, materials testing and compaction testing services for the 2022 Fall Pavement Rehabilitation Project in the amount of $50,000 for a revised not-to-exceed total of $1,642,115, and extend the term contract through December 31, 2023 for the completion of this construction project and other ongoing construction projects, unless earlier terminated to allow for existing contracts to finalize.

6. A PROFESSIONAL SERVICES AGREEMENT FOR THE MASTER PLAN OF

DRAINAGE UPDATE PROJECT
The City Council approved a Professional Services Agreement with Michael Baker International, Inc., of Ontario, California to provide professional engineering services for the Master Plan of Drainage Update Project in the amount of $483,758; and authorized the City Manager, or his designee, to execute said Agreement and future amendments within the authorization limits.

7. AN AMENDMENT TO THE GOODS & SERVICES AGREEMENT FOR PARTS

AND REPAIRS OF REFUSE TRUCK BODIES WITH AMREP MANUFACTURING

COMPANY
The City Council authorized the City Manager or his designee to execute Amendment No. 2 to the Goods & Services Agreement with AMREP Manufacturing Company of Ontario, California, in the amount of $200,000, increasing the not-to-exceed amount to $1,650,000 for parts and repairs of refuse truck bodies. 26 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 4 of 17 ends

8. A GOODS AND SERVICES AGREEMENT FOR PROCUREMENT OF ASPHALT

MATERIALS
The City Council authorized the City Manager to execute an Amendment to the existing three-year Service Agreement with Granicus, LLC, of Saint Paul, Minnesota, for the purchase of new hardware and subscription for a total not-to-exceed $105,912.

9. AUTHORIZE THE PURCHASE OF FLEET VEHICLES
The City Council authorize the cooperative purchase and delivery of 10 Ford Police Utility Vehicles for the Police Department in the amount of $416,865 from National Auto Fleet Group of Watsonville, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 091521-NAF.

10. DECLARATION OF MANDATORY WATER RESTRICTIONS - STAGE 3 The City Council implemented Stage 3 of the City’s Municipal Code Water Conservation Plan.

11. AN AMENDMENT TO ON-CALL DESIGN SERVICES AGREEMENT FOR SEWER

IMPROVEMENTS FOR THE PIEMONTE OVERLAY AND SURROUNDING
AREAS
The City Council approved and authorized the City Manager to execute Amendment No. 8 to the On-Call Design Services Agreement with Stantec Consulting Services, Inc., of Irvine, California, in the amount of $280,609.

12. AN AMENDMENT TO THE MAINTENANCE SERVICES AGREEMENT FOR

MAINTENANCE AND REPAIRS OF THE COMPRESSED NATURAL GAS

FUELING STATION WITH CLEAN ENERGY
The City Council approved and authorized the City Manager or his designee to execute Amendment No. 1 to the Maintenance Services Agreement with Clean Energy of Newport Beach, California, in the amount of $87,386, increasing the not-to-exceed amount to $175,000 and extending the term of the Agreement to June 30, 2023, for maintenance and repairs of the City’s compressed natural gas (CNG) fueling station.

13. PROFESSIONAL SERVICES AGREEMENT FOR THE EVALUATION OF AN

ADVANCED WASTEWATER PURIFICATION FACILITY
The City Council approved and authorized the City Manager or his designee to execute a Professional Services Agreement with Stetson Engineering Inc. of Covina, California, for the Evaluation of an Advanced Wastewater Purification Facility Alternative Supply Program for an amount not-to-exceed $186,148. 27 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 5 of 17 ends

14. AN AMENDMENT TO THE GOODS & SERVICES AGREEMENT FOR TIRE

REPAIR AND RETREADING WITH DANIELS TIRE SERVICE
The City Council authorized the City Manager or his designee to execute Amendment No. 4 to the Goods & Services Agreement with Daniels Tire Service of Santa Fe Springs, California, in the amount of $200,000, increasing the not-to-exceed amount to $600,000 and extending the term of the Agreement to June 30, 2023, for tire repair and retreading.

15. AN AMENDMENT TO THE GOODS & SERVICES AGREEMENT FOR THE

PROCUREMENT OF NEW TIRES AND TIRE CASINGS WITH DANIELS TIRE

SERVICE
The City Council authorized the City Manager or his designee to execute Amendment No. 3 to the Goods & Services Agreement with Daniels Tire Service of Santa Fe Springs, California, in the amount of $220,000, increasing the not-to-exceed amount to $740,000 and extending the term of the Agreement to June 30, 2023, for the procurement of new tires and tire casings.

16. AN AMENDMENT TO THE PROFESSIONAL SERVICES AGREEMENT WITH THE 20/20 NETWORK FOR COMMUNICATIONS CONSULTING
The City Council approved and authorized the City Manager or his designee to execute Amendment No. 1 to the Professional Services Agreement with The 20/20 Network of Upland, California, for three additional years at $60,000 per year, $180,000 total, and a new total not-to-exceed contract amount of $232,000.

17. PROFESSIONAL SERVICES AGREEMENT WITH RON IVIE, CONSULTANT,

FOR BROADBAND STRATEGY, DEVELOPMENT, AND OPERATIONS

SERVICES
The City Council authorized the City Manager or his designee to execute a Professional Services Agreement for up to five years with Ron Ivie, Consultant, of Boise, Idaho, for broadband strategy, development and operations support consulting services for a not-to-exceed amount of $900,000.

18. APPROVAL OF ALLOCATION AND SPENDING PLAN FOR THE BUREAU OF

JUSTICE ASSISTANCE EDWARD BYRNE MEMORIAL JUSTICE ASSISTANCE GRANT PROGRAM FOR FISCAL YEAR 2021
The City Council approved and authorized the City Manager to execute all documents necessary to participate in the Bureau of Justice Assistance (BJA) Edward Byrne Memorial Justice Assistance Grant (JAG) Program; and approve the proposed $47,878 grant spending plan.
28 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 6 of 17 ends

19. PURCHASE OF WATER METERS AND REPAIR PARTS
The City Council approved and authorized the sole source purchase of new water meters and repair parts for a total not-to-exceed amount of $2,700,000 from HydroPro Solutions of Ontario, California.

20. A RESOLUTION APPROVING FOUR SEPARATE GROUND LEASES BETWEEN

THE CITY OF ONTARIO AND OTC LOT A OWNER, LLC, THE CITY OF ONTARIO

AND OTC LOT B OWNER, LLC, THE CITY OF ONTARIO AND OTC LOT C

OWNER, LLC, AND THE CITY OF ONTARIO AND OTC LOT D OWNER, LLC The City Council ("City") considered and:

A. Adopted a Resolution approving four separate Ground Leases (each a "Ground Lease" and collectively, the "Ground Leases") between the City of Ontario and OTC Lot A Owner, LLC, the City of Ontario and OTC Lot B Owner, LLC, the City of Ontario and OTC Lot C Owner, LLC, and the City of Ontario and OTC Lot D Owner, LLC (each a "Tenant") for City-owned property located at 4000 East Ontario Center Parkway and the southeast and southwest corners of Via Piemonte and Via Villagio (APNs: 0210-205-01, 0210-204-38, and 0210-204-39) (on file with the Records Management Department).

B. Authorized the City Manager or his designee to further negotiate and execute the Ground Leases and sign all documents necessary to implement the Ground Leases.

RESOLUTION NO. 2022-110 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, APPROVING FOUR SEPARATE GROUND LEASES, TO WIT: BETWEEN THE CITY OF ONTARIO AND OTC LOT A OWNER,

LLC, BETWEEN THE CITY OF ONTARIO AND OTC LOT B OWNER, LLC,

BETWEEN THE CITY OF ONTARIO AND OTC LOT C OWNER, LLC, AND

BETWEEN THE CITY OF ONTARIO AND OTC LOT D OWNER, LLC WITH RESPECT TO APPROXIMATELY 10.49 ACRES OF LAND LOCATED AT 4000

EAST ONTARIO CENTER PARKWAY AND THE SOUTHEAST AND SOUTHWEST CORNERS OF VIA PIEMONTE AND VIA VILLAGIO (APNS: 0210-205-01, 0210-204-38, AND 0210-204-39).

21. PROFESSIONAL SERVICES AGREEMENTS WITH KENGRAPHICS, ECLIPSE

PRINTING AND GRAPHICS, LLC DBA JAMES LITHO, AND ULTIMATE PRINT

SOURCE FOR PRINT SERVICES
The City Council awarded, approved, and authorized the City Manager, or his designee to execute three (3) separate Professional Services Agreements with Kengraphics of Upland, California; Eclipse Printing and Graphics, LLC dba James Litho of Ontario, California; and Ultimate Print Source of Ontario, California to provide Print Services for up to five years for a total not-to-exceed amount of $500,000 for all three vendors.
29 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 7 of 17 ends

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

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

RESOLUTION NO. 2022-111 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, ADOPTING A REPORT REQUESTING THE

PLACEMENT OF SPECIAL ASSESSMENTS ON PROPERTY TAX BILLS FOR

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

23. ADOPTION OF AN ORDINANCE AMENDING CHAPTER 3 OF TITLE 6 OF THE

ONTARIO MUNICIPAL CODE RELATING TO NON-WASTE REPORTING

REQUIREMENTS
The City Council considered and adopted an Ordinance amending Chapter 3 of Title 6 of the Ontario Municipal Code related to Non-Waste Reporting Requirements and finding the action exempt from CEQA. Introduction and First reading took place at a regular City Council meeting on July 5, 2022.

ORDINANCE NO. 3216 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING CHAPTER 3 (INTEGRATED SOLID WASTE MANAGEMENT) OF TITLE 6 (SANITATION AND HEALTH) OF THE

ONTARIO MUNICIPAL CODE RELATING TO NON-WASTE REPORTING
REQUIREMENTS.

24. APPROVAL OF PROFESSIONAL SERVICES AGREEMENT WITH SECURITAS

SECURITY SERVICES USA, INC REFERENCE UNARMED SECURITY

SERVICES AT CITY LOCATIONS
The City Council authorized the City Manager to execute a Professional Services Agreement with Securitas Security Services USA, Inc ("Securitas") for unarmed Security Services at various City locations for up to 5 years, for an amount not to exceed $5,418,006 which includes an optional two-year extension.

PUBLIC HEARINGS

25. A PUBLIC HEARING TO CONSIDER ORDINANCES APPROVING
DEVELOPMENT AGREEMENTS (FILE NOS. PDA22-003-A, B, C, AND D)

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

ESTABLISH THE TERMS AND CONDITIONS ASSOCIATED WITH A
DEVELOPMENT PLAN (FILE NO. PDEV22-014)
30 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 8 of 17 ends

The City Council introduced and waived further reading of Ordinances approving Development Agreements (File Nos. PDA22-003-A, B, C, and D) to establish the terms and conditions associated with a Development Plan (File No. PDEV22-014) to construct up to 694 residential units and 71,500 square feet of commercial/office/retail uses on 10.49 acres of land located at 4000 East Ontario Center Parkway and the southeast and southwest corners of Via Piemonte and Via Villagio, within the Mixed-Use land use district (Subareas 8, 11, 16, and 17) of the Piemonte Overlay of the Ontario Center Specific Plan.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There was one written communication from Lory Masonis in opposition.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

ORDINANCE NO. 3217 (FIRST READING) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO.

PDA22-003-A, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF

ONTARIO AND OTC LOT A OWNER LLC, TO ESTABLISH THE TERMS AND CONDITIONS FOR A DEVELOPMENT PLAN (FILE NO. PDEV22-014) TO CONSTRUCT 384 RESIDENTIAL UNITS AND UP TO 25,256 SQUARE FEET OF COMMERCIAL/OFFICE/RETAIL USES, ON APPROXIMATELY 4.83 ACRES OF

LAND LOCATED AT THE SOUTHWEST CORNER OF ONTARIO CENTER
PARKWAY AND CONCOURS STREET, WITHIN MIXED-USE SUBAREA 16 OF

THE PIEMONTE OVERLAY OF THE ONTARIO CENTER SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: NORTHEAST PORTION OF 0210-205-01.

ORDINANCE NO. 3218 (FIRST READING) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO.

PDA22-003-B, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF

ONTARIO AND OTC LOT B OWNER LLC, TO ESTABLISH THE TERMS AND CONDITIONS FOR A DEVELOPMENT PLAN (FILE NO. PDEV22-014) TO CONSTRUCT 112 RESIDENTIAL UNITS AND UP TO 20,802 SQUARE FEET OF COMMERCIAL/OFFICE/RETAIL USES, ON APPROXIMATELY 1.69 ACRES OF

LAND LOCATED AT THE SOUTHWEST CORNER OF ONTARIO CENTER
PARKWAY AND FERRARI LANE, WITHIN MIXED-USE SUBAREA 17 OF THE

PIEMONTE OVERLAY OF THE ONTARIO CENTER SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: SOUTHEAST PORTION OF 0210-205-01.

ORDINANCE NO. 3219 (FIRST READING) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO.

PDA22-003-C, A DEVELOPMENT AGREEMENT BETWEEN THE CITY OF

ONTARIO AND OTC LOT C OWNER LLC, TO ESTABLISH THE TERMS AND CONDITIONS FOR A DEVELOPMENT PLAN (FILE NO. PDEV22-014) TO 31 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 9 of 17 ends

CONSTRUCT 94 RESIDENTIAL UNITS AND UP TO 11,047 SQUARE FEET OF COMMERCIAL/OFFICE RETAIL USES, ON APPROXIMATELY 1.93 ACRES OF

LAND FOR LOCATED AT THE SOUTHWEST CORNER OF ONTARIO VIA PIEMONTE AND VIA VILLAGIO, WITHIN MIXED-USE SUBAREA 8 OF THE

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

ORDINANCE NO 3220 (FIRST READING) 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.

MOTION: Moved by Council Member Dorst-Porada, seconded by Council Member Bowman and carried by unanimous roll call vote 5-0, introduce Ordinances Nos. 3217, 3218, 3219, 3220.

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

The City Council conducted 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.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

RESOLUTION NO. 2022-112 A RESOLUTION OF THE CITY COUNCIL OF THE

CITY OF ONTARIO, CALIFORNIA, APPROVING THE ENGINEER'S REPORTS

FOR THE ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING MAINTENANCE DISTRICTS NO. 1 AND 2 FOR FISCAL YEAR 2022-23. 32 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 10 of 17 ends

RESOLUTION NO. 2022-113 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.

RESOLUTION NO. 2022-114 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.

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous vote 5-0, to adopt Resolution Nos. 2022-112, 2022-113 and 2022-114.

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

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

RESOLUTION 2022-115 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.
33 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 11 of 17 ends

RESOLUTION 2022-116 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.

RESOLUTION NO. 2022-117 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.

MOTION: Moved by Council Member Bowman, seconded by Council Member Valencia and carried by unanimous roll call vote 5-0, to adopt Resolution Nos. 2022-115, 2022-116 and 2022-117.

28. 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
The City Council held a Public Hearing to review, consider, and provide direction regarding initial draft maps.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There was one written communication from Raymond Smith in support of map #10.

Mayor pro Tem Wapner opened the public hearing.

City Attorney Duran spoke on the City’s demonstration of good faith effort in the districting process. These efforts extended to Plaintiff Chris Robles by providing additional time during the public comment. He spoke on the City’s efforts to prioritize open and honest communications with the public and that the City’s compliance has surpassed the legally required number of Public Hearings; hosting nine community workshops in English and Spanish throughout the City. City Attorney Duran encouraged the City Council to listen to the public comments and consider the 16 maps before them.

Assistant City Attorney Guiboa provided background on the item, presented the 16 maps for review, and indicated that City Council should take input from the public.

Joanna Silva, spoke in support of Map #10 and opposed maps #11 through #16.

Mayor pro Tem Wapner recessed the meeting at 7:14 p.m. and reconvened at 7:17 p.m.
34 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 12 of 17 ends

Chris Robles, spoke regarding his costs of bringing litigation against the City and his communities of interest.

Tony Morino, canvassed five residents and spoke on their communities of interest.

Mo Garnder, canvassed six residents and spoke on their communities of interest.

Arsal Asif, canvassed five residents and spoke on their communities of interest.

Karen May, canvassed two residents and spoke on their communities of interest.

Andrea Galvan, asked City Council to consider all the communities of interest presented and encouraged more community engagement.

Ana Gonzalez, spoke in support of map #10.

Maria Galvan, spoke in support of map #10.

Mayor pro Tem Wapner closed the Public Hearing and opened the item for Council discussion.

City Manager Ochoa expressed his appreciation for the volunteers that went into the community to gather information. He added that smaller communities of interest could be part of larger districts and spoke on the five Public Hearings held in the districting process where members of the public have had the opportunity to speak on the matter.

Council Member Dorst-Porada noted the importance of Creekside, Eden Glen, Archibald Ranch, and the Ranch area remaining together as much as possible. She expressed concern over the historic districts being separated and noted concerns over the north-side residents between Grove Avenue, Vinyard Avenue, and Baker Avenue above 5th Street feeling left out. After much consideration she was looking more closely at maps 3, 4, 6, 10, and 11.

Council Member Bowman expressed his gratitude for the public input contributed during the Public Hearings, and noted he was looking more closely at maps 4,6,10, and 11, as they best represent majority-minority populations.

Council Member Valencia expressed gratitude towards the community input and noted that natural boundaries such as freeways, main streets and historic properties, contribute to the physical configuration of the final map and he that he was looking more closely at maps 1, 4, 6, 7, and 8.

Mayor Leon noted he was looking more closely at maps 4, 7, 10, and 13, with map #10 being his first choice. He further noted the historical changes that have occurred over the years.
35 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 13 of 17 ends

Mayor pro Tem Wapner expressed his gratitude for the volunteers who canvassed the community. He noted he is looking more closely at maps 1, 4, and 10. He spoke on his support on additional community engagement opportunities. He noted his preference for map 4, but did not like the idea of carving the Creekside community out. He encouraged moving three maps forward.

City Manager Ochoa noted the three maps with the greatest votes are 4, 6, and 10 and confirmed that Council liked map 4 with the addition of Creekside.

Mayor pro Tem Wapner received consensus on moving maps 4, 6, and 10 and inquired if formal action is necessary.

City Attorney Duran noted City Council conducted the Public Hearing, reached a consensus on maps 4, 6, and 10, and confirmed Council’s request for additional community engagement meetings. No additional action was required as this time.

Mayor pro Tem Wapner requested a calendar of future community engagement meetings and Public Hearing dates from Staff. There was no further Council discussion.

29. 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
The City Council considered and:

A. Adopted a Resolution calling a special election for proposed changes to the Rate and Method of Apportionment (the "RMA") of the existing Special Tax of City of Ontario Community Facilities District No. 35 (Countryside Phase 2 South-Facilities),
B. Adopted 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. Introduced and waived 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. Adopted 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;
36 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 14 of 17 ends

E. Adopted a Resolution calling a special election for Community Facilities District No. 35 (Countryside Phase 2 South-Facilities); and F. Adopted a Resolution declaring the results of the special election.

Mayor pro Tem Wapner moved on to the second part of this action. City Clerk Mautz announced notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

RESOLUTION NO. 2022-118 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).

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous roll call vote 5-0, to adopt Resolution No. 2022-118.

RESOLUTION NO. 2022-119 A RESOLUTION OF CHANGE OF THE CITY

COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, DECLARING RESULTS OF

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.

City Clerk Mautz opened the ballot in connection with the proceedings and declared it was in favor to the prosed rates and method.

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous roll call vote 5-0, to adopt Resolution No. 2022-119.

ORDINANCE NO. 3221 (FIRST READING) 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).

MOTION: Moved by Council Member Dorst-Porada, seconded by Council Member Bowman and carried by unanimous roll call vote 5-0, to introduce Ordinance No. 3221. 37 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 15 of 17 ends

RESOLUTION NO. 2022-120 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 SOUTHFACILITIES) IS AUTHORIZED TO INCUR.

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

MOTION: Moved by Council Member Bowman, seconded by Council Member Dorst-Porada and carried by unanimous roll call vote 5-0, to adopt Resolution No. 2022-120.

RESOLUTION NO. 2022-121 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).

MOTION: Moved by Mayor pro Tem Wapner, seconded by Council Member Dorst-Porada and carried by unanimous roll call vote 5-0, to adopt Resolution No. 2022-121.

RESOLUTION NO. 2022-122 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).

City Clerk Mautz opened the ballot in connection with the proceedings and declared it was in favor to the prosed rates and method.

MOTION: Moved by Council Member Bowman, seconded by Council Member Valencia and carried by unanimous roll call vote 5-0, to adopt Resolution No. 2022-122.

30. 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
The City Council introduced and waived 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.
38 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 16 of 17 ends

Notice of public hearing was duly given and affidavits of compliance are on file in the Records Management Department. There were no written communications.

Mayor pro Tem Wapner opened the public hearing. Hearing no speakers, he closed the public hearing.

ORDINANCE NO. 3222 (FIRST READING) AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO.

PDCA22-004, A DEVELOPMENT CODE AMENDMENT FOR 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, AND MAKING FINDINGS IN SUPPORT THEREOF.

MOTION: Moved by Council Member Dorst-Porada, seconded by Council Member Bowman and carried by unanimous roll call vote 5-0, to introduce Ordinance No. 3222.

STAFF MATTERS
City Manager Ochoa made no comments.

COUNCIL MATTERS
Council Member Valencia made no comments.

Council Member Bowman made no comments.

Council Member Dorst-Porada announced upcoming events at Ontario Museum of History & Art and the Ovitt Family Community Library.

Mayor Leon made no comments.

Mayor pro Tem Wapner made no comments.

ADJOURNMENT
Mayor pro Tem Wapner adjourned the meetings of the Joint Agencies at 8:23 p.m. and announced the next regular meeting to be held on Tuesday, August 2, 2022.

Respectfully submitted,
____________________________________

SHEILA MAUTZ, CITY CLERK/SECRETARY
39 Ontario City Council/Ontario Housing
Regular Meeting Minutes – July 19, 2022

Page 17 of 17 ends

APPROVED:
______________________________________________
ALAN D. WAPNER, MAYOR PRO TEM/VICE CHAIRMAN
40 Department: Economic Development
Prepared By: Karla Tavera
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

BERNARDINO, INLAND EMPIRE CENTER FOR ENTREPRENEURSHIP AND SMALL

BUSINESS DEVELOPMENT CENTER AND THE CITY OF ONTARIO

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve a lease agreement (on file in the Records Management Department) between California State University San Bernardino, Inland Empire Center for Entrepreneurship and Small Business Development Center, and the City of Ontario for the use of the City-owned property located at 603 North Euclid Avenue for a one-year term with the option to extend for up to two additional one-year terms.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT: There is no direct fiscal impact associated with this action. The lease rate for the property is proposed at $1.00 per month, and in return, the City will gain the monetized value of the business assistance services provided to the community by the Small Business Development Center.

BACKGROUND & ANALYSIS: In 2012, California State University San Bernardino (CSUSB), in partnership with the Inland Empire Center for Entrepreneurship (IECE), was awarded a grant to operate a Small Business Development Center (SBDC) in the Inland Empire. Downtown Ontario was identified as a prime location for a new SBDC to provide business assistance services. On April 3, 2012 the City Council approved the original lease agreement. The lease was then renewed on October 20, 2015 and July 3, 2018 with CSUSB and IECE, to operate an SBDC office in the City-owned property located at 603 North Euclid Avenue.

SBDC provides services through professional business advisors such as: development of business plans; manufacturing assistance; financial packaging and lending assistance; exporting and importing support; disaster recovery assistance; procurement and contracting aid; and market research services. Small business owners also have access to professional development courses and workshops that assist them in becoming more efficient and productive entrepreneurs. These 41 services are provided at little or no cost to businesses.

The services provided by the SBDC have resulted in significant positive impact for the local business community. The SBDC is a catalyst for daytime activity and is a valuable component of the small business growth efforts underway in Downtown Ontario. Staff recommends that the City Council approve the lease agreement with the SBDC to use the City-owned property located at 603 North Euclid Avenue for a one-year term, with the option to extend for up to two additional one-year terms.
42 Department: Fire Department
Prepared By: Sagar Patel
Staff Member Presenting:

Ray Gayk, Fire Chief
Reviewed By: Jordan T Villwock
Approved By:

HAZARD MITIGATION PLAN AND THE EMERGENCY OPERATIONS PLAN

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Accept FEMA grant funds in the award amount of $125,000 to be used specifically for consultant support on writing the emergency plans.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
FISCAL IMPACT: On May 18, 2022, the City was awarded $125,000 through the Hazard Mitigation Grant Program. These funds will be allocated at the next quarterly budget update. These grants funds will partially offset consulting service to update both the Local Hazard Mitigation Plan and the Emergency Operations Plan. The remaining $25,000 has been appropriated in Fire Mutual Aid Fund for Fiscal Year 2022-23. The contract includes a not-to-exceed amount of $150,000 through June 30, 2024.

BACKGROUND & ANALYSIS: The Local Hazard Mitigation Plan (LHMP) is required by the Federal Disaster Mitigation Act of 2000 (DMA 2000) and requires a community to have an approved hazard mitigation plan to identify policies and to take actions that can be implemented over the long term to reduce risk and future losses when an emergency or disaster occurs. Additionally, this Plan also makes the City eligible to apply for and receive FEMA hazard mitigation funds. With the current Plan set to expire in December 2023, City Staff applied for the Hazard Mitigation Grant Program in June 2021, for the maximum allowable amount of $125,000 to support updating the existing plan before said expiration. On May 18, 2022, Staff received award notification from FEMA that the grant application was approved at the requested maximum amount of $125,000. This grant has a twoyear performance period with the project ending on May 18, 2024, and a 75% Federal Share 43 ($93,750) and 25% Local Share ($31,250). The 25% Local Share will be offset by Staff salary supporting this project during the performance period. It is Staff's recommendation that the City Council accept this grant award.

Parallel to the Local Hazard Mitigation Plan update, the City's Emergency Operations Plan (EOP) was last revised in 2017, and also determined to be in need of significant updates. This is largely in part due to a reorganization within the City, a change to staffing in the recent years, and also various pieces of passed legislation at the State and Federal level requiring our EOP to include topics such as climate change and approach to vulnerable populations throughout the community.

Therefore, in June 2022, the City solicited proposals through the City's bid management system and received four viable proposal to update the Local Hazard Mitigation Plan, and optionally the Emergency Operations Plan. Atlas Planning Solutions (APS) was recommended by a review committee of City Staff. APS has demonstrated a strong background in Hazard Mitigation Plans writing, having updated many jurisdictions here within the southern California region in comparison to other proposals submitted. In recognition of the timeline to update both LHMP and EOP, Staff recommends using the awarded grant funds in conjunction with already appropriated Fiscal Year 2022-23 funds to award a contract to Atlas Planning Solutions for consulting services to update these plans with a total not-to-exceed amount of $150,000 through June 30, 2024. 44 Department: Fire Department
Prepared By: Janny Phan
Staff Member Presenting:

Ray Gayk, Fire Chief
Reviewed By: Jordan T Villwock
Approved By:

CRITICAL INCIDENT STRESS MANAGEMENT SERVICES

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager to execute up to a fiveyear Professional Services Agreement with The Counseling Team International, of San Bernardino, California, for public safety personnel support services, counseling, pre-employment psychological testing, and critical incident stress management. The total compensation shall not exceed $100,000 annually and the total not-to-exceed is $500,000 for the five-year Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
FISCAL IMPACT: The Fiscal Year 2022-23 Proposed Budget includes appropriations in the General Fund and General Liability for public safety support services, counseling, and critical incident intervention services. Funding for these services is included in the operating budgets for the Fire Department, Police Department, and Human Resources/Risk Management agencies. The total compensation shall not exceed $100,000 annually and the total not-to-exceed is $500,000 for the five-year Agreement. If additional funding is needed for a crisis, additional appropriations will be requested at that time or requested at the next quarterly budget update.

BACKGROUND & ANALYSIS: In April 2022, the City solicited proposals through the City’s bid management system from experienced firms capable of providing comprehensive employee support services such as Employee Assistance Program (EAP) services, counseling, critical incident management, hostage negotiations training, and in-service peer support training. This service is used by sworn and professional public safety employees, such as police officers, firefighters, and 911 dispatchers, who need counseling after critical incidents.

During the bid process, 72 vendors were notified about the opportunity and of that, eight vendors showed interest. Ultimately, The Counseling Team International was the only firm to submit a proposal. After reviewing the proposal, The Counseling Team International met all criteria outlined in the Request for Proposal. The Counseling Team International provides these services nationwide to over 50 organizations including cities, counties, school districts, and specializes in public safety. 45 The Counseling Team International has been under contract with the City and provided satisfactory services for the past thirty-two years, therefore, Staff is recommending the Professional Services Agreement be awarded to The Counseling Team International for public safety personnel support services, counseling, critical incident stress management, and psychological testing. 46 Department: Economic Development
Prepared By: Karen Khukoyan
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

BETWEEN THE CITY OF ONTARIO AND D STREET TOWNHOME APARTMENTS, LLC,

A CALIFORNIA LIMITED LIABILITY CORPORATION IN ACCORDANCE WITH GOVERNMENT CODE SECTION 37350 ET. SEQ.

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION:

That the City Council (“City”) consider and:

B. Authorize the City Manager/Executive Director or his designee to sign all documents necessary to implement the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
FISCAL IMPACT: The Developer will purchase approximately 0.74 acres of real property for $675,000 which will be deposited into a City Fund.

BACKGROUND & ANALYSIS: The D Street and Laurel Avenue development ("Development") is

0.737 acres (APNs 1048-354-12 and 1048-354-13), commonly known as 120 West D Street and 420 North Laurel Avenue, Ontario, CA 91762. It is bounded by Laurel Avenue on the west, E Street on the north, Euclid Avenue on the east, and D Street on the south. The Development offers an opportunity to continue Ontario’s efforts to revitalize downtown Ontario with high-density residential units, which will in turn bring in more pedestrians and visitors to create a vibrant district.

The Development location is ideally located to provide high-density residential units next to local shopping, public transportation, and other amenities that will enhance the quality of life for the 47 future residents. The Development will result in the construction of 26 three-story townhomes, consistent with the City’s Downtown Specific Plan and related development standards and design guidelines. Parking for the project will be on-site, with a two-car garage for each proposed townhome. Additional guest/visitor parking may be located in the nearby City public parking facility located at C Street and Lemon Avenue.

The developer is D Street Townhome Apartments, LLC, located in Los Angeles, California. They have developed, owned and managed residential, mixed-use and office/commercial projects at various locations throughout Southern California. The site plan has been prepared to be consistent with the development and design guidelines as contained in the Town Center Planned Unit Development.

The proposed site plan and architectural elevations are attached as Exhibit “A.” The project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15332 (Class 32, Infill Development Projects) of the CEQA Guidelines.

On May 24, 2022, the Planning Commission found that the proposed project was consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.
48 MONROVIA, CA 91016
626-602-4375 5256 S. Mission Road, Suite 404
Bonsall, CA 92003
www.summarch.com
760.724-1198
1 2
3 4
5 6 7

PROJECT SUMMARY
ZONE: MU-1/LUA-1
SITE AREA: 0.792 ACRES
TOTAL UNITS: 26 DU - 3 STORY ROW TOWNHOMES
DENSITY: 32.8 DU/AC
OCCUPANCY TYPE: R-3, U-GARAGES

UNIT SUMMARY
2 PLAN 1 1,379 S.F. 2 BD/2.5 BA
14 PLAN 2 1,336 S.F. 2 BD/2.5 BA
10 PLAN 3 1,375 S.F. 2 BD/2.5 BA
26 TOTAL UNITS
PROVIDEDPARKING:
52 GARAGE STALLS
0 OPEN STALLS
52 TOTAL STALLS

2.0STALLS PER UNIT
SITE PLAN KEYNOTES:

PROPERTY LINE
2 CA

R GARAGE PER UNIT PLANS
3-STORY TOWNHOME BLDG. (TYP.)

RECREATION AREA - SEE LANDSCAPE PLANS

TRASH ENCLOSURE

WALKWAY

ACCESSIBLE PATH OF TRAVEL

ONTARIO, CA

TIPPING DEVELOPMENT
811 S. PRIMROSE AVE, UNIT P

APRIL 4, 2022 0 20 40 80

ARCHITECTURE

SITE PLAN
SP
1 8'-1" 11
PL2
3 12
PL1
8'-0"
10 PL2 13
PL1
3 9
PL3
61 5
24'-0"
3 8
PL 3
ADA7
PL2
14 PL3

TR/REC/ORG
33'-0"
8'-1"
6'-4"
6 PL2
22'-1" 15
PL2
24'-0" 24'
-10"
10'-0"
5 PL3
2 16
PL2
26 PL 3
ADA
25 PL2
2 25'-0"
24 PL2 5'
-0"
1 4
PL3
17 PL3
4 6'-11" 28'
-0"
3 1
PL2
18 PL2
3 2
PL2
2 19
PL2
23 PL 3
ADA
22 PL2
2 5'-0"
5'-2"
1 PL3
20 PL3
23'-3" 21
PL2
W.D STREET
1373
2 TOTAL 8 26
C 3 4 12
B 4 3 12
A 1 2 2

TOTAL UNITS UNITS PER

BLDG BLDG TYPE BLDG QTY IN PROJECT

BUILDING SUMMARY
TOTAL 26
3 10 1375 2BD/2.5BA 3
2 14 1336 2BD/2.5BA 3
1 2 1379 2BD/2.5BA 3
UNIT TYPE QUANTITY TOTAL UNIT AREA BED/BATH # OF STORIES

UNIT SUMMARY
NORTH
N. LAUREL AVENUE
N00° 01' 00"W 441.02'
N00° 01' 00"W 220.51'
N00° 01' 00"W 267.51'
10'-0" 10'-0" 5'-3"
10'-0" BUILDING 1 TYPE C BUILDING 2 TYPE C BUILDING 3 TYPE B 5'-1" BUILDING 6 TYPE C BUILDING 5 TYPE B 5'-1"
7'-0" 12'-8"
10'-0" BUILDING 4 TYPE A 20'-0"
S00° 00' 34"E 80.00'
6'-0"
10'-0"
22'-5"
BUILDING 7 TYPE B BUILDING 8 TYPE B
N00° 00' 16"E 187.49'
ALLEY
220.49' N00° 00' 16"E 220.49' N00° 00' 16"E
49 TIPPING DEVELOPMENT
811 S. PRIMROSE AVE, UNIT P
MONROVIA, CA 91016
626-602-4375
APR 0 8 16 24 4, 2022
A-4 ARCHITECTURE
5256 S. Mission Road, Suite 404
Bonsall, CA 92003
www.summarch.com
760.724-1198
1 4 5 3 3 5 4 2

REAR ELEVATION REAR ELEVATION

LEFT ELEVATION

FRONT ELEVATION

RIGHT ELEVATION LEFT ELEVATION

FRONT ELEVATION

RIGHT ELEVATION
BUILDING B (SCHEME 2 SHOWN) BUILDING A (SCHEME 1 SHOWN)

ONTARIO, CA BLDG TYPE A & B EXTERIOR ELEVATIONS
2 6 7 1 6 7
9 1 2 5 7 3 3 7 5 9 2 1
1 9 2 6 5 3 4
4 2 7 10 9 5 8 1 6
7 3 5 9 1 2 8 4 6
2 1 4 8 10 7 6 9 5

MATERIAL SCHEDULE
1 ROOF - BUILT UP PARAPET
2 WALL - EXTERIOR 1620 STUCCO
3 WALL - BRICK VENEER
4 TRIM - STUCCO OVER FOAM TRIM
5 WINDOWS - VINYL W/ STUCCO O/FOAM TRIM
6 RAILING - DECORATIVE WROUGHT IRON
7 DECORATIVE AWNINGS
8 DECORATIVE LIGHT FIXTURE
9 STUCCO REGLET
10 METAL SECTIONAL GARAGE DOOR
9'-1" 9'-1" 9'-1"
41'-6" BUILDING HT.
9'-1" 9'-1" 9'-1"
41'-6" BUILDING HT.

MATERIAL & COLOR APPLICATION - COLOR SCHEME 1 - BUILDING C

MATERIAL APPLICATION COLOR MANUFACTURER PRODUCT
STUCCO 1 WALLS INCREDIBLE WHITE SW 7028 SHERWIN WILLIAMS PAINT STUCCO 2 WALLS ESSENTIAL GRAY SW 6002 SHERWIN WILLIAMS PAINT METAL ACCENT RAILINGS IRON ORE SW 7069 SHERWIN WILLIAMS PAINT

DOOR/WINDOW
/TRIM

GARAGE/UTILITY DOORS
& DOOR/WINDOW TRIM GRIZZLE GRAY SW 7068 SHERWIN WILLIAMS PAINT

BRICK VENEER WALLS CARMEL MOUNTAIN CORONADO STONE WEATHERED BRICK MATERIAL & COLOR APPLICATION - COLOR SCHEME 2 - BUILDING B

MATERIAL APPLICATION COLOR MANUFACTURER PRODUCT
STUCCO 1 WALLS ANGORA SW 6036 SHERWIN WILLIAMS PAINT
STUCCO 2 WALLS COCOA WHIP SW 9084 SHERWIN WILLIAMS PAINT METAL ACCENT RAILINGS IRON ORE SW 7069 SHERWIN WILLIAMS PAINT

DOOR/WINDOW
/TRIM

GARAGE/UTILITY DOORS
& DOOR/WINDOW TRIM GRIZZLE GRAY SW 7068 SHERWIN WILLIAMS PAINT

BRICK VENEER WALLS BEAR CREEK CORONADO STONE SPECIAL USED BRICK 50 TIPPING DEVELOPMENT
811 S. PRIMROSE AVE, UNIT P
MONROVIA, CA 91016
626-602-4375
APR 0 8 16 24 4, 2022
A-5 ARCHITECTURE
5256 S. Mission Road, Suite 404
Bonsall, CA 92003
www.summarch.com
760.724-1198
9 1 2 5 7 3

LEFT ELEVATION

REAR ELEVATION

RIGHT ELEVATION

FRONT ELEVATION
BUILDING C (SCHEME 1 SHOWN)

ONTARIO, CA BLDG TYPE C EXTERIOR ELEVATIONS
MATERIAL & COLOR APPLICATION - COLOR SCHEME 1 - BUILDING C

DOOR/WINDOW
/TRIM

GARAGE/UTILITY DOORS
& DOOR/WINDOW TRIM GRIZZLE GRAY SW 7068 SHERWIN WILLIAMS PAINT

BRICK VENEER WALLS CARMEL MOUNTAIN CORONADO STONE WEATHERED BRICK 2 4 8 10 7 6 9 5 1
3 7 5 9 1 2 8 6 4
3 7 5 9 2 1

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

CALIFORNIA, APPROVING A DISPOSITION AND DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND D STREET

TOWNHOME APARTMENTS, LLC WITH RESPECT TO
APPROXIMATELY 0.737 ACRES OF LAND LOCATED AT 120 WEST D STREET AND 420 NORTH LAUREL AVENUE (APNS: 1048-354-12 AND 1048-354-13).

WHEREAS, the City of Ontario (“City”) currently owns in fee that certain approximately 0.737-acre property (APNs 1048-354-12 and 1048-354-13), commonly known as 120 West D Street and 420 North Laurel Avenue, Ontario, CA 91762, bounded by Laurel Avenue on the west, E Street on the north, Euclid Avenue on the east, and D Street on the south, and is more specifically described in Exhibit “A” attached hereto and incorporated into this Resolution by reference (the “Property”); and WHEREAS, the City desires to sell the Property by entering into a Disposition and Development Agreement (“Agreement”) with D Street Townhome Apartments, LLC (“Developer”), a form of which is attached hereto as Exhibit “B” and incorporated into this Resolution by reference; and
WHEREAS, the Developer proposes to construct a three-story, townhome residential development project, consisting of 26 townhomes containing 52 bedrooms and a 2-car garage for each townhome (the “Project”); and
WHEREAS, the Agreement provides for the sale of the Property at fair market value, and binds Developer to construct the Project, subject to all required approvals and environmental compliance, in a timely manner, and in accordance with the terms therein; and
WHEREAS, on May 24, 2022, pursuant to Government Code section 65402, the Planning Commission adopted Resolution No. PC22-020 making findings that the proposed disposition of the Property is consistent with The Ontario Plan Policy Plan (General Plan); and
WHEREAS, the proposed sale of the Property pursuant to the Agreement is authorized by Government Code Section 37350, as it is for the common benefit, because Developer intends to build residential townhomes on the Property, which would further the goals and objectives of the City’s General Plan and the goals and objectives of the City by: (i) strengthening the City’s land use and social structure, (ii) increasing the housing supply; (iii) alleviating economic and physical blight on the Property and in the surrounding community; (iv) eliminating a vacant site that creates nuisance conditions; and (v) creating an increase in property taxes, all of which accrue to the common benefit of the City and its residents.
52 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA DOES HEREBY RESOLVE AS FOLLOWS:

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

SECTION 2. Findings. The City Council finds that the sale of the Property pursuant to the Agreement will further the goals and purposes of the City, and is in the common interest of the City and its residents.

SECTION 3. CEQA. The City Council’s approval of the Agreement does not constitute approval of any development of the Property or of other activity on the Property that would have a direct or reasonably foreseeable indirect environmental impact pursuant to CEQA. (See 14 C.C.R. §§ 15060(c); 15378(b).) Moreover, close of escrow on the Property under the Agreement, and Developer’s future use or development of the Property is expressly conditioned on CEQA compliance.

SECTION 4. Approval of Agreement. The City Council hereby approves the Agreement in substantially the form attached hereto as Exhibit B, subject to any nonsubstantive revisions which do not increase the City’s liability and are approved by the City Attorney, and authorizes the City Manager to sign and enter into the Agreement and perform the obligations of the City under the Agreement.

SECTION 5. Severability. If any provision of this Resolution or the application of any such provision to any person or circumstance is held invalid by a court of competent jurisdiction, such invalidity shall not affect other provisions or applications of this Resolution that can be given effect without the invalid provision or application, and to this end the provisions of this Resolution are severable. The City Council declares that the City Council would have adopted this Resolution irrespective of the invalidity of any particular portion of this Resolution.

SECTION 6. Effective Date. This Resolution shall become effective 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 16th day of August 2022. _____________________________________
PAUL S. LEON, MAYOR
53 ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
54 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 August 16, 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 August 16, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
55 46700.12001\35016261.6
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
between

THE CITY OF ONTARIO
a California municipal corporation
and

D STREET TOWNHOME APARTMENTS, LLC,
a California limited liability company
56 46700.12001\35016261.6
DRAFT BBK 8-11-22
1 This 2022 DISPOSITION AND DEVELOPMENT AGREEMENT (D Street and Laurel Avenue) (“Agreement”) is dated as of __________, 2022 (“Effective Date”), for reference purposes only, and is entered into by and between the City of Ontario, a California municipal corporation (“City”), and D STREET TOWNHOME APARTMENTS, LLC, a California limited liability company (“Developer”). The City and the Developer are sometimes referred to in this Agreement, each individually, as a “Party,” or collectively, as the “Parties.”

RECITALS
This Agreement is entered into with reference to the following recitals of fact (“Recitals”) that City and Developer believe to be true as of the Effective Date of this Agreement:

A. The City represents and asserts it owns and controls that certain approximately ___-acre property (APNs 104-835-412 and 104-835-413), commonly known as 120 West D Street and 420 North Laurel Avenue, Ontario, CA 91762, bounded by Laurel Avenue on the west, E Street on the north, Euclid Avenue on the east, and D Street on the south, and is more specifically described in Exhibit A attached hereto and incorporated herein by this reference (the “Property”); and
B. The Developer proposes to construct a three-story, townhome residential development project, consisting of 26 townhomes containing 52 bedrooms and a 2-car garage for each townhome and (the “Project”). The site plan for the proposed Project is attached hereto as Exhibit B and incorporated herein by this reference; and C. Parking for the Project will be on-site, and accessed from the Property’s E Street frontage. Additional guest/visitor parking may be located in the nearby City public parking facility located at C Street and Lemon Avenue; and
C. The City finds that the Developer’s proposed acquisition of the Property and subsequent construction and completion of the Project on the Property pursuant to the terms of this Agreement is in the best interest of the City and the health, safety and welfare of the City’s taxpayers and residents and is in accordance with the public purposes set forth in applicable law.

Implementation of this Agreement will further the goals and objectives of the City’s general plan by: (i) strengthening the City’s land use and social structure, and (ii) alleviating economic and physical blight on the Property and in the surrounding community; and D. The City desires to sell the Property to the Developer for the development of the Project and the Developer desires to purchase the Property from the City for the same purpose.

NOW, THEREFORE, in consideration of the mutual promises set forth in this Agreement and other good and valuable consideration, the receipt and sufficiency of which is acknowledged by City and Developer, the Parties agree as follows:
[Continued on following page]
57 46700.12001\35016261.6
DRAFT BBK 8-11-22
2 TERMS AND CONDITIONS

ARTICLE I
DEFINITIONS; REPRESENTATIONS AND WARRANTIES;

EFFECTIVE DATE

1.1 Definitions. All initially capitalized terms not otherwise defined in this Agreement shall have the following meanings:

1.1.1 “Additional Insureds” has the meaning ascribed to such term in Section 5.10.

1.1.2 “Affiliate” means and refers to any person or entity, directly or indirectly, Controlling or Controlled by or under common Control with the Developer, whether by direct or indirect ownership of equity interests, by contract or otherwise.

1.1.3 “CEQA” means the California Environmental Quality Act, Public Resources Code Sections 21000, et seq.

1.1.4 “Certificate of Completion” means the written certification of City that the construction of the Project has been completed in compliance with the terms and conditions of this Agreement, substantially in the form of Exhibit H attached to this Agreement.

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

1.1.6 “City Manager” means the City Manager of the City or his or her designee or successor in function.

1.1.7 “City Requirements” has the meaning ascribed to the term in Section

2.6.1. 1.1.8 “City’s Title Notice Response” means the written response of the City to the Developer’s Title Notice, in which the City either (i) elects to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Developer’s Title Notice, or (ii) elects not to cause the removal from the Preliminary Report of any matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that were objected to in the Developer’s Title Notice.

1.1.9 “Close of Escrow” or “Closing” means the recording of the Grant Deed for the Property in the Official Records of the Recorder of the County, and completion of each of the actions set forth in Article III by the Escrow Holder for the City to sell the Property to the Developer and the Developer to purchase the Property from the City.

1.1.10 “Closing Date” means the date that the Closing occurs. 58 46700.12001\35016261.6
DRAFT BBK 8-11-22
3 1.1.11 “Completion of Construction” means the issuance of a Certificate of Completion confirming that the final certificate of occupancy for the Project, based on the plans submitted by the Developer to the City, has been issued.

1.1.12 “Construction Commencement Date” means the date that is thirty (30) days from the Permit Issuance Date.

1.1.13 “Construction Costs” means the total cost incurred by Developer in acquiring the Property and constructing the Project in accordance with this Agreement.

1.1.14 “Construction Drawings Submittal Date” means the date when Developer submits to the City its Plans and Specifications, which date shall be no later than sixty (60) days from the Entitlement Obtainment Date.

1.1.15 “Construction Lender” means a Lender(s) that provide(s) a Construction Loan to the Developer to pay the Construction Costs of all or a portion of the Project.

1.1.16 “Construction Loan” means a Loan obtained by Developer from a Construction Lender to finance all or part of the Construction Costs in conformity with the Financing Plan.

1.1.17 “Construction Loan Deed of Trust(s)” means the Lien(s) required by a Construction Lender to secure the Developer’s performance under the associated Construction Loan.

1.1.18 “Control” means and refers to possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a person or entity, whether by ownership of equity interests, by contract or otherwise.

1.1.19 “Controlling” and “Controlled” mean and refer to exercising or having Control.

1.1.20 “County” means the County of San Bernardino, California.

1.1.21 “Developer’s Title Notice” means a written notice from the Developer to the City indicating the Developer’s acceptance of the state of the title to the Property, as described in the Preliminary Report, or the Developer’s objection to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property, describing in suitable detail the actions that the Developer reasonably believes are indicated to cure or correct each of the Developer’s objections.

1.1.22 “Developer’s Title Notice Waiver” means a written notice from the Developer to the City waiving the Developer’s previous objection in the Developer’s Title Notice to specific matters shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy for the Property.

1.1.23 “Due Diligence Investigations” means the Developer’s due diligence investigations of the Property to determine the suitability of the Property for development and 59 46700.12001\35016261.6
DRAFT BBK 8-11-22
4 operation of the Project, including, without limitation, investigations of the environmental and geotechnical suitability of the Property, as deemed appropriate in the reasonable discretion of the Developer, all at the sole cost and expense of the Developer.

1.1.24 “Due Diligence Investigation Conclusion Notice” means a written notice of the Developer delivered to the City and the Escrow Holder, prior to the end of the Due Diligence Period, indicating the Developer’s acceptance of the condition of the Property or indicating the Developer’s rejection of the condition of the Property and refusal to accept a conveyance of fee title to the Property, describing in reasonable detail the actions that the Developer reasonably believes are indicated to allow the Developer to accept the condition of the Property.

1.1.25 “Due Diligence Period” means the date commencing on the Escrow Opening Date and ending at 5:00 p.m. on the ninetieth (90th) day following the Escrow Opening Date.

1.1.26 “Earnest Money Deposit” means Twenty Thousand One Hundred Forty Two Dollars ($20,142.00) payable in cash or other immediately available funds.

1.1.27 “Effective Date” has the meaning ascribed to the term in Section 1.3.

1.1.28 “Entitlement(s)” shall have the meaning ascribed to the term in Section

2.6.2. 1.1.29 “Entitlement Application Date” means the date when Developer submits its application(s) to the City to obtain all necessary Entitlements to commence construction of the Project, which date shall be no later than sixty (60) days from the Effective Date.

1.1.30 “Entitlement Obtainment Date” means the date when Developer obtains all necessary Entitlements to commence construction of the Project, which date shall be no later than nine (9) months from the Entitlement Application Date.

1.1.31 “Environmental Claims” has the meaning ascribed to the term in Section 5.9.

1.1.32 “Environmental Laws” means all federal, state, local, or municipal laws, rules, orders, regulations, statutes, ordinances, codes, decrees, or requirements of any government authority regulating, relating to, or imposing liability of standards of conduct concerning any hazardous substance (as later defined), or pertaining to occupational health or industrial hygiene (and only to the extent that the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, occupational or environmental conditions on, under, or about the Property, as now or may at any later time be in effect, including without limitation, the Comprehensive Environmental Response, Compensation and Liability Act of 1980 (“CERCLA”) [42 USC Section 9601 et seq.]; the Resource Conservation and Recovery Act of 1976 (“RCRA”) [42 USC Section 6901 et seq.]; the Clean Water Act, also known as the Federal Water Pollution Control Act (“FWPCA”) [33 USC Section 1251 et seq.]; the Toxic Substances Control Act (“TSCA”) [15 USC Section 2601 et seq.]; the Hazardous Materials Transportation Act (“HMTA”) [49 USC Section 1801 et seq.]; the 60 46700.12001\35016261.6
DRAFT BBK 8-11-22
5 Insecticide, Fungicide, Rodenticide Act [7 USC Section 6901 et seq.] the Clean Air Act [42 USC Section 7401 et seq.]; the Safe Drinking Water Act [42 USC Section 300f et seq.]; the Solid Waste Disposal Act [42 USC Section 6901 et seq.]; the Surface Mining Control and Reclamation Act [30 USC Section 101 et seq.] the Emergency Planning and Community Right to Know Act [42 USC Section 11001 et seq.]; the Occupational Safety and Health Act [29 USC Section 655 and 657]; the California Underground Storage of Hazardous Substances Act [California Health & Safety Code Section 25288 et seq.]; the California Hazardous Substances Account Act [California Health & Safety Code Section 25300 et seq.]; the California Safe Drinking Water and Toxic Enforcement Act [California Health & Safety Code Section 24249.5 et seq.] the Porter-Cologne Water Quality Act [California Water Code Section 13000 et seq.] together with any amendments of or regulations promulgated under the statutes cited above and any other federal, state, or local law, statute, ordinance, or regulation now in effect or later enacted that pertains to occupational health or industrial hygiene, and only to the extent the occupational health or industrial hygiene laws, ordinances, or regulations relate to hazardous substances on, under, or about the Property, or the regulation or protection of the environment, including ambient air, soil, soil vapor, groundwater, surface water, or land use.

1.1.33 “Environmental Matters” has the meaning ascribed to the term in Section 5.9.

1.1.34 “Escrow” has the meaning ascribed to the term in Section 2.1.

1.1.35 “Escrow Closing Date” has the meaning ascribed to the term in Section

3.6. 1.1.36 “Escrow Holder” means Chicago Title Insurance Company.

1.1.37 “Escrow Opening Date” has the meaning ascribed to the term in Section 3.1.

1.1.38 “Event of Default” has the meaning ascribed to the term in Section 7.1.

1.1.39 “Financing Commitment” means (a) one or more commitment(s) from one or more Construction Lender(s) agreeing to provide sufficient funds which, when combined with the Developer’s equity contribution and the financial assistance to be provided by the City pursuant to this Agreement, is sufficient, as determined by the City in its reasonable discretion, to fully fund the Project’s Construction Costs, or (b) a letter from one or more Construction Lender(s) indicating approval of a loan to the Developer for the development of the Property.

1.1.40 “FIRPTA Affidavit” means an affidavit complying with Section 1445 of the United States Internal Revenue Code.

1.1.41 “Grant Deed” means a deed in the form of Exhibit E to this Agreement, conveying all of the City’s interest in the Property to the Developer.

1.1.42 “Governmental Agency” means any and all courts, boards, agencies, commissions, offices, or authorities of any nature whatsoever for any governmental unit (federal, state, county, district, municipal, city, or otherwise) whether now or later in existence. 61 46700.12001\35016261.6
DRAFT BBK 8-11-22
6 1.1.43 “Governmental Requirements” means all codes, statutes, ordinances, laws, permits, orders, and any rules and regulations promulgated thereunder of any Governmental Agency.

1.1.44 “Hazardous Substances” means, without implied limitation, substances defined as “hazardous substances,” “hazardous material,” “toxic substance,” “solid waste,” or “pollutant or contaminate” in the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. Sections 9601, et seq.; the Toxic Substances Control Act (“TSCA”) [15 U.S.C. Sections 2601, et seq.]; the Hazardous Materials Transportation Act, 49 U.S.C. Sections 1801, et seq.; the Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et seq.; those substances listed in the United States Department of Transportation (DOT) Table [49 CFR 172.101], or by the EPA, or any successor authority, as hazardous substances [40 CFR Part 302]; and those substances defined as “hazardous waste” in Section 25117 of the California Health and Safety Code or, as “hazardous substances” in Section 25316 of the California Health and Safety Code; other substances, materials, and wastes that are, or become, regulated or classified as hazardous or toxic under federal, state, or local laws or regulations and in the regulations adopted pursuant to said laws, and shall also include manure, asbestos, polychlorinated biphenyl, flammable explosives, radioactive material, petroleum products, and substances designated as a hazardous substance pursuant to 33 USC Section 1321 or listed pursuant to 33 USC Section 1317.

1.1.45 “Indemnified Parties” has the meaning ascribed to the term in Section

5.9. 1.1.46 “Lender” means any state or federally chartered bank, savings and loan, capital investment group, or other third party financial institution which routinely makes Loans to developments and developers such as the Project and the Developer in the normal course of business and which has been approved by the City pursuant to Section 6.3.

1.1.47 “Lien” means any mortgage, deed of trust, or other security instrument encumbering Developer’s fee interest in the Property and/or Project, or any part thereof, or any pledge or other agreement given as security for the repayment of a Loan and by which a Lender would be able to acquire any interest in the Developer upon the Developer’s breach of any obligation under the Lender’s Loan Documents.

1.1.48 “Loan” means any loan or third party equity/capital contribution (e.g. mezzanine financing) for the Project other than that provided by the City.

1.1.49 “Loan Documents” means the various documents and instruments made by and between the Developer and a Lender that evidence a Loan and the security for repayment of such Loan.

1.1.50 “Maintenance Deficiency” has the meaning ascribed to the term in Section 5.4.1.

1.1.51 “Normal Business Hours” means the normal business hours of the City. As of the Effective Date, the City’s normal business hours are Monday through Thursday, 62 46700.12001\35016261.6
DRAFT BBK 8-11-22
7 between the hours of 7:30 a.m. and 5:30 p.m. Pacific Time; and Friday between the hours of 7:30 a.m. and 4:30 p.m. Pacific Time.

1.1.52 “Notice of Agreement” means the notice in the form of Exhibit F to this Agreement to be recorded against the Property at the Close of Escrow to provide constructive record notice of the existence and application of this Agreement to the Property.

1.1.53 “Official Records” means the Official Records of San Bernardino County.

1.1.54 “Party” means, individually, the City or the Developer, as applicable.

1.1.55 “Parties” means, collectively, the City and the Developer.

1.1.56 “PCO Statement” means a preliminary change of ownership statement provided for in California Revenue and Taxation Code Section 480.3.

1.1.57 “Permit Issuance Date” means the date when the City issues the first building permit to Developer, which date shall be no later than five (5) months from the Construction Drawings Submittal Date.

1.1.58 “Permitted Exceptions” means (i) any and all items shown in Schedule B of the Preliminary Report as exceptions to coverage under the proposed Title Policy that the Developer accepts, pursuant to Section 2.3; (ii) any exceptions from coverage under the proposed Title Policy resulting from the Developer’s activities on the Property; (iii) non-delinquent property taxes and assessments; (iv) this Agreement; or (v) the Grant Deed.

1.1.59 “Permitted Transfer” means and refers to any of the following types of Transfers by the Developer, where the person or entity to which such Transfer is made expressly assumes the obligations of the Developer under this Agreement in a written instrument satisfactory to the City.

1.1.59.1 Any Transfer of stock or equity of the Developer that does not change management or operational Control of the Property or the Project;

1.1.59.2 Any Transfer of any interest in the Developer or the Property or Project or any portion thereof irrespective of the percentage of ownership (i) to any other owner of any interest in the Developer; or (ii) to any Affiliate, or (iii) to any other person or entity in which any holder of an interest (including any beneficial interest) in the Developer is a manager, officer or partner or in which any of the aforementioned is a shareholder, member or partner (including a beneficial owner); and

1.1.59.3 Any Lien given to Lender in connection with a Loan approved by the City pursuant to Section 6.3.

1.1.60 “Plans and Specifications” has the meaning ascribed to the term in Section 2.6.1.
63 46700.12001\35016261.6
DRAFT BBK 8-11-22
8 1.1.61 “Preliminary Report” means a preliminary report issued by the Title Company in contemplation of the issuance of the Title Policy, accompanied by legible copies of all documents listed in Schedule B of the report as exceptions to coverage under the proposed Title Policy. The Parties acknowledge that they may prepare one (1) or more Preliminary Reports for each parcel, or group of parcels, comprising the Property. In such case, all reports, notices, and objection letters which pertain to the Preliminary Report for the entirety of the Property shall apply separately to each Preliminary Report associated with a parcel or a group of parcels.

1.1.62 “Project” means the construction and development of the Property as a multi-story, mixed-use residential and retail commercial development, including all required or associated on-site and off-site improvements, all hardscape and all landscaping, all as specifically described in the Scope of Development, and all to be developed in accordance with the Plans and Specifications to be approved by the City and any conditions imposed by the City in its approval of the Plans and Specifications.

1.1.63 “Project Completion Date” means that date set forth therefor by which a Certificate of Completion shall be issued for the Project, as more particularly provided in the Schedule of Performance. The Project Completion Date shall be no later than the date which is twelve (12) months after the Construction Commencement Date.

1.1.64 “Property” means that real property, and all current and future improvements thereon (including, without implied limitation, the Project), legally described in Exhibit A and depicted in Exhibit B.

1.1.65 “Property Transfer” means and refers to any “change in ownership,” as defined in Revenue and Taxation Code Sections 60, et seq., of all or any portion of the Property.

1.1.66 “Purchase Price” means the amount of Six Hundred Seventy Five Thousand Dollars ($675,000.00).

1.1.67 “Record”, “recorded”, “recording” or “recordation” each mean and refer to recordation of the referenced document in the official records of the Recorder of the County of San Bernardino, California.

1.1.68 “Schedule of Performance” means the schedule for the performance of certain actions by the Parties pursuant to this Agreement, attached to this Agreement as Exhibit D.

1.1.69 “Scope of Development” means the detailed description of the Project attached to this Agreement as Exhibit C.

1.1.70 “Title Approval Date” means the date when Developer submits the Developer’s Title Notice, which date shall be no later than sixty (60) days from the Escrow Opening Date.

1.1.71 “Title Company” means Chicago Title Company, which shall be the same party named in 1.1.33.
64 46700.12001\35016261.6
DRAFT BBK 8-11-22
9 1.1.72 “Title Policy” means a standard CLTA owners’ policy of title insurance issued by the Title Company, with coverage in the full amount of the Purchase Price and insuring fee title to the Property, subject only to the Permitted Exceptions. However, at Developer’s option, Developer may acquire an ALTA extended coverage policy. City shall pay for the standard CLTA policy. Developer shall pay for any additional or ALTA extended coverage policy if requested by Developer.

1.1.73 “Transfer” means any of the following:

1.1.73.1 Any total or partial sale, assignment, conveyance, trust, power, or transfer in any other mode or form, by the Developer of more than a 49% interest in the Developer’s interest in this Agreement, the Property, or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in the Developer’s interest in this Agreement, the Property or the Project; or

1.1.73.2 Any total or partial sale, assignment, conveyance, or transfer in any other mode or form, of or with respect to any interest in the Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest in any interest in the Developer; or

1.1.73.3 Any merger, consolidation, sale, or lease of all or substantially all of the assets of the Developer or a series of such sales, assignments and the like that, in the aggregate, result in a disposition of more than a 49% interest of all or substantially all of the assets of the Developer; or

1.1.73.4 Any Property Transfer; or
The recordation of any deed of trust, mortgage, Lien or similar encumbrance against all or any portion of the Property or the Project.

1.1.74 “Unavoidable Delay” means any delay that is caused by the exclusively by the other party or that is beyond the control of the City or the Developer, including delay caused by strikes, acts of God, weather, inability to obtain labor or materials, inability to obtain governmental permits or approvals, governmental restrictions, civil commotion, fire or similar causes, but excluding circumstances subject to Section 8.7.2.

1.2 Representations and Warranties.

1.2.1 City Representations and Warranties. The representations and warranties of City contained in this Section 1.2.1 shall be based upon the actual knowledge of the City Manager as of the Effective Date, without any duty of investigation or inquiry. All representations and warranties contained in this Section 1.2.1 are true and correct as of the Effective Date. City’s liability for misrepresentation or breach of warranty, representation or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. City hereby makes the following representations, covenants and 65 46700.12001\35016261.6
DRAFT BBK 8-11-22
10 warranties and acknowledges that the execution of this Agreement by Developer has been made in material reliance by Developer on such covenants, representations and warranties:

1.2.1.1 City is a California municipal corporation, duly formed and operating under the laws of the State of California. City has the legal power, right and authority to enter into this Agreement and to execute the instruments and documents referenced herein, and to consummate the transactions contemplated hereby.

1.2.1.2 The persons executing any instruments for or on behalf of City have been authorized to act on behalf of City and this Agreement is valid and enforceable against City in accordance with its terms and each instrument to be executed by City pursuant hereto or in connection therewith will, when executed, shall be valid and enforceable against City in accordance with its terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of and compliance with this Agreement by City.

1.2.1.3 City has taken all requisite action and obtained all requisite consents for agreements or matters to which City is a party in connection with entering into this Agreement and the instruments and documents referenced herein and in connection with the consummation of the transactions contemplated hereby. Execution hereon by City requires no further votes, resolutions or approvals of this Agreement.

1.2.1.4 If the City becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the City under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the City’s knowledge and/or belief as of a certain date, the City will give immediate written notice of such changed fact or circumstance to the Developer.

1.2.2 Developer Representations and Warranties. The representations and warranties of Developer contained in this Section 1.2.2 shall be based upon the actual knowledge of George Voigt as of the Effective Date, without any duty of investigation or inquiry. All representations and warranties contained in this Section 1.2.2 are true and correct as of the Effective Date. Developer’s liability for misrepresentation or breach of warranty, representation, or covenant, wherever contained in this Agreement, shall survive the execution and delivery of this Agreement and the Closing. Developer hereby makes the following representations, covenants and warranties and acknowledges that the execution of this Agreement by City has been made in material reliance by City on such covenants, representations, and warranties:

1.2.2.1 Developer is a California limited liability company, lawfully entitled to do business in the State of California and the City. Developer has the legal right, power and authority to enter into this Agreement and the instruments and documents referenced herein and to consummate the transactions contemplated hereby. The persons executing this Agreement and the instruments referenced herein on behalf of Developer hereby represent and warrant that such persons have the power, right and authority to bind Developer.

1.2.2.2 Developer has taken all requisite action and obtained all requisite consents in connection with entering into this Agreement and the instruments and documents 66 46700.12001\35016261.6
DRAFT BBK 8-11-22
11 referenced herein and the consummation of the transactions contemplated hereby, and no consent of any other party is required for Developer’s authorization to enter into Agreement.

1.2.2.3 Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby shall result in a breach of or constitute a default under any other agreement, document, instrument or other obligation to which Developer is a party or by which Developer may be bound, or under law, statute, ordinance, rule, governmental regulation or any writ, injunction, order or decree of any court or governmental body applicable to Developer or to the Property.

1.2.2.4 This Agreement is, and all agreements, instruments and documents to be executed by Developer pursuant to this Agreement shall be, duly executed by and shall be valid and legally binding upon Developer and enforceable in accordance with their respective terms. No approval, consent, order or authorization of, or designation or declaration of any other person, is required in connection with the valid execution and delivery of in compliance with this Agreement by Developer.

1.2.2.5 If the Developer becomes aware of any act or circumstance that would change or render incorrect, in whole or in part, any representation or warranty made by the Developer under this Agreement, whether as of the date given or any time thereafter, whether or not such representation or warranty was based upon the Developer’s knowledge and/or belief as of a certain date, the Developer will give immediate written notice of such changed fact or circumstance to the City.

1.3 Effective Date. This Agreement is dated August 16, 2022 for reference purposes only. This Agreement shall not become effective until the date on which all of the following are true (“Effective Date”): (i) this Agreement is approved and executed by the appropriate authorities of Developer and delivered to City; (ii) Developer has delivered to City a certified copy of the official action taken by all of the members of the Developer approving this Agreement, in the form attached to this Agreement as Exhibit G; (iii) following all legally required notices and hearings, this Agreement is approved by the City Council; and (iv) this Agreement is executed by the authorized representatives of City.

1.4 Exhibit List. The following is a list of the Exhibits attached to this Agreement.

Each of the Exhibits is incorporated by this reference into the text of this Agreement.

Exhibit A Legal Description of Property
Exhibit B Property Site Plan
Exhibit C Scope of Development
Exhibit D Schedule of Performance
Exhibit E Form of Grant Deed
Exhibit F Form of Notice of Agreement
Exhibit G Form of Official Action of Developer
Exhibit H Form of Certificate of Completion
67 46700.12001\35016261.6
DRAFT BBK 8-11-22
12 ARTICLE II

PROPERTY DISPOSITION

2.1 Purchase and Sale. Developer agrees to purchase, and City agrees to sell, the Property for the Purchase Price. For the purposes of exchanging funds and documents to complete the sale from the City to the Developer and the purchase by the Developer from the City of the Property pursuant to the terms of this Agreement, the City and the Developer agree to open an escrow (“Escrow”) with the Escrow Holder. ARTICLE III of this Agreement constitutes the joint escrow instructions of the Parties to the Escrow Holder for completion of the Escrow for the sale of the Property, as contemplated by this Agreement. The Developer and the City shall execute such further escrow instructions, consistent with the provisions of this Agreement, as may be reasonably requested by the Escrow Holder. In the event of any conflict between the provisions of this Agreement and any other escrow instructions requested by the Escrow Holder, the provisions of this Agreement shall control.

2.2 Earnest Money Deposit. Concurrent with its opening of the Escrow, the Developer shall deposit into Escrow the Earnest Money Deposit. The Escrow Holder shall deposit the Earnest Money Deposit into an interest bearing account. All interest earned on such funds shall be added to the original principal amount of the Earnest Money Deposit and be considered part of the same.

The Earnest Money Deposit shall be nonrefundable upon the conclusion of the Due Diligence Period. Should Escrow fail to close after the conclusion of the Due Diligence Period, the Earnest Money Deposit shall be forfeited by Developer and shall be paid to the City upon the cancellation of Escrow in accordance with Section 3.10. The Earnest Money Deposit shall be returned to Developer if this Agreement is terminated due to the exercise by the Developer of any contingencies, or disapprovals allowed herein prior to the end of the Due Diligence Period, or in the case of the City’s failure of its obligations herein.

2.3 Title Approval. As soon as practicable following the opening of the Escrow, the City shall obtain from Title Company the Preliminary Report and deliver a copy of the Preliminary Report to the Developer. Within sixty (60) days following the Escrow Opening Date (defined at Section 3.1), the Developer shall deliver the Developer’s Title Notice to the City. If the Developer fails to deliver the Developer’s Title Notice to the City by the Title Approval Date, the Developer will be deemed to disapprove the status of title to the Property and refuse to accept title to the Property, in which case the City shall have the right, subject to Section 2.3.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder. Within twenty (20) days following receipt by the City of Developer’s Title Notice, if any, the City shall serve City’s Title Notice Response. If Developer’s Title Notice does not object to any matter in the Preliminary Report, the City shall not be required to serve City’s Title Notice Response. If the City does not serve City’s Title Notice Response, if necessary, within twenty (20) days following its receipt of Developer’s Title Notice, the City shall be deemed to elect not to remove any matter objected to in Developer’s Title Notice, if any, from the Preliminary Report. If the City elects in City’s Title Notice Response to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, the City shall cause the removal of each such objectionable matter from the Preliminary Report within sixty (60) days following receipt by the Developer of City’s Title Notice Response or such other period of time that may be agreed to 68 46700.12001\35016261.6
DRAFT BBK 8-11-22
13 in writing by both the City and the Developer, and any such delay will also delay the end of the Due Diligence Period. If the City is unwilling or unable to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, then, within ten (10) days following the Developer’s receipt of City’s Title Notice Response stating that the City is unwilling to remove or cause the removal of any matter objected to in Developer’s Title Notice, the Developer may either (1) refuse to accept title to and conveyance of the Property, in which case the Parties shall have the right, subject to Section 2.3.2, to cancel the Escrow and terminate this Agreement without liability to either Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Developer’s Title Notice by delivering Developer’s Title Notice Waiver to the City. Failure by the Developer to deliver Developer’s Title Notice Waiver, where City’s Title Notice Response or the City’s failure to serve City’s Title Notice Response indicates the City’s election not to cause the removal of any matter objected to in Developer’s Title Notice from the Preliminary Report, for the City to deliver City’s Title Notice Response under this Agreement, will be deemed the Developer’s continued refusal to accept the title to and conveyance of the Property, in which case the City shall have the right, subject to Section 2.3.2, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder. If the City’s Title Notice Response indicates that the City will cause the removal of any matter of Title, but upon the expiration of the above sixty (60) day time period during which the City elected to remove such objectionable matters from the Preliminary Report and was unable to do so, City must notify Developer that it was unable to do so. Within ten (10) days after this notice, Developer may either (1) refuse to accept the title to and conveyance of the Property, in which case the Parties shall have the right, subject to Section

2.3.2, to cancel the Escrow and terminate this Agreement without liability to either Party or any other person, by delivery of a written notice of termination to the Escrow Holder, or (2) waive its objection to any items set forth in Developer’s Title Notice by delivering Developer’s Title Notice Waiver to the City.

2.3.1 If at any time prior to the Close of Escrow the Title Company issues an updated Preliminary Report containing any previously undisclosed matter affecting title to the Property, or the City becomes aware of any previously undisclosed matter affecting title to the Property, following the delivery of the Developer’s Title Notice, the City shall provide written notice to the Developer of such matter, together with any updated Preliminary Report related to such matter. The City and the Developer shall have such rights and obligations with respect to such previously undisclosed title matters as they did with respect to any title matters set forth in the original Preliminary Report as set forth in this Section 2.3.

2.3.2 Before exercising any right a Party may have under this Section 2.3 to cancel the Escrow and terminate this Agreement, such Party shall notify the non-terminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable title matter may be eliminated or mitigated. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable title matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action 69 46700.12001\35016261.6
DRAFT BBK 8-11-22
14 whatsoever with respect to such title matter unless such agreement is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving such title matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.10. The phrase “without liability to any party” includes return of Developer’s Earnest Money Deposit, subject to Sections 2.3 and 3.10, and so long as the notice referred to in the first sentence of this paragraph is delivered prior to the end of the Due Diligence Period, the additional time periods in this paragraph shall not act to cause Developer’s Earnest Money Deposit to be forfeit.

2.4 Developer Investigations.

2.4.1 The Developer shall have until the expiration of the Due Diligence Period to complete all of its Due Diligence Investigations with respect to the entirety of the Property. The Developer shall complete all of its Due Diligence Investigations within the Due Diligence Period and shall conduct all of its Due Diligence Investigations at its sole cost and expense. The Developer shall rely solely and exclusively upon the results of its Due Diligence Investigations of the Property, including, without limitation, investigations regarding geotechnical soil conditions, compliance with applicable laws pertaining to the use of the Property by the Developer and any other matters relevant to the condition or suitability of the Property for the Project, as the Developer may deem necessary or appropriate. City makes no representation or warranty to the Developer relating to the condition of the Property or suitability of the Property for any intended use or development by the Developer. The Developer shall deliver a Due Diligence Investigation Conclusion Notice to the City and the Escrow Holder prior to the end of the Due Diligence Period. If the Developer does not unconditionally accept the condition of the Property by delivery of its Due Diligence Investigation Conclusion Notice indicating such acceptance prior to the end of the Due Diligence Period, the Developer shall be deemed to have rejected the condition of the Property and refused to accept conveyance of title to the Property. If the condition of the Property is rejected or deemed rejected by the Developer, then the City shall have the right, subject to Section 2.4.3, to cancel the Escrow and terminate this Agreement, in the City’s sole discretion, without liability to the Developer or any other person, by delivery of a written notice of termination to the Developer and Escrow Holder. The Developer shall accept all conditions of the Property, without any liability of the City whatsoever, upon the Developer’s acceptance of the condition of the Property indicated in its Due Diligence Investigation Conclusion Notice. The Developer’s delivery of its Due Diligence Investigation Conclusion Notice indicating the Developer’s unconditional acceptance of the condition of the Property shall evidence the acceptance of the condition of the Property by the Developer in its existing “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition, as of the last day of the Due Diligence Period.

In its sole discretion, the Developer may accept the Property in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS” condition at any time before the end of the Due Diligence Period.

The Developer shall conduct during the Due Diligence Period such environmental assessment(s) of the Property as the Developer deems appropriate. If such assessment(s) do not reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable Governmental Requirements, then the City shall promptly and at its sole cost and expense install security fencing around the Property. If such assessment(s) do reveal the presence of any Hazardous Substances on the Property in levels that exceed applicable Governmental 70 46700.12001\35016261.6
DRAFT BBK 8-11-22
15 Requirements, then the City and the Developer shall negotiate in good faith in an effort to reach agreement as to the allocation of responsibility and cost of remediation thereof.

2.4.2 Any Due Diligence Investigations of the Property by the Developer shall not unreasonably disrupt any then-existing use or occupancy of the Property or the operations of the City. The Developer shall be liable for any damage or injury to any person or property arising from the acts of the Developer, its employees, agents or representatives during the course of any Due Diligence Investigations on the Property and the Developer shall indemnify, defend (with counsel reasonably acceptable to the City), and hold harmless the City and its elected officials, officers, directors, attorneys, contractors, agents and employees from any and all actual or alleged liens, claims, demands or liability arising from any Due Diligence Investigations by the Developer on the Property. Prior to commencing any Due Diligence Investigations on the Property, the Developer shall deliver copies of policies or certificates of insurance to the City evidencing compliance by the Developer with the insurance requirements of Section 5.10.

2.4.3 Before exercising any right a Party may have under this Section 2.4 to cancel the Escrow and terminate this Agreement, including due to the failure of Developer to timely deliver the Due Diligence Investigation Conclusion Notice, such Party shall notify the nonterminating Parties in writing of its election to terminate and shall, upon a non-terminating Party’s request, which must be delivered, if at all, within three (3) days following its receipt of the terminating Party’s notice of election to terminate, meet and confer with the non-terminating Parties for a period of thirty (30) days. During such time, the Parties shall meet as often as reasonably requested by any Party to negotiate, in good faith, methods and means by which the objectionable Due Diligence matter may be eliminated or mitigated, and this time period will extend the Due Diligence Period. Nothing herein shall constitute an agreement, representation, or warranty by any Party that an acceptable resolution of the objectionable Due Diligence matter will be achieved, nor shall any Party be obligated to expend any funds or undertake any other action whatsoever with respect to such Due Diligence matter unless such obligation is reduced to a writing which is approved by all Parties, in their sole and absolute discretion. If, at the end of such thirty (30) day period, the Parties have not been able to agree on a mutually acceptable method of resolving the objectionable Due Diligence matter, or if any proposed agreement is disapproved by the City Council, the Escrow shall be cancelled, this Agreement shall be terminated without liability to any Party, and the Parties shall proceed pursuant to Section 3.10. City, and staff and agents will reasonably cooperate with Developer’s efforts to investigate the property at Developer’s cost, including but not limited to: authorizing any City consultants with prior reports or findings to issue certificates of reliance on the prior reports to Developer, at Developer’s costs and without warranty from or liability to City; authorizing such consultants and contractors, subject to the City’s prior review and approval, to open up records to Developer, and/or provide copies (digital versions where available) of reports and findings to Developer or its consultants.

Any such information provided to Developer shall be without warranty from or liability to City.

2.5 City Obligations.

2.5.1 After the Closing and during the pre-development phase of the Project, City shall cooperate in providing Developer any information reasonably requested by Developer pertaining to the Site, including all available “as built” drawings for existing on-site structures, 71 46700.12001\35016261.6
DRAFT BBK 8-11-22
16 underground utilities and site map (to the extent not already provided during the Due Diligence Period).

2.5.2 City and Developer shall work together to identify those existing utilities which can be relocated and those which can be vacated on site.

2.5.3 City agrees to indemnify, defend (with counsel chosen by City and approved by Developer, which such approval shall not be unreasonably withheld, conditioned or delayed), and hold harmless Developer, Ontario Place D Block, LLC, a California limited liability company and each of their respective officers and employees (collectively, the “Developer 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 the Project from the Effective Date and approval of this Agreement to the Close of Escrow 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 54239.4 in connection with the City’s disposition of the Property to Developer. Governmental agency in the preceding sentence includes a third party allowed to make a claim under those codes.

2.6 Developer to Obtain all Project Entitlements.

2.6.1 By the Construction Drawings Submittal Date, Developer shall submit to City staff and the City Council, for review, the following (collectively, the “Plans and Specifications”):

2.6.1.1 A proposed complete conceptual development plan for the Project on the Property that describes and depicts: (1) the location and placement of proposed buildings and (2) the architecture and elevations of the proposed buildings;

2.6.1.2 Proposed zoning change or changes to the City’s General Plan, if any, necessary to accommodate the Project on the Property;

2.6.1.3 A list of anticipated lease rates and resale land prices for the Property, as developed with the Project;

2.6.1.4 A proposed time schedule and cost estimates for the development of the Project on the Property;

2.6.1.5 A proposed financing plan identifying financing sources for all private and public improvements proposed for the Project; and

2.6.1.6 A preliminary financial analysis demonstrating the costs and benefits to the City and the City regarding all construction, maintenance and operations of all proposed public improvements, the costs of additional or increased levels of public services and any new public revenues anticipated to be generated by the Project.

2.6.2 The City’s zoning, building and land use regulations (whether contained in ordinances, the City’s municipal code, conditions of approval, policies, practice or elsewhere) 72 46700.12001\35016261.6
DRAFT BBK 8-11-22
17 (collectively, the “City Requirements”), shall be applicable to the use and development of the Project on the Property by the Developer. The Developer acknowledges that all Plans and Specifications and any changes to the Plans and Specifications shall be subject to the City Requirements. No action by the City with reference to this Agreement or any related documents shall be deemed to constitute a waiver of any City Requirements regarding the Property, the Project, the Developer, any successor-in-interest of the Developer or any successor-in-interest to the Property. The City Requirements may only be changed or waived by modification or variance approved by the City and consistent with this Agreement. No entitlement, permit or other approval from the City for development of the Project on the Property (collectively, the “Entitlements”) shall attach to any portion of the Property or otherwise become effective to allow the Developer to develop the Project on the Property until after the Developer owns fee title to that portion of the Property to which such Entitlement pertains. Under no circumstances shall the Developer commence development of any portion of the Project on the Property prior to the Developer owning fee title to the Property.

2.6.3 The approval of the Scope of Development shall not be binding on the City Council or the Planning Commission of the City regarding any approvals of the Project required by such bodies. The Developer obtains no right to develop the Project on the Property or any portion of the Property by virtue of this Agreement, except that following the Close of Escrow, the Developer shall possess the same rights as any other owner of property that desires to develop its property in a manner consistent with the City’s General Plan. If any revisions of the Scope of Development are required by a Governmental Agency (other than the City) having jurisdiction over the Property or the Project, the Developer shall promptly make any such revisions that are generally consistent with the Scope of Development.

2.6.4 Notwithstanding any provision to the contrary in this Agreement, following the Close of Escrow, the Developer agrees to accept and comply fully with any and all conditions of approval applicable to all approvals, permits and other governmental actions regarding the development or operation of the Project on the Property. Developer will seek approvals consistent with the Plans and Specifications, but in the event such conditions of approval require an adjustment or change to the number and size of units, or the layout, arrangement of any structures now on the Plans and Specifications, or as indicated in the Scope of Development, Developer shall notify the City.

2.6.5 Developer to Pay All Costs and Expenses. The Parties agree that the City shall not provide any financial assistance to the Developer in connection with the Project except as may be expressly set forth in this Agreement. The Developer shall be solely responsible for paying for the costs of all design work, construction, labor, materials, fees and permit expenses associated with the Project. The Developer shall pay any and all fees pertaining to the review and approval of the Project by the City, any other Governmental Agency and utility service providers, including the costs of preparation of all required construction, planning and other documents reasonably required by a Governmental Agency pertinent to the development or operation of the Project on the Property, including, but not limited to, specifications, drawings, plans, maps, permit applications, land use applications, zoning applications, environmental review and disclosure documents and design review documents. The Developer shall pay for any and all costs, including, but not limited to, the costs of design, construction, relocation and securing of permits for sewer or utility improvements and connections, that may be required in development of the Project, 73 46700.12001\35016261.6
DRAFT BBK 8-11-22
18 whether located on or off of the Property. Except as otherwise specified herein, Developer is not responsible for City’s costs in reaching this Agreement, nor for attorneys’ fees, internal staff costs or hours expended by City staff, or other costs incurred by City during escrow, and any City costs not specifically made the Developer’s responsibility are excluded. By no later than the Entitlement Application Date, the Developer shall apply to obtain any and all necessary Entitlements, and by no later than the Entitlement Obtainment Date obtain any and all necessary Entitlements, prior to the commencement of applicable portions of construction, and the Developer shall take reasonable precautions to ensure the safety and stability of surrounding properties during said construction.

In accordance with this Section 2.6.5, Developer shall be responsible for the costs, or immediate reimbursement to the City upon delivery of an invoice for the costs, of the following:

2.6.5.1 all fees or expenses of engineers, architects, financial consultants, legal, planning or other consultants or contractors, retained by the Developer for any study, analysis, evaluation, report, schedule, estimate, environmental review, planning and/or design activities, drawings, specifications or other activity or matter relating to the Property or the Project or the negotiation of this Agreement that may be undertaken by the Developer;

2.6.5.2 all fees, charges and costs, make all deposits and provide all bonds or other security associated with the submission to and processing by the City of any and all applications and other documents and information to be submitted to the City by the Developer pursuant to this Agreement or otherwise associated with the Project; and

2.6.6 The Developer shall obtain all Entitlements, including but not limited to a condominium map for the Project, for use and development of the Project on the Property from each Governmental Agency, within the time period for such actions specifically set forth in the Schedule of Performance, subject to any extensions of time authorized by this Agreement upon the occurrence of an Unavoidable Delay.

2.6.7 The Developer will prior to close of escrow seek to obtain building permits issued by the City, and other governmental agencies as required, for construction of the Project to proceed. Parties hereto agree that the time for Developer to Close Escrow shall be extended until seven (7) days after such necessary building permits are issued for construction, or all needed plans for construction of the Project are fully approved by all required governmental agencies and have achieved “ready to issue permit” status. Developer may waive this condition and Close Escrow without such permits or “ready to issue” plans at its sole discretion.

ARTICLE III

ESCROW INSTRUCTIONS

3.1 Opening of Escrow. For purposes of this Agreement, the opening of Escrow shall be the first date on which a fully executed copy of this Agreement and Earnest Money Deposit are deposited with Escrow Holder (“Escrow Opening Date”). The Developer shall cause the Escrow to be opened within fourteen (14) days following the Effective Date. Escrow Holder shall promptly confirm in writing to each of the Parties the date of the Escrow Opening Date. This ARTICLE III shall constitute the joint escrow instructions of the City and the Developer to Escrow Holder for 74 46700.12001\35016261.6
DRAFT BBK 8-11-22
19 conduct of the Escrow to complete the purchase and sale of the Property between them, as contemplated in this Agreement.

3.2 Conditions to Close of Escrow. The conditions set forth below shall be satisfied or waived in writing by the respective benefited Party on or before the Escrow Closing Date or the Party benefited by any unsatisfied condition shall not be required to proceed to close Escrow.

3.2.1 Developer’s Conditions to Close of Escrow. The Developer’s obligation to purchase the Property from the City on the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, each of which can only be waived in writing by the Developer:

3.2.1.1 The Developer agrees to accept the title to and conveyance of the Property, pursuant to and subject to procedures in Sections 2.3 and 2.3;

3.2.1.2 The Developer delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Developer’s unconditional acceptance of the condition of the Property, prior to the expiration of the Due Diligence Period;

3.2.1.3 The City’s planning commission finds, pursuant to Government Code Section 65402, that the Project is consistent with the City’s General Plan;

3.2.1.4 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Developer;

3.2.1.5 The City deposits the items into the Escrow required by Section

3.4;

3.2.1.6 The representations, warranties and covenants of the City set forth in Section 1.2.1 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date;

3.2.1.7 The Developer has obtained all Entitlements, subject to conditions of approval acceptable to Developer in Developer’s sole discretion, any applicable appeal period has expired without appeal having been filed or, if an appeal is filed, such appeal has been denied, and no legal action has been instituted against Developer or the City alleging the invalidity of such Entitlements; and

3.2.1.8 The City has completed all of its material obligations required by this Agreement to be completed prior to the Close of Escrow.

3.2.1.9 The City has issued approved Building Permits, or stamped and issued plans in “Ready to Issue Permits” status.

3.2.2 City’s Conditions to Close of Escrow. The City’s obligation to sell the Property to the Developer on or before the Escrow Closing Date shall be subject to the satisfaction of the following conditions precedent, which can only be waived in writing by the City:
75 46700.12001\35016261.6
DRAFT BBK 8-11-22
20 3.2.2.1 The Developer agrees to accept the title to and conveyance of the Property, pursuant to and subject to procedures in Sections 2.3 and 2.3;

3.2.2.2 The Developer delivers its Due Diligence Investigation Conclusion Notice to both the City and Escrow Holder indicating the Developer’s unconditional acceptance of the physical condition of the Property, prior to the expiration of the Due Diligence Period;

3.2.2.3 The City’s planning commission finds, pursuant to Government Code Section 65402, that the Project is consistent with the City’s General Plan;

3.2.2.4 The City has taken the necessary actions to comply with CEQA;

3.2.2.5 The Title Company is unconditionally committed to issue the Title Policy for the Property, subject to any Permitted Exceptions, to the Developer;

3.2.2.6 The Developer submits to the City, at least five (5) business days prior to the Escrow Closing Date, evidence satisfactory to the City, in the City’s reasonable discretion, that the Developer has obtained all Entitlements, including but not limited to a condominium map if necessary, from each applicable Governmental Agency, including the City;

3.2.2.7 The Developer delivers to the City, at least thirty (30) days prior to the Escrow Closing Date, in form and substance acceptable to the City, the Financing Commitment(s) applicable to the Property;

3.2.2.8 The Developer obtains the City’s approval of the Construction Loan and Construction Lender applicable to the Property, in accordance with Section 6.3, which approval shall not be unreasonably withheld;

3.2.2.9 The Developer has completed all of its material obligations required by this Agreement to be completed prior to the Close of Escrow;

3.2.2.10 The representations, warranties and covenants of the Developer set forth in Section 1.2.2 are true and correct in all material respects on the Effective Date and on the Escrow Closing Date; and

3.2.2.11 The Developer deposits the funds and items into the Escrow required by Section 3.3 for the Escrow.

3.3 Developer’s Escrow Deposits. Following satisfaction or waiver of each of the Developer’s conditions to Close of Escrow set forth in Sections 3.2.1, as applicable, the Developer shall deposit the following funds and documents into Escrow at least two (2) business days prior to the Escrow Closing Date in a writing delivered to the Parties:

3.3.1 Earnest Money Deposit. The Earnest Money Deposit, plus any additional funds required to be deposited into Escrow by the Developer under the terms of this Agreement to close the Escrow, all in immediately available funds. 76 46700.12001\35016261.6
DRAFT BBK 8-11-22
21 3.3.2 PCO Statement. A PCO Statement executed by the authorized representative(s) of the Developer.

3.3.3 Acceptance of Grant Deed. The Certificate of Acceptance of the Deed, in the form attached to the Grant Deed, executed by the authorized representative(s) of the Developer in recordable form.

3.3.4 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the Developer in recordable form.

3.4 City’s Escrow Deposits. Following satisfaction or waiver of each of the City’s conditions to Close of Escrow set forth in Sections 3.2.2, as applicable, the City shall deposit the following documents into Escrow at least two (2) business days prior to the Escrow Closing Date:

3.4.1 Grant Deed. The Grant Deed executed by the authorized representative(s) of the City in recordable form.

3.4.2 FIRPTA Affidavit (City). The FIRPTA Affidavit completed and executed by the authorized representative(s) of the City.

3.4.3 Notice of Agreement. The Notice of Agreement executed by the authorized representative(s) of the City in recordable form.

3.5 Closing Procedure. When each of the Developer’s Escrow required deposits, as set forth in Section 3.3, and each of the City’s Escrow required deposits, as set forth in Section

3.4, are deposited into Escrow, Escrow Holder shall request confirmation in writing from both the City and the Developer that each of their respective conditions to the Close of Escrow, as set forth in Section 3.2, are satisfied or waived. Upon Escrow Holder’s receipt of written confirmation from both the City and the Developer that each of their respective conditions to the Close of Escrow are either satisfied or waived, Escrow Holder shall close the Escrow for the Property by doing all of the following:

3.5.1 Recordation of Documents. File the following with the Office of the Recorder of the County, for recordation in the order set forth in Section 3.7 (i) the Grant Deed, with the Developer’s certificate of acceptance attached, (ii) the Notice of Agreement, and (iii) if applicable, the Construction Loan Deed of Trust.

3.5.2 Distribution of Recorded Documents. Distribute each recorded document to the Party or person designated for such distribution in Section 3.7.

3.5.3 PCO Statement. File the PCO Statement with the Office of the Recorder of the County.

3.5.4 FIRPTA Affidavit. File the FIRPTA Affidavit with the United States Internal Revenue Service.

3.5.5 Title Policy. Obtain and deliver the Title Policy to the Developer, and deliver any lender title policy to the lender if applicable. 77 46700.12001\35016261.6
DRAFT BBK 8-11-22
22 3.6 Close of Escrow. Close of Escrow shall occur no later than the tenth (10th) business day following Escrow Holder’s receipt of written confirmation from both the City and the Developer of the satisfaction or waiver of all conditions precedent to the Close of Escrow for the Property (the “Escrow Closing Date”). If for any reason the Close of Escrow has not occurred by the Escrow Closing Date, then any Party not then in default of this Agreement may cancel the Escrow and terminate this Agreement, subject to the notice and cure provisions of Section 7.1 (to the extent applicable), without liability to any other Party or any other person for such termination and cancellation, by delivering written notice of termination to the other Party(ies) and Escrow Holder and, thereafter, the Parties shall proceed pursuant to Section 3.10 if the non-terminating Party is not in default or pursuant to Section 7.2 or 7.3 (as applicable) if the non-terminating Party is in default. Without limiting the right of any Party to terminate this Agreement, pursuant to the preceding sentence, if Escrow does not close on or before the Escrow Closing Date, and no Party has exercised its contractual right to cancel Escrow and terminate this Agreement before such time, then Escrow shall close as soon as reasonably possible following the first date on which Escrow Holder is in a position to close the Escrow pursuant to the terms and conditions of this Agreement.

3.7 Recordation and Distribution of Documents. As applicable, Escrow Holder shall cause the following documents to be recorded in the official records of the Recorder of the County in the following order of priority at the Close of Escrow: (i) the Grant Deed, with the Developer’s certificate of acceptance attached, (ii) the Notice of Agreement; (iii) the Construction Loan Deed of Trust, if applicable, and (iv) any other documents to be recorded through Escrow upon the joint instructions of the Parties. All recorded documents shall provide that they are to be returned to Escrow Holder after recordation. When originals of such recorded documents are returned to Escrow Holder, Escrow Holder shall deliver: (i) the original Grant Deed, with the Developer’s original certificate of acceptance attached, to the Developer and copies to the City, each showing all recording information, (ii) the original of the Notice of Agreement to the City, with copies to the Developer, each showing all recording information, (iii) the Construction Loan Deed of Trust to the Construction Lender for the Project, with copies to the Developer and the City, each showing all recording information, and (iv) the original of any other document recorded at the close of Escrow to the Party or other person designated in the joint escrow instructions of the Parties for such recordation and a copy of each such document to the other Party or Parties, each showing all recording information. If any construction lender requests that the original deed of trust be delivered elsewhere then that request will be honored by Escrow Holder.

3.8 Escrow Closing Costs, Taxes and Title Policy Premium. The City and the Developer shall each pay one-half (1/2) of the Escrow fees and such other costs as Escrow Holder may charge for the conduct of the Escrow. Escrow Holder shall notify the Developer and the City of the costs to be borne by each of them at the Close of Escrow by delivering the Escrow Holder’s estimated closing/settlement statement to both the City and the Developer at least four (4) business days prior to the Escrow Closing Date. The City shall pay the premium charged by the Title Company for the standard Title Policy for the Property, exclusive of any endorsements or other supplements to the coverage of such Title Policy that may be requested by the Developer, as well as documentary transfer taxes and any and all other charges, fees and taxes levied by a Governmental Authority relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement. The City shall pay any City and/or County and/or state transfer taxes calculated on the value of the Property if any are charged. The Developer 78 46700.12001\35016261.6
DRAFT BBK 8-11-22
23 shall pay any and all recording fees relative to the conveyance of any portion of the Property through the Escrow transaction contemplated in this Agreement.

3.9 Escrow Cancellation Charges. If the Escrow fails to close due to either the City’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the City shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close due to the Developer’s material default under this Agreement and the Escrow is cancelled and this Agreement is terminated, the Developer shall pay all ordinary and reasonable Escrow and title order cancellation charges. If the Escrow fails to close for any reason other than the material default of either the Developer or the City and the Escrow is cancelled and this Agreement is terminated, the Developer and the City shall each pay one-half (1/2) of any ordinary and reasonable Escrow and title order cancellation charges.

3.10 Escrow Cancellation. If this Agreement is terminated and the Escrow cancelled pursuant to a contractual right granted to a Party in this Agreement to terminate this Agreement and cancel the Escrow, other than due to the material default of another Party, the Parties shall do each of the following:

3.10.1 Cancellation Instructions. The Parties shall, within three (3) business days of receipt of Escrow Holder’s written request, execute any reasonable Escrow cancellation instructions requested by Escrow Holder;

3.10.2 Return of Funds and Documents. Within ten (10) days of receipt by the Parties of a settlement statement of Escrow and title order cancellation charges from Escrow Holder: (i) the Developer or Escrow Holder shall return to the City any documents previously delivered by the City to the Developer or Escrow Holder, (ii) the City or Escrow Holder shall return to the Developer all documents previously delivered by the Developer to the City or Escrow Holder; (iii) Escrow Holder shall return to the Developer any funds deposited by Developer into Escrow, including the Earnest Money Deposit (subject to Section 2.2), less the Developer’s share of customary and reasonable Escrow and title order cancellation charges, if any; and (iv) Escrow Holder shall return to the City any funds deposited by City into Escrow if it has already been deposited, less the City’s share of customary and reasonable Escrow and title order cancellation charges, if any.

3.11 Report to IRS. Following the Close of Escrow and prior to the last date on which such report is required to be filed with the Internal Revenue Service, if such report is required pursuant to Section 6045(e) of the Internal Revenue Code, Escrow Holder shall report the gross proceeds of the purchase and sale of the Property to the Internal Revenue Service on Form 1099- B, W-9 or such other form(s) as may be specified by the Internal Revenue Service pursuant to Section 6045(e). Upon the filing of such reporting form with the Internal Revenue Service, Escrow Holder shall deliver a copy of the filed form to the City and the Developer. 79 46700.12001\35016261.6
DRAFT BBK 8-11-22
24 ARTICLE IV

PROJECT DEVELOPMENT

4.1 Developer Covenant to Undertake Project. Upon Close of Escrow the Developer covenants, for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Developer shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. Upon Close of Escrow the Developer covenants and agrees for itself, its successors, and assigns, that the Property shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 4.1 shall run with the land of the Property until the earlier of the date of recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

4.2 Developer Changes to Plans and Specifications During Course of Construction. The Developer shall have the right during the course of construction of the Project to make “minor field changes,” without seeking the approval of the City, if such changes do not affect the type of use to be conducted within all or any portion of a structure. “Minor field changes” shall be defined as those changes from the approved Plans and Specifications that have no substantial effect on the Project or are made in order to expedite the work of construction in response to field conditions. The Developer shall submit all other changes, i.e. those changes which are not “minor field changes”, to the City for its review and approval no less than fifteen (15) days prior to the date that the Developer intends to implement such changes. The City shall have ten (10) days from its receipt of such proposed changes to review the same and advise the Developer in writing whether such changes are acceptable to the City in its reasonable discretion.

Any proposed changes which are not disapproved by the City within such ten (10) day period shall be deemed approved. Nothing contained in this Section 4.2 shall be deemed to constitute a waiver of or change in the City Requirements governing “minor field changes” or other changes or in any approvals by the City otherwise required for “minor field changes.” or other changes.

4.3 Construction Start and Completion of Project. The Developer shall commence construction of the Project in accordance with the Schedule of Performance and, thereafter, shall diligently proceed to complete the construction of the Project in a good and workmanlike manner in substantial conformity with the approved plans, specifications, and conditions for the Project approved by the City and the Schedule of Performance. The Developer shall obtain a Certificate of Completion on or before the Project Completion Date subject to extension for unavoidable delays. The Developer will, promptly upon completion of construction of the Project, cause the Project to be inspected by each Governmental Agency with jurisdiction over the Project, shall correct any defects and deficiencies that may be disclosed by any such inspection and shall cause to be duly issued all occupancy certificates and other licenses, permits and authorizations necessary for the operation and occupancy of the completed Project. The Developer shall do and perform all of the foregoing acts and things and cause to be issued and executed all such occupancy certificates, licenses, and authorizations for the Project on or before the date set forth therefor in 80 46700.12001\35016261.6
DRAFT BBK 8-11-22
25 the Schedule of Performance as the completion date for the Project. After commencement of the work of improvement of the Project, the Developer shall not permit the work of improvement of the Project to cease or be suspended for a time period in excess of thirty (30) consecutive calendar days, subject to Unavoidable Delays.

4.4 Compliance with Laws. All work performed in connection with the development of the Project shall comply with all Governmental Requirements.

4.5 Schedule of Performance. The Schedule of Performance establishes various dates and times for the accomplishment of various tasks assigned to the City and the Developer and the satisfaction of the conditions precedent to the close of the Escrow. The Parties agree that time is of the essence in the performance of such tasks and the satisfaction of conditions precedent, in view of the large investment of resources that all Parties recognize will be required for assembly of the Property and the undertaking of the Project. If the date or time for the performance of a task or the satisfaction of a condition, as set forth in either the text of this Agreement or in the Schedule of Performance, may not be achieved, then prior to such date or time set forth in the text of this Agreement or the Schedule of Performance, the Parties shall consider whether a modification to the text of this Agreement or to the Schedule of Performance is warranted. Any decision to approve a modification to a time or date established in either the text of this Agreement or the Schedule of Performance shall be subject to the sole discretion of each Party. Any modification of a time or date for performance of a particular task or satisfaction of a particular condition that does not result in a change of more than one hundred eighty (180) days may be approved on behalf of the City by the City Manager, in his or her reasonable discretion. A modification of a time or date for performance of a task or satisfaction of a condition (or a series of such modifications) that results in an aggregate change of more than one hundred eighty (180) days shall be subject to the approval of the City Council, in its sole and absolute discretion. If performance of a task or satisfaction of a condition in the Schedule Performance is prevented or delayed by Unavoidable Delays, the deadline for completion of such task or satisfaction of such condition shall be extended by the period of such Unavoidable Delays.

4.6 Developer Attendance at City Meetings. The Developer agrees to have one or more of its employees or consultants who are knowledgeable regarding this Agreement and the development of the Project, such that such person(s) can meaningfully respond to City questions regarding the progress of the Project, attend City Council meetings, when requested to do so on not less than ten (10) days prior written notice by City staff.

4.7 City’s Right to Inspect Project and Property. Officers, employees, agents and representatives of the City shall have the right of reasonable access to the Property, without the payment of charges or fees, during normal construction hours, during the period of construction of the Project. Such officers, employees, agents or representatives of the City shall be those persons who are designated by the City Manager. Any and all officers, employees, agents or representatives of the City who enter the Property shall identify themselves at the construction management office on the Property, upon their entrance on to the Property, and shall at all times be accompanied by a representative of the Developer, while on the Property. The Developer shall make a representative of the Developer available for this purpose at all times during normal construction hours, upon reasonable notice from the City which is to be no less than two (2) business days in advance. The City shall indemnify and hold the Developer harmless from injury, property damage or liability 81 46700.12001\35016261.6
DRAFT BBK 8-11-22
26 arising out of the exercise by the City of the right of access to the Property provided in this Section

4.7, other than injury, property damage or liability arising from the negligence or willful misconduct of the Developer or its officers, agents or employees. The City shall inspect relevant portions of the Property, prior to issuing any written statements reflecting adversely on the Developer’s compliance with the terms and conditions of this Agreement pertaining to development of the Project. If in the City’s reasonable judgment it is necessary, the City shall have the further right, from time to time, to retain a consultant or consultants to inspect the Project and verify compliance by the Developer with the provisions of this Agreement. The Developer acknowledges and agrees that any such inspections are for the sole purpose of protecting the City’s rights under this Agreement, are made solely for the City’s benefit, that the inspections may be superficial and general in nature, and are for the purposes of informing the City of the progress of the Project and the conformity of the Project with the terms and conditions of this Agreement, and that the Developer shall not be entitled to rely on any such inspection(s) as constituting an approval, satisfaction or acceptance of any materials, workmanship, conformity of the Project with this Agreement or otherwise. The Developer agrees to make its own regular inspections of the work of construction of the Project to determine that the quality of the Project and all other requirements of the work of construction of the Project are being performed in a manner satisfactory to the Developer. The Developer also agrees to immediately notify the City in writing should the Developer’s inspections show any matters that will prevent the entire Project from being completed by the Project Completion Date set forth therefore in the Schedule of Performance.

Without limiting the foregoing, the Developer shall permit the City upon reasonable notice to examine and copy all books and account records and other papers relating to the Property and the construction of the Project. The Developer will use commercially reasonable efforts to cause all contractors, subcontractors and materialmen to cooperate with the City to enable such examination.

4.8 Cost of Construction. The cost and expense of undertaking and completing the Project, including, without limitation, constructing all legally imposed on- and off-site improvements, and providing all utilities therefor, shall be borne by Developer at its sole cost, expense and liability. Developer shall be solely responsible for payment of all City land use, construction, inspection, plan check and development impact fees (collectively, “Development Fees”) imposed by the City with respect to the development of the Project. Developer shall bear all costs and expenses associated with the processing and obtaining of the Entitlements and shall bear all costs and expenses (except to the extent expressly set forth otherwise in this Agreement), associated with any and all terms, conditions, requirements, mitigation measures and other exactions imposed on, or required in connection with, the Entitlements. 82 46700.12001\35016261.6
DRAFT BBK 8-11-22
27 4.9 Private Undertaking; Prevailing Wages.

4.9.1 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.

4.9.2 The Developer agrees with the City that the Developer shall assume the responsibility and be solely responsible for determining whether or not laborers employed relative to the construction of the Project must be paid the prevailing per diem wage rate for their labor classification. The Developer, on behalf of itself, its successors, and assigns, waives and releases the City from any right of action that may be available to it pursuant to Labor Code Sections 1726 and 1781. The Developer acknowledges the protections of Civil Code Section 1542 relative to the waiver and release contained in this Section 4.9, which reads as follows:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS

THAT THE CREDITOR OR RELEASING PARTY DOES NOT

KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT

THE TIME OF EXECUTING THE RELEASE AND THAT, IF

KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY

AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR
OR RELEASED PARTY.”

BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND
VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN

CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION Error! Reference source not found..
_________________
Developer’s Initials

4.9.3 Additionally, in accordance with Section 7.7, the Developer shall indemnify, defend with counsel acceptable to the City and hold the City harmless against any claims pursuant to Labor Code Sections 1726 and 1781 arising from this Agreement or the construction or operation of the Project.

4.10 Certificate of Completion.

4.10.1 Following the substantial completion of construction of the Project, and upon written request from the Developer for issuance of a Certificate of Completion for the Project, the City shall inspect the Project to determine whether or not the Project has been substantially completed in compliance with this Agreement. If the City determines that the Project is complete and in compliance with this Agreement, the City Manager shall furnish the Developer with a Certificate of Completion for the Project. If the City determines that the Project is not in 83 46700.12001\35016261.6
DRAFT BBK 8-11-22
28 compliance with this Agreement, the City Manager shall send written notice of each nonconformity to the Developer. Upon issuance of the final certificate of occupancy for the development of the Project, based on the plans submitted by the Developer to the City, the City shall furnish the Developer with a Certificate of Completion for the Project. Until the issuance of a Certificate of Completion, the City shall retain a right of reverter in the Property pursuant to Section 7.6. The City shall not unreasonably interfere with the usual inspections by City agencies or other typical governmental inspections related to requirements for a certificate of occupancy.

4.10.2 The City shall not unreasonably withhold the issuance of a Certificate of Completion. A Certificate of Completion shall be evidence of the City’s conclusive determination of satisfactory completion of the Project to which it pertains pursuant to the terms of this Agreement. After the recordation of a Certificate of Completion for the Project, any person then owning or thereafter purchasing, leasing or otherwise acquiring any interest in the Property improved with the Project shall not (because of such ownership, purchase, lease or acquisition) incur any obligation or liability under this Agreement regarding construction or installation of the Project except that such person shall be bound by any reservations, covenants, conditions, restrictions and other interests recorded against the Property pursuant to this Agreement and the Grant Deed.

4.10.3 If the City fails or refuses to issue a Certificate of Completion following written request from the Developer within fifteen (15) calendar days of the Developer’s written request or within three (3) calendar days after the next regular meeting of the City Council, whichever date occurs later, the City shall provide the Developer with a written statement setting forth the reasons for the City’s failure or refusal to issue a Certificate of Completion. The statement shall also contain the City’s opinion of the action(s) the Developer must take to obtain a Certificate of Completion from the City. If the reason for the Developer’s failure to complete the Project is confined to the immediate unavailability of specific items or materials for construction or landscaping at a price reasonably acceptable to the Developer or other minor building “punchlist” items, the City may issue its Certificate of Completion upon the posting of a bond or irrevocable standby letter of credit by the Developer in a form reasonably acceptable to the City in an amount representing the fair value of the work on the Project remaining to be completed, as reasonably determined by the City. If the City fails to provide such written statement, within the specified time period, the Developer shall be deemed conclusively and without further action of the City to have satisfied the requirements of this Agreement with respect to the Project, as if a Certificate of Completion had been issued by the City pursuant to this Agreement.

4.10.4 A Certificate of Completion shall not constitute evidence of compliance with or satisfaction of any obligation of the Developer to any holder of a mortgage, or any insurer of a mortgage securing money loaned to finance the Project, or any parts thereof. A Certificate of Completion shall not be deemed to constitute a notice of completion under Section 3093 of the California Civil Code, nor shall it act to terminate the continuing covenants, restrictions or conditions contained in the Grant Deed or any other instruments recorded against the Property pursuant to this Agreement. A Certificate of Completion is not evidence of the compliance of the Project with any City Requirements or any building code, conditions of approval, land use, zoning or other requirements of the City or any Governmental Agency with jurisdiction over the Property, other than the City.
84 46700.12001\35016261.6
DRAFT BBK 8-11-22
29 ARTICLE V

DEVELOPER COVENANTS

5.1 Covenant to Maintain Property on Tax Rolls. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that after Close of Escrow:

5.1.1 The entire Property shall remain on the County secured real property tax rolls for twenty years from the date of issuance of a certificate of occupancy for the Project.

The Developer further covenants and agrees to provide to the City, on or before July 31 of each year, commencing in the calendar year following the calendar year in which a Certificate of Completion is recorded and in each calendar year, thereafter, for the full term of this covenant: (i) a true and correct copy of all property tax assessment notices, property tax bills and property tax assessment correspondence by and between the Developer and the County regarding the Property and all improvements thereon, with respect to the preceding fiscal year of the County, and (ii) cancelled checks issued by the Developer in payment of all property tax payments that are made to the County regarding the Property and all improvements thereon (or other reasonably acceptable evidence of such payment), with respect to the preceding County fiscal year.

5.1.3 The covenants of this Section 5.1 shall run with the land of the Property, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.2 No Conveyance to Tax Exempt Entity. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.2.1 The Developer shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property, the Project, or any portion of any of the foregoing to any entity or person, or for any use of the Property, the Project, or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, the Project, or any portion of any of the foregoing, without the prior written consent of the City, which may be withheld in the City’s sole and absolute discretion for a period of 20 years from the date of issuance of the Certificate of Completion for the Project by the City.

5.2.2 If the Property, or any portion of the Property, shall be conveyed, transferred or sold to any entity or person that is partially or wholly exempt from the payment of real or personal property taxes otherwise assessable against the Property, or any portion thereof (each, a “Tax-Exempt Entity”), without the prior written consent of the City, then, at the City’s 85 46700.12001\35016261.6
DRAFT BBK 8-11-22
30 election and in addition to all other remedies available to the City under this Agreement or at law or in equity, the Developer or its successor or assigns shall pay to the City a fee in lieu of payment of such taxes each year in an amount determined by the City to be one percent (1%) of the “full cash value” of the Property, or portion thereof, as may be subject to such exemption from payment of real or personal property taxes. The City’s determination of “full cash value” for in-lieu payment purposes under this Section 5.2.2 shall be established by the City each year, if necessary, by reference to the real or personal property tax valuation principles and practices generally applicable to a county property tax assessor under Section 1 of Article XIIIA of the California Constitution. The City’s determination of “full cash value” and that an in-lieu payment is due shall be conclusive on such matters. If the City determines that an amount is payable as an in-lieu payment under this Section 5.2.2 in any tax year, then such amount shall be paid to the City for that tax year within forty-five (45) days following transmittal by the City to the Developer or its successor or assigns of an invoice for payment of the in-lieu amount. Notwithstanding anything contrary to the foregoing, Developer shall not be responsible for any in-lieu amounts if (a) the City consents to Transfer of the Project to a non-Tax-Exempt Entity which subsequently becomes a Tax-Exempt Entity, or (b) a City-approved non-Tax-Exempt Entity to whom Developer Transfers the Property sells to a Tax-Exempt Entity or non-Tax-Exempt Entity which subsequently becomes a Tax-Exempt Entity.

5.2.3 The covenants of this Section 5.2 shall run with the land of the Property, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.3 Deleted.

5.4 Maintenance Condition of the Property. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that after Close of Escrow:

5.4.1 The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the City shall notify the Developer in writing of the Maintenance Deficiency. If the Developer fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the City shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the City to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the City for the abatement of a Maintenance Deficiency on the Property pursuant to this Section 5.4.1 shall become a lien on the Property, as applicable. If the amount of the lien is not paid within thirty (30) days after written demand for payment from the City to the Developer, the City shall have the right to enforce the lien in the manner provided in Section 5.4.3.

5.4.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is 86 46700.12001\35016261.6
DRAFT BBK 8-11-22
31 visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been color-matched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within five (5) days following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without notice to the Developer. Any sum reasonably expended by the City for the removal of graffiti from the Property pursuant to this Section 5.4.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Developer from the City, the City shall have the right to enforce its lien in the manner provided in Section 5.4.3.

5.4.1 or Section 5.4.2, including the reasonable attorneys’ fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the City” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney. Said security interest will not be enforced without providing Developer an additional notice and thirty (30) days opportunity to pay all costs, interest, and fees due and owing to the City.

5.4 shall be deemed to preclude the Developer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City.

5.5 Obligation to Refrain from Discrimination. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.5.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Developer, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property. The covenant of this Section 5.5 shall run with the land of the Property and shall be enforceable against the Developer and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement. 87 46700.12001\35016261.6
DRAFT BBK 8-11-22
32 5.5.2 The covenant of this Section 5.5 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.6 Form of Non-Discrimination and Non-Segregation Clauses. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.6.1 The Developer, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:

5.6.1.1 In deeds: “The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.”

5.6.1.2 In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.”

5.6.1.3 In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument. 88 46700.12001\35016261.6
DRAFT BBK 8-11-22
33 5.6.2 The covenant of this Section 5.6 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.

5.7 Survival of Special Development Covenants. All of the covenants set forth in ARTICLE V, inclusive, shall be a covenant running with the land of the Property and each such special development covenant shall survive the Close of Escrow, execution and recordation of the Grant Deed, and issuance and recordation of any Certificate of Completion for the time period specifically set forth in each such special development covenant, except as expressly limited otherwise above or herein. The Parties acknowledge that although the special development covenants apply to the entirety of the Property, portions of the Project and Property may, in accordance with the Permitted Transfer requirements, be sold or otherwise transferred to various successors and assigns of the Developer. Accordingly, the City agrees that with respect to enforcement of any of the special development covenants, it is understood and agreed that, in the event of a breach of any of the special development covenants, the City will seek to enforce those covenants only against the then-current owner(s) of that portion of the Property which is not in compliance with any one or more the special development covenants. No owner of any portion of the Property which is in compliance with the special development covenants shall be liable for the breach of any of the special development covenants by any other owner of any other portion of the Property; provided, however, that the foregoing shall not preclude City from seeking damages against any prior owner of any portion of the Property if, during the tenure of such owner’s ownership, such owner’s portion of the Property was not in compliance with any one or more of the special development covenants.

5.8 Developer Covenant to Defend this Agreement. The Developer acknowledges that the City is a “public entity” and/or “public agency” as defined under applicable California law. Therefore, the City must comply with certain California statutes relating to the actions of public entities and public agencies. Also, as a public body, the City’s action in approving this Agreement may be subject to proceedings to invalidate this Agreement or mandamus. The Developer assumes the risk of delays and damages that may result to the Developer from any thirdparty legal actions related to the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, even in the event that an error, omission or abuse of discretion by the City is determined to have occurred. If a third-party files a legal action regarding the City’s approval of this Agreement or the pursuit of the activities contemplated by this Agreement, either the City may terminate this Agreement on thirty (30) days written notice to the Developer of the City’s intent to terminate this Agreement, referencing this Section 5.8, without any further obligation to perform the terms of this Agreement and without any liability to the Developer resulting from such termination, unless the Developer unconditionally agrees to indemnify and defend the City, with legal counsel acceptable to the City, against such third-party legal action, as provided in the next sentence. Within thirty (30) days of receipt of the City’s notice of intent to terminate this Agreement, as provided in the preceding sentence, the Developer may offer to defend the City, with legal counsel reasonably acceptable to the City, in the third-party legal action and pay all of the court costs, attorney fees, monetary awards, sanctions, attorney fee awards, expert witness and consulting fees, and the expenses of any and all financial or performance obligations resulting from the disposition of the legal action. Any such offer from the Developer must be in writing and reasonably acceptable to the City in both form and substance.

Notwithstanding the foregoing, City may not cancel or terminate this Agreement on the basis of 89 46700.12001\35016261.6
DRAFT BBK 8-11-22
34 the assertion by a third party of a claim related to the Surplus Land Act (Government Code section 54220 et seq. through and including 54234) (the “SLA” and such a claim, an “SLA Claim”). In the event an SLA Claim demands, seeks or places restrictions on use of the Property which were not contemplated in this Agreement, then Developer may terminate this Agreement on thirty (30) days written notice, presuming said notice is served before Close of Escrow. Developer shall promptly notify the City following its receipt or knowledge of any notice of violation, claim, action, or proceeding initiated by the State of California, (or third party asserting such violations as a Qui Tam or otherwise acting as a private attorney general), and the Developer shall reasonably and in good faith cooperate in the City’s defense. Notwithstanding anything to the contrary in this Agreement and for the avoidance of doubt, nothing contained in this Section 5.8 shall be deemed or construed to be an express or implied admission that the City is liable to the Developer or any other person or entity for damages alleged from any alleged or established failure of the City to comply with any statute, including, without limitation, CEQA and the SLA. Either Party’s defense of such third party actions as described in this Section 5.8 shall constitute an Unavoidable Delay.

5.9 Environmental Indemnity of the City by the Developer. The Developer agrees that after Close of Escrow, at its sole cost and expense, to fully indemnify, protect, hold harmless, and defend (with counsel selected by the Developer and approved by the City) the City and its commissions, agents, attorneys, officers, employees, and authorized representatives (collectively, the “Indemnified Parties”), from and against any and all claims, demands, damages, losses, liabilities, obligations, penalties, fines, actions, causes of action, judgments, suits, proceedings, costs, disbursements and expenses, including, without limitation, attorney fees, disbursements and costs of attorneys, environmental consultants and other experts, and all foreseeable and unforeseeable damages or costs of any kind or of any nature whatsoever (collectively, “Environmental Claims”) that may, at any time, be imposed upon, incurred or suffered by, or claimed, asserted or awarded against, the Indemnified Parties, directly or indirectly relating to or arising from any of the following “Environmental Matters” existing or occurring during or arising from the Developer’s ownership of the Property or construction or operation of the Project:

5.9.1 The presence of Hazardous Materials on, in, under, from or affecting all or any portion of the Property or the Project.

5.9.2 The storage, holding, handling, release, threatened release, discharge, generation, leak, abatement, removal or transportation of any Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.9.3 The violation of any law, rule, regulation, judgment, order, permit, license, agreement, covenant, restriction, requirement or the like by the Developer, its agents or contractors, relating to or governing in any way Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.9.4 The failure of the Developer, its agents or contractors, to properly complete, obtain, submit and/or file any and all notices, permits, licenses, authorizations, covenants and the like in connection with the Developer’s activities on the Property or regarding the Project.
90 46700.12001\35016261.6
DRAFT BBK 8-11-22
35 5.9.5 The implementation and enforcement by the Developer, its agents or contractors of any monitoring, notification or other precautionary measures that may, at any time, become necessary to protect against the release, potential release or discharge of Hazardous Materials on, in, under, from or affecting the Property or the Project.

5.9.6 The failure of the Developer, its agents or contractors, in compliance with all applicable Environmental Laws, to lawfully remove, contain, transport or dispose of any Hazardous Materials existing, stored or generated on, in, under or from the Property or the Project.

5.9.7 Any investigation, inquiry, order, hearing, action or other proceeding by or before any governmental agency in connection with any Hazardous Materials on, in, under, from or affecting the Property or the Project or the violation of any Environmental Law relating to the Property or the Project.

5.9.8 The Developer shall pay to the Indemnified Parties all costs and expenses including, without limitation, reasonable attorneys’ fees and costs, incurred by the Indemnified Parties in connection with enforcement of the aforementioned environmental indemnity.

5.9.9 Nothing herein shall require Developer to protect, defend or indemnify the City from costs arising from actions by other governmental agencies including fines, or required contributions to remediation costs, or a pro-rated portion of the total costs, including attorneys fees and consultant expenses if it is determined that the City itself was a generator of Hazardous Materials which is determined to have placed, released, or allowed migration of such materials onto or under the Property during a period of time prior to the execution of this agreement. The term ‘generator’ as used herein means that the City was directly involved in the use, placement, release, or migration of the Hazardous Materials.

5.10 Insurance. In order to protect the City and its commissions, agents, attorneys, officers, employees and authorized representatives (collectively, “Additional Insureds”) against any and all claims and liability for death, injury, loss and damage resulting from the Developer’s actions in connection with this Agreement, the Property, and the Project, the Developer shall secure and maintain the insurance coverage, described in and required by this Section 5.10. The City shall not have any obligation under this Agreement until the Developer provides the required policies and/or certificates evidencing the insurance required by this Section 5.10 to the City and the City approves such evidence of insurance. The Developer shall pay any deductibles and selfinsured retentions under all insurance policies issued in satisfaction of the terms of this Agreement.

Developer shall retain all insurance policies as set forth in this Section 5.10 until recordation of the Certificate of Completion.

5.10.1 Workers’ Compensation Insurance Requirement. The Developer shall submit written proof that the Developer is insured against liability for workers’ compensation in accordance with the provisions of Section 3700 of the Labor Code. By executing this Agreement, the Developer makes the following certification, required by Section 1861 of the Labor Code:
91 46700.12001\35016261.6
DRAFT BBK 8-11-22
36 “I am aware of the provisions of section 3700 of the Labor Code which require every employer to be insured against liability for workers’ compensation or to undertake self-insurance in accordance with the provisions of that code, and I will comply with such provisions before commencing the performance of the work of the Agreement.”
The Developer shall require each contractor and sub-contractor performing work on the Project to provide workers’ compensation coverage for all of such contractor’s or sub-contractor’s employees, unless the contractor’s or sub-contractor’s employees are covered by workers’ compensation insurance provided by the Developer. If any class of employees engaged in work or services performed in connection with the Project is not covered by Labor Code Section 3700, the Developer shall provide and/or require each contractor or sub-contractor to provide adequate workers’ compensation insurance covering such employees. Each workers’ compensation policy procured pursuant to this Section 5.10.1 shall contain a full waiver of subrogation clause in favor of the Additional Insureds.

5.10.2 Liability and Permanent Insurance Requirements.

5.10.2.1 The Developer shall maintain or cause to be maintained in full force and effect, until the issuance of the Certificate of Completion, subject to Section 5.10.2.4, the following insurance coverage:

5.10.2.1.1 Commercial General Liability Insurance coverage, including, but not limited to, Premises-Operations, Contractual Liability Insurance (specifically covering all indemnity obligations of the Developer pursuant to this Agreement), ProductsCompleted Operations Hazards, Personal Injury (including bodily injury and death), and Property Damage for liability arising out of the construction of the Project and/or the Developer’s operations concerning the Property or the Project. The commercial general liability insurance coverage shall have minimum limits for Bodily Injury and Property Damage liability of TWO MILLION DOLLARS ($2,000,000) each occurrence and FOUR MILLION DOLLARS ($4,000,000) aggregate.

5.10.2.1.2 Developer will require the general contractor and all subcontractors to obtain Automobile Liability Insurance against claims of Personal Injury (including bodily injury and death) and Property Damage covering all owned, leased, hired and non-owned vehicles used by the Developer with minimum limits for Bodily Injury and Property Damage of ONE MILLION DOLLARS ($1,000,000). Such insurance shall be provided by a business or commercial vehicle policy.

5.10.2.1.3 If the Developer hires a consultant to provide design services, such as architectural or engineering services in connection with the Project, or any portion of the Project, the Developer shall require each such consultant to provide Professional Liability (Errors and Omissions) Insurance, for liability arising out of, or in connection with, the performance of such design services, with limits of not less than ONE MILLION DOLLARS ($1,000,000).
92 46700.12001\35016261.6
DRAFT BBK 8-11-22
37 5.10.2.1.4 Upon acceptance of the Project or any portion thereof, from each contractor, the Developer shall maintain Fire and Extended Coverage Insurance on the Project on a blanket basis or with an agreed amount clause in amounts not less than 100% of the replacement value of all portions of the Project so accepted.

5.10.2.2 During the construction of the Project, the Developer shall require that each contractor performing work on the Project maintain the following insurance coverage, as specified below, at all times during the performance of said work, or the Developer shall provide for such contractors “wrap” coverage, as specified below, at all times during the performance of said work:

5.10.2.2.1 The Developer shall maintain Builder’s Risk
Insurance to be written on an All Risk Completed Value form, in an aggregate amount equal to 100% of the completed insurable value of the Project or portion of the Project on which such contractor is performing work.

5.10.2.2.2 Each general contractor and each sub-contractor shall maintain Commercial General Liability Insurance with limits of not less than ONE MILLION DOLLARS ($1,000,000) per occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate to protect the Developer during the construction of the Project from claims involving bodily injury and/or death and damage to the property of others.

5.10.2.2.3 Each general contractor and each sub-contractor shall maintain Automobile Liability Insurance against claims of personal injury (including bodily injury and death) and property damage covering all owned, leased, hired and non-owned vehicles used in the performance of the contractor’s obligations with minimum limits for bodily injury and property damage of ONE MILLION DOLLARS ($1,000,000) each occurrence and TWO MILLION DOLLARS ($2,000,000) aggregate. Such automobile liability insurance shall be provided by a business or commercial vehicle policy.

5.10.2.3 The insurance required in Section 5.10.2.1 and Section 5.10.2.2 above shall include endorsements naming the Additional Insureds as additional insured for liability arising out of this Agreement and any operation related to this Agreement.

5.10.2.4 Any insurance coverage required under this Agreement shall not be written on a “claims made” basis, except the 5.10.2.1.3 professional liability insurance which may be on a claims made basis. The applicable certificate of insurance must clearly provide that the coverage is on an “occurrence” basis. The requirements of this Section 5.10.2.4 shall survive any expiration or termination of this Agreement and the recordation of the Grant Deed and any Certificate of Completion.

5.10.2.5 Receipt by the City of evidence of insurance that does not comply with the above requirements shall not constitute a waiver of the insurance requirements of this Agreement.

5.10.2.6 Subject to Section 5.10.2.4, all of the insurance coverage required under this Section 5.10 shall be maintained by the Developer or its contractors, as required by the terms of this Agreement, until the issuance of the Certificate of Completion and requested not to 93 46700.12001\35016261.6
DRAFT BBK 8-11-22
38 be reduced, modified, or canceled without, at least, thirty (30) days prior written notice to the City.

These insurance requirements in 5.10.2 may be met in part or in whole by an OCIP (Owner Controlled Insurance Program), Builder’s Risk or other ‘wrap’ type policy even if the above paragraphs state ‘each’ contractor or subcontractor must have separate insurance. The Developer shall immediately obtain replacement coverage for any insurance policy that is terminated, canceled, non-renewed, or whose policy limits are exhausted or upon insolvency of the insurer that issued the policy. If any notices of change, or cancellation are received Developer shall immediately notify the City, but requirements for “no changes without 30 days advance notice” may not be accepted by insurers, and minor variations in notice of cancellations clauses shall not be a breach of this Agreement. Failure of Developer to have replacement insurance meeting all requirements put in place prior to the cancellation date of any required insurance policy is a breach of this Agreement.

5.10.2.7 All insurance to be obtained and maintained by the Developer under this Section 5.10 shall be issued by a company or companies listed in the then current “Best’s Key Rating Guide” publication with a minimum of an “A:VII” rating and be authorized to conduct business in the State of California , but said carriers may be ‘non-admitted.’

5.10.2.8 The City will not accept self-insurance in satisfaction of the insurance requirements of this Section 5.10.

5.10.2.9 All insurance obtained and maintained by the Developer in satisfaction of the requirements of this Agreement shall be primary to and not contributing to any insurance maintained by the Additional Insureds.

5.10.2.10 Insurance coverage in the minimum amounts set forth in this Section 5.10 shall not be construed to relieve the Developer of any liability, whether within, outside, or in excess of such coverage, and regardless of solvency or insolvency of the insurer that issues the coverage; nor shall it preclude the Additional Insureds from taking such other actions as are available to them under any other provision of this Agreement or otherwise at law.

5.10.3 Failure by the Developer to maintain all insurance coverage required by this Section 5.10 in effect shall be an Event of Default by the Developer. The City, at its sole option, may exercise any remedy available to them in connection with such an Event of Default.

Alternatively, the City may, at its sole option, purchase any such required insurance coverage and the City shall be entitled to immediate payment from the Developer for any premiums and associated costs paid by the City for such insurance coverage. Any election by the City to purchase or not to purchase insurance otherwise required to be carried by the Developer shall not relieve the Developer of its obligation to obtain and maintain the insurance coverage required by this Agreement.

ARTICLE VI

PROJECT FINANCING

6.1 Recordation of Construction Loan Deed of Trust. The Developer covenants to the City that, if Developer has arranged any secured Construction Loan, the Developer shall cause 94 46700.12001\35016261.6
DRAFT BBK 8-11-22
39 the Construction Loan Deed of Trust(s) to be recorded against the Property within sixty (60) days following the Close of Escrow.

6.2 Unauthorized Liens. Except as provided in Section 6.3, until recordation of the Certificate of Completion, the Developer shall not record, and shall not allow to be recorded, against the Property, or any portion thereof, any Lien not expressly authorized by this Agreement.

Until recordation of the Certificate of Completion, the Developer shall remove, or shall have removed, any unauthorized Lien made or recorded against the Property or any portion of the Property, or shall assure the satisfaction thereof to the satisfaction of the City. After one hundred twenty (120) calendar days prior written notice to the Developer, the City shall have the right, but not the obligation, to satisfy any unauthorized Lien made or recorded prior to recordation of the Certificate of Completion and receive reimbursement from the Developer for any amounts paid or incurred in satisfying any such Lien, upon demand. Nothing in this Section 6.2, though, shall require the Developer to pay or make provisions for the payment of any tax, assessment, lien, or charge that the Developer is in the process of contesting the validity or amount thereof, in good faith, and so long as such contest shall not subject the Property, or any portion thereof, to forfeiture or sale.

6.3 Rights of Lenders and City Regarding Permitted Loans and Liens.

6.3.1 The City shall have the right of reasonable review and approval of any Lender from which the Developer proposes to obtain any Loan, whether or not such Loan is secured by a Lien against the Property or any portion thereof. The City shall not unreasonably withhold, condition or delay its approval of any proposed Lender or Loan. In deciding whether to give, condition or withhold such approval, the City may consider, among other matters, whether or not the proposed Lender is a state or federally chartered bank, savings and loan, or other financial institution which routinely provides construction financing to development projects such as the Project, whether the terms of the Loan are reasonable and customary when compared to the financing terms of similar development projects in the County, the size and financial strength of the proposed Lender, and what effect, if any, any changes requested by the Lender to either this Agreement or any of the exhibits to this Agreement may have upon the City’s rights and remedies hereunder. In connection therewith, in any notice requesting approval of a proposed Lender and Loan, the Developer shall include a statement identifying any amendments, modifications, or other changes to this Agreement or its exhibits which the proposed Lender will request in connection with the Developer’s obtaining of the Loan. The City agrees to reasonably consider, but shall not be obligated to accept, any amendment, modification, or other change to this Agreement or any of the exhibits to this Agreement which materially restricts, diminishes, or burdens the City’s rights and remedies.

6.3.2 Whenever the City delivers any notice or demand to the Developer regarding any breach or default by the Developer under this Agreement that, if not timely cured by the Developer, would entitle the City to terminate this Agreement, the City shall send a copy of such notice to each affected Lender of which the City has received notice and a contact address for transmittal of such notices. Whenever the City delivers any notice or demand to the Developer regarding any breach or default by the Developer under this Agreement that, if not timely cured by the Developer, would entitle the City to exercise its power of termination of the fee estate of all or any portion of the Property pursuant to Section 7.6, the City shall at the same time send a copy 95 46700.12001\35016261.6
DRAFT BBK 8-11-22
40 of such notice or demand to each affected Lender of which the City has received notice and a contact address for transmittal of such notice. Each affected Lender receiving a copy of any such notice shall have the right, at its option, to commence the cure or remedy of any such default of the Developer and to diligently and continuously proceed with such cure or remedy, within one hundred eighty (180) calendar days following its receipt of notice of the default. If a default of the Developer under this Agreement cannot, with diligence, be remedied or cured, or the remedy or cure of such default cannot be commenced, within such one hundred eighty (180) calendar day period, the Lender shall have such additional time as is reasonably necessary to remedy or cure such default of the Developer, but in no event beyond three hundred sixty five (365) calendar days following its receipt of notice of the default. If such default of the Developer can only be remedied or cured by the Lender upon obtaining possession of the Property, the Lender shall seek to obtain possession of the Property with diligence and continuity through a receiver or otherwise, and shall remedy or cure such default of the Developer within one hundred eighty (180) calendar days after obtaining possession of the Property. Nothing contained in this Agreement shall be deemed to permit or authorize any Lender to undertake or continue the construction of any portion of the Project (beyond the extent necessary to conserve or protect improvements or construction already made), without expressly assuming the Developer’s obligations under this Agreement by written agreement approved by the City, in which the Lender agrees to complete, in the manner provided in this Agreement, the improvements to which the Lien or title of the Lender relates, which approval shall not unreasonably be withheld, delayed, or conditioned by the City.

6.3.3 In any case where, one hundred eighty (180) calendar days after delivery of notice of a default of the Developer under Section 6.3.2, an affected Lender has not exercised the option provided in Section 6.3.2 to construct the applicable portions of the Project, or has exercised the option, but has not proceeded diligently and continuously with construction, the City shall have the option, in the City’s sole and absolute discretion, to purchase the Loan of such Lender and any security interest of such Lender under its Loan Documents by payment to the Lender of the amount of the unpaid Loan, including principal, accrued and unpaid interest, late charges, costs, expenses and other amounts payable to the Lender by the Developer under its Loan Documents and, if the ownership of the Property or any portion of the Property has previously vested in such Lender, the City, at its option but not as its obligation, shall be entitled to a conveyance of any title or interest in the Property vested in such Lender from such Lender.

6.3.4 After expiration of the one hundred eighty (180) calendar day period provided for in Section 6.3.3, any affected Lender may demand, in writing, that the City act to exercise or forego the option granted in Section 6.3.3. If the City fails to exercise the right granted in Section 6.3.3 within sixty (60) calendar days from the date of the City’s receipt of such written demand from a Lender, the City shall be conclusively deemed to have waived its right of purchase of that Lender’s interest pursuant to Section 6.3.3.

6.3.5 In the event of a default or breach by the Developer under any Loan Documents, where the Lender has not exercised its option to complete the Project under Section

6.3.3, the City may cure the default of the Developer under the applicable Loan Documents, but is under no obligation to do so, prior to completion of any sale or foreclosure of the Property or any portion thereof under the applicable Loan Documents. The City shall be entitled to reimbursement from the Developer of all costs and expenses incurred by the City in curing any default of the Developer under any Loan Documents.
96 46700.12001\35016261.6
DRAFT BBK 8-11-22
41 6.3.6 In any case where a Lender has acquired title to all or any portion of the Property or Project through foreclosure, deed in lieu of foreclosure, or any other means, and such Lender proposes to enter into an agreement to transfer the Property and/or Project, or any portion thereof, to a third party transferee, the Lender shall provide the City with written notice thereof, which notice shall include a reasonably detailed description of the terms and conditions of the proposed transaction. The City shall have the option, but not the obligation, to purchase the Property and/or Project on substantially the same terms as described in the Lender’s notice, which option, if ever, shall be exercised by written notice from the City to the Lender within twenty (20) days following the City’s receipt of the Lender’s notice. If the City elects not to exercise its option, then, subject to Section 8.2.2, the Lender may complete the transaction described in its notice, provided that such transaction is closed on materially identical terms and conditions as those described in the Lender’s notice to the City. If the Lender and third party transferee desire to materially amend the terms of their proposed transaction, the Lender shall give the City written notice of the proposed modifications and the City shall once again have the right to elect to acquire the Property and the Project (or portion thereof) on terms and conditions substantially similar to those modified terms. If, for any reason, the proposed transaction between the Lender and third party transferee fails to close within two hundred forty (240) days following the date on which the City first receives notice of the proposed transaction (or notice of the proposed modified transaction, whichever is later), then the City once again have the right to elect to acquire the Property and/or Project pursuant to this Section 6.3.6.

6.3.7 The restrictions set forth in this Section 6.3 shall remain in effect only until the recordation of the Certificate of Completion for the Project.

ARTICLE VII

DEFAULTS, REMEDIES AND TERMINATION

7.1 Defaults - General.

7.1.1 Subject to any extensions of time provided for in this Agreement, failure or delay by any Party to perform any term or provision of this Agreement shall constitute an “Event of Default” under this Agreement; provided, however, that if a Party otherwise in default commences to cure, correct or remedy such default, within thirty (30) calendar days after receipt of written notice from the injured Party specifying such default, and shall diligently and continuously prosecute such cure, correction or remedy to completion (and where any time limits for the completion of such cure, correction or remedy are specifically set forth in this Agreement, then within said time limits), such Party shall not be deemed to be in default under this Agreement and no Event of Default shall be deemed to have occurred.

7.1.2 The injured Party shall give written notice of default to the Party in default, specifying the default complained of by the non-defaulting Party. Delay in giving such notice shall not constitute a waiver of any default nor shall it change the time of default.

7.1.3 Any failure or delays by any Party in asserting any of their rights and/or remedies as to any default shall not operate as a waiver of any default or of any such rights or remedies. Delays by any Party in asserting any of its rights and/or remedies shall not deprive that 97 46700.12001\35016261.6
DRAFT BBK 8-11-22
42 Party of its right to institute and maintain any actions or proceedings that it may deem necessary to protect, assert or enforce any such rights or remedies.

7.1.4 In addition to other acts or omissions of the Developer that may legally or equitably constitute a default or breach of this Agreement, the occurrence of any of the following specific events, prior to the issuance of a Certificate of Completion for the Project, shall constitute an “Event of Default” under this Agreement and shall not be subject to the notice and cure provisions of Section 7.1.1:

7.1.4.1 Any material default by the Developer under any Loan Documents for any purpose or reason that remains uncured following any applicable notice from Lender and expiration of any applicable cure period under such Loan Documents.

7.1.4.2 Any representation, warranty or disclosure made in writing to the City by the Developer regarding this Agreement or the Project is intentionally or recklessly and materially false or misleading, whether or not such representation or disclosure appears in this Agreement.

7.1.4.3 The construction of the Project is delayed or suspended for a period in excess of that permitted under Section 4.3 or the Developer has not been issued, or entitled to be issued, a Certificate of Completion by the Project Completion Date.

7.1.4.4 There occurs any event of dissolution, reorganization or termination of the Developer that adversely and materially affects the operation or value of the Property or the Project, and such event is not corrected within five (5) days following written notice of such event from the City to the Developer.

7.1.4.5 The Developer Transfers its interest in this Agreement, the Property, or the Project, or any portion thereof, whether voluntarily or involuntarily or by operation of law, in violation of the terms and conditions of this Agreement and such action is not cured within the period prescribed in Section 8.2.2.

7.1.4.6 The Developer becomes insolvent or a receiver is appointed to conduct the affairs of the Developer under state or federal law.

7.1.4.7 The Developer’s legal status as a California limited liability company authorized by the Secretary of State of the State of California to transact business in California is suspended or terminated.

7.2 LIQUIDATED DAMAGES TO THE CITY. UPON THE OCCURRENCE OF

AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO

THE CLOSE OF ESCROW, THE CITY MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE CITY SHALL BE

RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT TO SELL OR CONVEY

THE PROPERTY OR ANY PORTION THEREOF AND ANY SUCH ESCROW

CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE CITY TO THE DEVELOPER OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE CITY

AND THE DEVELOPER ACKNOWLEDGE THAT IT IS EXTREMELY DIFFICULT AND 98 46700.12001\35016261.6
DRAFT BBK 8-11-22
43 IMPRACTICAL, IF NOT IMPOSSIBLE, TO ASCERTAIN THE AMOUNT OF DAMAGES

THAT WOULD BE SUFFERED BY THE CITY IN THE EVENT OF A CANCELLATION OF

THE ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW. HAVING

MADE DILIGENT BUT UNSUCCESSFUL ATTEMPTS TO ASCERTAIN THE ACTUAL

DAMAGES THE CITY WOULD SUFFER IN THE EVENT OF A CANCELLATION OF THE

ESCROW DUE TO THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE

DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW, THE

CITY AND THE DEVELOPER AGREE THAT A REASONABLE ESTIMATE OF THE CITY’S DAMAGES IN SUCH EVENT IS THE TOTAL SUM OF THE EARNEST MONEY DEPOSIT OR TWENTY THOUSAND ONE HUNDRED FORTY TWO AND NO/100 DOLLARS ($20,142) (THE “LIQUIDATED DAMAGES AMOUNT”). THEREFORE, UPON

THE CANCELLATION OF THE ESCROW BY THE CITY DUE TO THE OCCURRENCE OF

AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO

THE CLOSE OF THE ESCROW, ESCROW HOLDER SHALL IMMEDIATELY CANCEL THE ESCROW AND PAY THE LIQUIDATED DAMAGES AMOUNT (I.E., THE EARNEST MONEY DEPOSIT) TO THE CITY WITHIN FIVE (5) DAYS OF ESCROW CANCELLATION.

RECEIPT OF THE LIQUIDATED DAMAGES AMOUNT SHALL BE THE CITY’S SOLE

AND EXCLUSIVE REMEDY UPON THE CANCELLATION OF THE ESCROW DUE TO

THE OCCURRENCE OF AN EVENT OF DEFAULT BY THE DEVELOPER UNDER THIS AGREEMENT PRIOR TO THE CLOSE OF ESCROW.

CITY’S INITIALS: _____ DEVELOPER’S INITIALS: _____

7.3 DEVELOPER’S ELECTION RE: SPECIFIC ENFORCEMENT OF

AGREEMENT OR WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND LIMITATION ON RECOVERY OF DAMAGES PRIOR TO CLOSE OF ESCROW. UPON

THE OCCURRENCE OF AN EVENT OF DEFAULT PERTAINING TO THE CONVEYANCE

OF THE PROPERTY BY THE CITY UNDER THIS AGREEMENT PRIOR TO CLOSE OF

ESCROW, THE DEVELOPER SHALL, AS ITS SOLE AND EXCLUSIVE REMEDY, HAVE

THE RIGHT TO EXERCISE ONE OF THE ALTERNATIVE REMEDIES DESCRIBED IN SECTIONS 7.3.1 AND 7.3.2. THE DEVELOPER’S ELECTION, ONCE MADE, SHALL BE IRREVOCABLE.

7.3.1 WAIVER OF RIGHT TO SPECIFIC PERFORMANCE AND
LIMITATION ON RECOVERY OF DAMAGES. THE DEVELOPER MAY WAIVE THE REMEDIES SET FORTH IN SECTION 7.3.2 AND MAY CANCEL THE ESCROW PURSUANT TO SECTION 3.10, AND UPON CANCELLATION OF THE ESCROW, THE

DEVELOPER SHALL BE RELIEVED OF ANY OBLIGATION UNDER THIS AGREEMENT

TO PURCHASE OR ACCEPT TITLE TO THE PROPERTY AND ANY SUCH ESCROW

CANCELLATION SHALL BE WITHOUT ANY LIABILITY OF THE DEVELOPER TO THE CITY OR ANY OTHER PERSON ARISING FROM SUCH ACTIONS. THE DEVELOPER

SHALL BE LIMITED TO RECOVERING ANY AMOUNTS ACTUALLY EXPENDED BY

THE DEVELOPER IN REASONABLE RELIANCE ON THIS AGREEMENT PRIOR TO THE

DATE OF THE OCCURRENCE OF THE EVENT OF DEFAULT BY THE CITY, NOT TO EXCEED SIXTY THOUSAND DOLLARS ($60,000). THE DEVELOPER WAIVES ANY 99 46700.12001\35016261.6
DRAFT BBK 8-11-22
44 RIGHT TO RECOVER ANY OTHER SUMS FROM THE CITY ARISING FROM AN EVENT OF DEFAULT BY THE CITY PRIOR TO THE CLOSE OF ESCROW. NOTWITHSTANDING

THE FOREGOING, DEVELOPER SHALL NOT BE ENTITLED TO RECOVER ANY

AMOUNT IF DEVELOPER TERMINATES THIS AGREEMENT PURSUANT TO SECTION

5.8 ABOVE. THE DEVELOPER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542 RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 7.3.1, WHICH CIVIL CODE SECTION READS AS FOLLOWS:
“A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR

RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER

FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM

OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

BY INITIALING BELOW, THE DEVELOPER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY IN CONNECTION WITH THE WAIVERS AND RELEASES OF THIS SECTION 7.3.1.

DEVELOPER’S INITIALS: _____
IN CONNECTION WITH THE WAIVERS OF THIS SECTION 7.3.1, THE

DEVELOPER FURTHER WAIVES THE RIGHT TO RECORD A NOTICE OF PENDENCY

OF ACTION AGAINST ALL OR ANY PORTION OF THE PROPERTY EXCEPT

DEVELOPER MAY RECORD SUCH A NOTICE IN CONNECTION WITH ANY SUIT FOR

SPECIFIC PERFORMANCE PERMITTED HEREUNDER IN THE EVENT DEVELOPER

ELECTS NOT TO WAIVE ITS RIGHT TO SEEK SPECIFIC PERFORMANCE UNDER SECTION 7.3.2.

7.3.2 SPECIFIC PERFORMANCE. THE DEVELOPER MAY
WAIVE THE REMEDIES SET FORTH IN SECTION 7.3.1 AND, IN ACCORDANCE WITH CIVIL CODE SECTION 3384, ET SEQ., INSTITUTE AN ACTION AGAINST THE CITY FOR

SPECIFIC PERFORMANCE OF THE TERMS OR PROVISIONS OF THIS AGREEMENT

WHICH WERE TO HAVE BEEN COMPLETED BY THE CITY PRIOR TO AND AT THE CLOSE OF ESCROW.

7.4 Legal Actions.

7.4.1 Except as otherwise provided by Section 7.3, any Party may institute legal action to cure, correct or remedy any default, to recover damages for any default, or to obtain any other remedy available to that Party under this Agreement or at law or in equity. Such legal actions must be instituted in the Superior Court of the State of California in and for the County of San Bernardino, California, in any other appropriate court within the County of San Bernardino, California.

7.4.2 The procedural and substantive laws of the State of California shall govern the interpretation and enforcement of this Agreement, without regard to conflicts of laws 100
46700.12001\35016261.6
DRAFT BBK 8-11-22
45 principles. The Parties acknowledge and agree that this Agreement is entered into, is to be fully performed in and relates to real property located in the City of Ontario, County of San Bernardino, California.

7.5 Rights and Remedies are Cumulative. Except as otherwise expressly stated in this Agreement, the rights and remedies of the Parties set forth in this ARTICLE VII are nonexclusive and cumulative, and the exercise by any Party of one or more of such rights or remedies shall not preclude the exercise by it, at the same or different times, of any other rights or remedies for the same default or any other default by the other Party(ies).

7.6 City Power of Termination and Reverter Regarding the Property.

7.6.1 The City hereby reserves a power of termination pursuant to Civil Code Sections 885.010, et seq., exercisable by the City, in its sole and absolute discretion, upon sixty (60) calendar days written notice to the Developer referencing this Section 7.6, to terminate the fee interest of the Developer in the Property and/or any improvements to the Property and revest such fee title in the City and take possession of all or any portion of such real property and improvements, without compensation to the Developer, upon the occurrence of an Event of Default by the Developer following the Close of Escrow and prior to the issuance of the Certificate of Completion.

7.6.2 The sixty (60) calendar day written notice specified in Section 7.6.1 shall specify the Event of Default by the Developer triggering the City’s exercise of its power of termination. The City shall proceed with its remedy set forth in Section 7.6.1 only if the Developer continues in default for a period of sixty (60) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion.

7.6.3 The rights of the City under this Section 7.6 shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:

7.6.3.1 Each Lien recorded against the Property and specifically authorized by this Agreement as a Permitted Transfer;

7.6.3.2 Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded documents or interests applicable to the Property and specifically authorized by this Agreement as a Permitted Transfer.

7.6.4 Upon the City’s exercise of its power of termination pursuant to this Section 7.6, the Developer or its successors or assigns shall convey by grant deed to the City title to the Property, as specified in the City’s notice pursuant to Section 7.6.1, and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by the Developer and a notary in a manner suitable for recordation. The City may enforce its rights pursuant to this Section 7.6 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.
101
46700.12001\35016261.6
DRAFT BBK 8-11-22
46 7.6.5 Upon the revesting in the City of title to the Property, whether by grant deed or court decree, the City shall exercise its reasonable good faith efforts to resell the Property at its then fair market value, as soon and in such manner as the City shall, in its sole discretion, find feasible and consistent with the objectives of the City’s General Plan, to a qualified and responsible person or persons (as reasonably determined by the City) who will assume the Developer’s obligations to begin and/or complete and/or operate that portion of the Project located on the Property, or such other replacement development acceptable to the City, in its sole and absolute discretion. Upon any such resale of the Property (or any portion thereof), the proceeds to the City from such sale shall be applied as follows:

7.6.5.1 First, to pay any and all amounts required to release/reconvey any Lien recorded against all or any portion of the Property; and

7.6.5.2 Second, to reimburse the City on its own behalf or on behalf of the City for all actual internal and third-party costs and expenses previously or currently incurred by the City related to the Property, the Project, or this Agreement, including, but not limited to, customary and reasonable fees or salaries to third-party personnel engaged in such actions, in connection with the recapture, management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by the City with respect to the Property or portion thereof; any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by the Developer with respect to the acquisition of the Property or the construction of the Project; and amounts otherwise owing to the City by the Developer or its successors or assigns pursuant to the terms of this Agreement; and

7.6.5.3 Third, to the extent that any proceeds from such resale are, thereafter, available, taking into account any prior encumbrances with a claim thereto, to reimburse the Developer, or its successors in interest to the equal to the sum of: (1) the Purchase Price; and (2) the third-party costs actually incurred and paid by the Developer regarding the development of the Project located on the Property, including, but not limited to, pro rata costs of carry, taxes, and other items as set forth in a cost certification to be made by the Developer to the City prior to any such reimbursement, which certification shall be subject to the City’s reasonable approval; provided, however, that the Developer shall not be entitled to reimbursement for any expenses to the extent that such expenses relate to any loans, Liens or other encumbrances that are paid by the City pursuant to the provisions of sub-sections 7.6.5.1 or 7.6.5.2 above.

7.6.5.4 Any portion of the proceeds from the resale of the Property remaining after the foregoing applications shall be retained by the City as their sole and exclusive property.

7.6.5.5 The City’s power to terminate per section 7.6 ends upon issuance of a Certificate of Completion.

7.6.6 IMMEDIATELY FOLLOWING THE SIXTY (60) DAY PERIOD
SPECIFIED IN SECTION 7.6.1, ABOVE, THE CITY, ITS EMPLOYEES AND AGENTS

SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF THE PROPERTY

AND ANY IMPROVEMENTS THEREON, WITHOUT FURTHER NOTICE OR 102
46700.12001\35016261.6
DRAFT BBK 8-11-22
47 COMPENSATION TO THE DEVELOPER. BY INITIALING BELOW, THE DEVELOPER

HEREBY EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED BY LAW, ANY

AND ALL RIGHTS THAT THE DEVELOPER MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 791 AND CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 1162,

AS THOSE STATUTES MAY BE AMENDED, REPLACED, RENUMBERED OR

SUBSTITUTED, OR UNDER ANY OTHER STATUTES OR COMMON LAW PRINCIPLES OF SIMILAR EFFECT.

DEVELOPER’S INITIALS: _____

7.6.7 THE DEVELOPER ACKNOWLEDGES AND AGREES THAT THE
CITY’S EXERCISE OF ITS POWER OF TERMINATION AND RIGHT OF REENTRY PURSUANT TO THIS SECTION 7.6 MAY WORK A FORFEITURE OF THE ESTATE IN THE

DEFAULTED PORTION OF THE PROPERTY CONVEYED TO THE DEVELOPER THROUGH THE GRANT DEED. THE DEVELOPER HEREBY EXPRESSLY WAIVES, TO

THE MAXIMUM EXTENT ALLOWED BY LAW, ANY AND ALL EQUITABLE AND

LEGAL DEFENSES THAT THE DEVELOPER MAY HAVE TO SUCH FORFEITURE,

INCLUDING, BUT NOT LIMITED TO, THE DEFENSES OF LACHES, WAIVER, ESTOPPEL, SUBSTANTIAL PERFORMANCE OR COMPENSABLE DAMAGES. THE

DEVELOPER FURTHER EXPRESSLY WAIVES, TO THE MAXIMUM EXTENT ALLOWED

BY LAW, ANY AND ALL RIGHTS AND DEFENSES THAT THE DEVELOPER MAY HAVE UNDER CALIFORNIA CIVIL CODE SECTION 3275 OR ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT. THE DEVELOPER ACKNOWLEDGES

THAT THE TERMS AND CONDITIONS OF THIS AGREEMENT REFLECT THE POSSIBILITY OF FORFEITURE BY VIRTUE OF THE EXERCISE OF THE CITY’S POWER OF TERMINATION PROVIDED IN THIS SECTION 7.6 AND FURTHER ACKNOWLEDGE

THAT IT HAS RECEIVED INDEPENDENT AND ADEQUATE CONSIDERATION FOR ITS

WAIVER AND RELINQUISHMENT OF RIGHTS AND REMEDIES PURSUANT TO SECTION 7.6.6. AND THIS SECTION 7.6.7. THESE WAIVERS DO NOT EXTEND TO ANY

RIGHT OF REDEMPTION THAT THE DEVELOPER MAY HAVE UNDER APPLICABLE

LAW IN THE CASE OF A FORECLOSURE WHICH ARISES FROM UNPAID MONETARY AMOUNTS.

DEVELOPER’S INITIALS: _____

7.7 Developer Indemnification of the City. In addition to any other specific indemnification or defense obligations of the Developer set forth in this Agreement, the Developer agrees to indemnify, defend (upon written request by the City and with counsel reasonably acceptable to the City and hold harmless the Indemnified Parties, from any and all losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, of whatever kind or nature, that are in any manner directly or indirectly caused, occasioned or contributed to in whole or in part, through any act, omission, fault or negligence of the Developer or the Developer’s officers, agents, employees, independent contractors or subcontractors of any tier, relating in any 103
46700.12001\35016261.6
DRAFT BBK 8-11-22
48 manner to this Agreement, any work to be performed by the Developer related to this Agreement, the Property, or the Project, or any authority or obligation exercised or undertaken by the Developer under this Agreement. Without limiting the generality of the foregoing, the Developer’s obligation to indemnify the Indemnified Parties shall include injury or death to any person or persons, damage to any property, regardless of where located, including the property of the Indemnified Parties, any workers’ compensation or prevailing wage determination, claim or suit or any other matter arising from or connected with any goods or materials provided or services or labor performed regarding the Project or the Property on behalf of the Developer by any person or entity. The indemnity obligations in this paragraph shall not extend to losses, liabilities, charges, damages, claims, liens, causes of action, awards, judgments, costs and expenses, including, but not limited to reasonable attorney’s fees of counsel retained by the Indemnified Parties, expert fees, costs of staff time, and investigation costs, which are caused by the sole negligence or willful misconduct of the City or its agents.

ARTICLE VIII
GENERAL PROVISIONS.

8.1 Incorporation of Recitals. The Recitals of fact set forth preceding this Agreement are true and correct and are incorporated into this Agreement in their entirety by this reference.

8.2 Restrictions on Transfers.

8.2.1 The Developer acknowledges that the qualifications and identity of the Developer are of particular importance to the City. The Developer further recognizes and acknowledges that the City has relied and is relying on the specific qualifications and identity of the Developer in entering into this Agreement with the Developer and, as a consequence, Transfers are permitted only as expressly provided in this Agreement. The Developer shall promptly notify the City in writing of any and all changes whatsoever in the identity of the business entities or individuals either comprising or in control of the Developer, as well as any and all changes in the interest or the degree of control of the Developer by any such person, of which information the Developer or any of its partners, members or officers are notified or may otherwise have knowledge or information.

8.2.2 Except as expressly permitted in this Agreement, the Developer represents to the City that it has not made and agrees that it will not make or create, or suffer to be made or created, any Transfer other than a Permitted Transfer, either voluntarily, involuntarily or by operation of law, until after the recordation of a Certificate of Completion for the Project subject to the Transfer; provided, however, that the City may approve in its reasonable discretion, Transfers other than Permitted Transfers prior to the recordation of a Certificate of Completion. In deciding whether to approve or disapprove any proposed Transfer, the City may consider the proposed transferee’s financial strength and the experience of the proposed transferee and its senior management in undertaking and successfully completing projects of a similar type and size as the Project or that portion of the Project proposed to be transferred. The City may not consider the amount of money that the proposed transferee is paying or intends to pay to the Developer as consideration for such Transfer or condition approval of the Transfer on the sharing of any such payment made or to be made to the Developer with the City. In connection with a proposed 104
46700.12001\35016261.6
DRAFT BBK 8-11-22
49 Transfer, Developer shall submit to the City appropriate documentation, including but not limited to a form of Assignment and Assumption Agreement, for City’s review and written approval, which approval shall not be unreasonably delayed or denied. In addition to the foregoing terms and conditions, if a proposed Transfer occurs prior to the City’s issuance of a building permit, City shall have a right of first refusal (“ROFR”) to reacquire the Property and/or Project (or portion thereof) on substantially the same price and terms as the proposed transferee, as memorialized in a final but unexecuted purchase and sale or other definitive agreement. City shall have thirty (30) days from the date of notice by Developer to exercise its ROFR by providing written notice of acceptance, unless further extended by mutual written agreement of the Parties; provided, nothing herein shall prohibit Developer from transferring the Property and/or Project to City after expiration of the ROFR or abridge City’s rights of approval of the proposed Transfer to a proposed transferee regardless of the ROFR. Any Transfer made in contravention of this Section 8.2 shall be voidable at the election of the City and this Agreement may be terminated by the City or the City may exercise any other remedy available to the City under the terms of this Agreement, provided, however, that (i) the City shall first notify the Developer in writing of its intention to terminate this Agreement or to exercise any other remedy, and (ii) the Developer shall have twenty (20) calendar days following its receipt of such written notice to commence and, thereafter, diligently and continuously proceed to cure the default of the Developer and submit evidence of the initiation and satisfactory completion of such cure to the City, in a form and substance reasonably satisfactory to the City.

8.2.3 The Developer shall provide the City no less than thirty (30) days prior written notice of any proposed Transfer which the Developer desires to enter into prior to the recordation of a Certificate of Completion for the Project subject to the Transfer, other than a Permitted Transfer for which no notice shall be required. The Developer shall have the burden of demonstrating to the City’s reasonable satisfaction that the proposed Transfer meets the conditions and requirements of this Agreement with respect to Permitted Transfers

8.2.4 In connection with the City’s review of any request for approval of any proposed Transfer under Section 1.1.73 and this Section 8.2, or of any Lender or Loan under Section 6.3, the Developer agrees to reimburse the City for those third party costs and expenses incurred by the City in connection with its review of the Developer’s request for approval, including, without implied limitation, the reasonable fees and costs of those outside consultants and legal counsel retained by the City to assist it in its review of the Developer’s request, including the City Attorney.

8.2.5 Anything in this Agreement to the contrary notwithstanding, the restrictions and prohibitions on Transfers contained in this Section 8.2 shall terminate upon issuance of a Certificate of Completion for the Project.

8.3 Notices, Demands and Communications Between the Parties.

8.3.1 Any and all notices, demands or communications submitted by any Party to another Party pursuant to or as required by this Agreement shall be proper, if in writing and dispatched by messenger for immediate personal delivery, by a nationally recognized overnight courier service or by registered or certified United States Mail, postage prepaid, return receipt requested, to the principal office of the City or the Developer, as applicable, as designated 105
46700.12001\35016261.6
DRAFT BBK 8-11-22
50 in Section 8.3.2. Such written notices, demands or communications may be sent in the same manner to such other addresses as either Party may from time to time designate. Any such notice, demand or communication shall be deemed to be received by the addressee, regardless of whether or when any return receipt is received by the sender or the date set forth on such return receipt, on the day that it is delivered by personal delivery, on the date of delivery by a nationally recognized overnight courier service or three (3) calendar days after it is placed in the United States Mail, as provided in this Section 8.3.

8.3.2 The following are the authorized addresses for the submission of notices, demands or communications to the Parties:

TO DEVELOPER: D STREET TOWNHOME APARTMENTS,
Attn: George Voigt
119 E. Joseph St.

Arcadia, CA 91006
(T) 562 400 4473
(F)
COPY TO: Joshua Cohen, Esq.
760 E. Colorado Blvd. #600
Pasadena CA 91101
[email protected]
(T) 626 243 1121
(F) 626 243 1111
TO CITY:

COPY TO:

City of Ontario
Attention: City Manager
303 East B Street
Ontario, CA 91764
(T) (909) 395-2000
(F) (909) 395-2420
Best Best & Krieger, LLP
18101 Von Karman Ave, Suite 1000
Irvine, CA 92614
Attention: Elizabeth Wagner Hull
(T) 949-263-2600
(F) 949-260-0972

8.4 Conflict of Interest. No member, official or employee of the City, having any conflict of interest, direct or indirect, related to this Agreement, the Property, or the development or operation of the Project shall participate in any decision relating to this Agreement. The Parties represent and warrant that they do not have knowledge of any such conflict of interest.

8.5 Warranty Against Payment of Consideration for Agreement. The Developer warrants that it has not paid or given, and will not pay or give, any third party any money or other 106
46700.12001\35016261.6
DRAFT BBK 8-11-22
51 consideration for obtaining this Agreement. Third parties, for the purposes of this Section 8.5, shall not include persons to whom fees are paid for professional services, if rendered by attorneys, financial consultants, accountants, engineers, architects and the like when such fees are considered necessary by the Developer.

8.6 Non-liability of City, Officials and Employees. No member, official or employee of the City shall be personally liable to the Developer, or any successor in interest of the Developer, in the event of any default or breach by the City under this Agreement or for any amount that may become due to the Developer or to its successor, or on any obligations under the terms of this Agreement, except as may arise from the gross negligence or willful acts of such member, official or employee.

8.7 Unavoidable Delay; Extension of Time of Performance.

8.7.1 Subject to specific provisions of this Agreement, performance by any Party under this Agreement shall not be deemed, or considered to be, in default where any such default is due to an Unavoidable Delay that is not attributable to the fault of the Party claiming an extension of time to perform. An extension of time for any Unavoidable Delay shall be for the period of the Unavoidable Delay and shall commence to run from the date of occurrence of the Unavoidable Delay, if the Party asserting the existence of the Unavoidable Delay provides the other Parties with written notice of the occurrence of the Unavoidable Delay, within ten (10) days of the commencement of such asserted Unavoidable Delay. Otherwise, the extension of time for an Unavoidable Delay shall commence on the date of receipt of written notice of the occurrence of the Unavoidable Delay by the Parties not requesting an extension of time to perform due to such Unavoidable Delay.

8.7.2 The Parties expressly acknowledge and agree that changes in either general economic conditions or changes in the economic assumptions of either of them that may have provided a basis for entering into this Agreement and that occur at any time after the execution of this Agreement, do not constitute an Unavoidable Delay and do not provide any Party with grounds for asserting the existence of an Unavoidable Delay in the performance of any covenant or undertaking arising under this Agreement. Each Party expressly assumes the risk that changes in general economic conditions or changes in such economic assumptions relating to the terms and covenants of this Agreement could impose an inconvenience or hardship on the continued performance of such Party under this Agreement.

8.8 Inspection of Books and Records. The City shall have the right at all reasonable times, at the City’s cost and expense, to inspect the books and records of the Developer pertaining to the Property and/or the Project. The Developer shall also have the right at all reasonable times, at the Developer’s sole cost and expense, to inspect the books and records of the City pertaining to the Property and/or the Project, to the extent relevant to the Developer’s obligations under this Agreement. Nothing in this Section 8.8 or elsewhere in this Agreement shall, however, constitute a waiver or modification of any right or privilege which any Party may have with respect to any document, statement, or other record, including, without implied limitation, the attorney-client privilege, the attorney-work product privilege, any privilege arising under any state or federal evidentiary code or rule, or any privilege or exclusionary right arising under any state or federal freedom of information or public records disclosure law. 107
46700.12001\35016261.6
DRAFT BBK 8-11-22
52 8.9 Real Estate Commissions. The City shall not be liable for any real estate commissions, brokerage fees or finder fees that may arise from or be related to this Agreement.

The Developer shall pay any fees or commissions or other expenses related to its retention or employment of real estate brokers, agents or other professionals.

8.10 Binding on Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective heirs, executors, administrators, legal representatives, successors, and assigns.

8.11 Entire Agreement.

8.11.1 This Agreement shall be executed in three (3) duplicate originals, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. This Agreement including all exhibits shall constitute the entire understanding and agreement of the Parties regarding the Property, the Project, and the other subjects addressed in this Agreement.

8.11.2 This Agreement integrates all of the terms and conditions mentioned in this Agreement or incidental to this Agreement, and supersedes all negotiations or previous agreements between the Parties with respect to the Property, the Project, and the other subjects addressed in this Agreement.

8.11.3 None of the terms, covenants, agreements or conditions set forth in this Agreement shall be deemed to be merged with any deed conveying title to the Property and this Agreement shall continue in full force and effect before and after such conveyances.

8.11.4 All waivers of the provisions of this Agreement and all amendments to this Agreement must be in writing and signed by the authorized representative(s) of all Parties.

8.12 Execution of this Agreement. Following execution of three (3) originals of this Agreement by the authorized representative(s) of the Developer and prompt delivery of such originals, thereafter, to the City, accompanied by an official action of the governing body of the Developer authorizing the individuals executing this Agreement on behalf of the Developer to execute and perform this Agreement, in form and substance acceptable to the City, this Agreement shall be subject to the review and approval by the City Council, in their sole and absolute discretion, no later than forty-five (45) calendar days after such date of delivery to the City. If the City have not approved, executed, and delivered an original of this Agreement to the Developer within the foregoing time period, then no provision of this Agreement shall be of any force or effect for any purpose.

8.13 Implementation of this Agreement. City shall implement this Agreement through its City Manager. The City Manager is hereby authorized by the City to enter into agreements and sign documents referenced in this Agreement or reasonably required to implement this Agreement on behalf of City, issue approvals, interpretations or waivers and enter into amendments to this Agreement on behalf of City. All other actions shall require the consideration and approval of the City Council, unless expressly provided otherwise by action of the City Council. Nothing in this Section 8.13 shall restrict the submission to the City Council of any matter within the City Manager’s authority under this Section 8.13, in the City Manager’s sole and absolute discretion, 108
46700.12001\35016261.6
DRAFT BBK 8-11-22
53 to obtain the City Council’s express and specific authorization on such matter. The specific intent of this Section 8.13 is to authorize certain actions on behalf of City by the City Manager, but not to require that such actions be taken by the City Manager, without consideration by the City Council.

8.14 Survival of Indemnity Obligations. All general and specific indemnity and defense obligations of the Parties set forth in this Agreement shall survive the expiration or termination of this Agreement, the execution or recordation of the Grant Deed, and/or the issuance and recordation of any Certificate of Completion, but subject to any express limitations set forth elsewhere in this Agreement.

8.15 Time Declared to be of the Essence. As to the performance of any obligation hereunder as to which time is a component thereof, the performance of such obligation within the time provided is of the essence.
[Signatures on Following Pages]
109
46700.12001\35016261.6
DRAFT BBK 8-11-22
54 SIGNATURE PAGE
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
CITY:

THE CITY OF ONTARIO
a California municipal corporation
By: ___________________
City Manager
Dated:_________________, 2022
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
By: _______________________
City Attorney
110
46700.12001\35016261.6
DRAFT BBK 8-11-22
55 SIGNATURE PAGE
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
DEVELOPER:

D STREET TOWNHOME APARTMENTS,
LLC, a California limited liability company
By: ___________________
Manager
Dated:_________________, 2022
111
DRAFT BBK 8-11-22

EXHIBIT A

EXHIBIT A
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Legal Description of the Property

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ONTARIO,

IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

PARCEL A:

THE SOUTHERLY 70 FEET OF LOT 16 AND THE SOUTHERLY 70 FEET OF THE WESTERLY 46 FEET OF LOT 17, BLOCK 21, TOWN OF ONTARIO, IN THE CITY OF

ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 9, PAGE 43, OF MAPS, RECORDS OF SAID COUNTY.

APN: 1048-354-13
PARCEL B:

LOTS 13, 14 AND 15, BLOCK 21, ACCORDING TO MAP OF TOWN OF ONTARIO, IN

THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 9, PAGE 43, OF MAPS, RECORDS OF SAID COUNTY.

APN: 1048-354-12
PARCEL C:

THAT PORTION OF A 20 FOOT ALLEY LYING ADJACENT AND SOUTHERLY FROM

THE DESCRIBED LAND IN PARCEL A, ABOVE DESCRIBED AND LYING ADJACENT

AND NORTHERLY FROM THE DESCRIBED LAND IN PARCEL B, ABOVE DESCRIBE 112
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT B

EXHIBIT B
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Property Site Plan
113
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT C

EXHIBIT C
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Scope of Development
The Developer proposes to construct a three-story, townhome residential development project, consisting of 26 townhomes containing 52 bedrooms and a 2-car garage for each townhome. 114
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

EXHIBIT D
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Schedule of Performance
Action Date Action to
be Completed
By
Agreement
Section(s)

1. Effective Date. See Section 1.3 1.3

2. Developer to open Escrow and, concurrently,
deposit Earnest Money Deposit into Escrow.

Within 14 days
following the
Effective Date
(“Escrow
Opening Date”)

1.1.37, 3.1

3. Due Diligence Period commences. The date of the
Escrow Opening
Date

1.1.25, 2.4

4. Developer to submit application(s) for Entitlements. Within 60 days following the
Effective Date
(“Entitlement
Application
Date”)

1.1.29, 2.6.1

5. Developer to deliver Developer’s Title Notice to
City
Within 60 days
following Escrow
Opening Date

1.1.70, 2.3

6. City to deliver City’s Title Notice Response to
Developer, if appropriate.

Within 20 days
following City’s
receipt of
Developer’s Title
Notice

2.3 7. Developer to deliver Developer’s Title Notice
Waiver, if appropriate.

Within 10 days
following
Developer’s
receipt of City’s
Title Notice
Response

2.3 8. Developer to deliver its Due Diligence Investigation Conclusion Notice.

On or before the
end of the Due
Diligence Period

2.4.1 9. Due Diligence Period ends. On the 90th day
following the
Escrow Opening
Date

1.1.25, 2.4
115
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
Action Date Action to
be Completed
By
Agreement
Section(s)

10. Developer to obtain Entitlements. Within 9 months
of Entitlement
Application Date
(“Entitlement
Obtainment
Date”)

1.1.30, 2.6

11. Developer to submit Plans and Specifications to
City.

Within 60 days
from Entitlement
Obtainment Date
(“Construction
Drawings
Submittal Date”)

1.1.14, 2.6.1

12. Developer to pull building permit. Within thirty (30) days from Close
of Escrow
(“Permit
Issuance Date”)

1.1.10 13. Escrow Closing Date -- Except that such closing date will be extended until seven (7) days after
plans for Project are approved and “ready to issue
permits” status is achieved.

The tenth (10th)
business day
following Escrow
Holder’s receipt
of written
confirmation
from both City
and Developer of
the satisfaction or
waiver of all
conditions
precedent to the
Close of Escrow
for the Property.

2.6.7 (building
permits), 3.6

14. Developer to commence construction of the Project. No later than 30 days from Permit
Issuance Date
(“Construction
Commencement
Date”)

1.1.12, 4.3

15. Developer to complete construction of the Project
(issuance of certificate of occupancy for the entire
Project by the City)
Within 24
months from
Commencement
Construction
Date

1.1.63, 4.3
116
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

EXHIBIT E
TO 2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Form of Grant Deed
[Attached Behind This Page]
117
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

RECORDING REQUESTED BY
AND WHEN RECORDED MAIL TO:
_____________

THE CITY OF ONTARIO

GRANT DEED

PART ONE
FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, THE CITY OF SAN BERNARDINO, a California municipal corporation (“Grantor”), hereby grants to _____________, a California limited liability company (“Grantee”), that certain real property located in the City of Ontario, County of San Bernardino, State of California, specifically described in Exhibit “A” attached to this Grant Deed (“Property”) and made a part of this Grant Deed by this reference.

PART TWO
The conveyance of the Property by the Grantor to the Grantee in Part One is subject to the following community development terms, conditions, covenants and restrictions:

Section 1. Conveyance Subject to Terms of a Disposition and Development Agreement. The Property is conveyed subject to that certain 2022 Disposition and Development Agreement (D Street and Laurel Avenue), dated as of _______, 2022, between the Grantor and the Grantee (the “Agreement” or “DDA”). The provisions of the Agreement are incorporated into this Grant Deed by this reference and are deemed to be a part of this Grant Deed, as though fully set forth in this Grant Deed.

Section 2. Condition of Property. The Property is conveyed by the Grantor to the Grantee in its “AS IS,” “WHERE IS” and “SUBJECT TO ALL FAULTS CONDITION,” as of the date of recordation of this Grant Deed, with no warranties, expressed or implied, as to the environmental or other physical condition of the Property, the presence or absence of any patent or latent environmental or other physical condition on or in the Property, or any other matters affecting the Property.

Section 3. Obligation to Refrain from Discrimination. The Grant herein is expressly subject to a covenant upon Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, that:

3.1 There shall be no discrimination against or segregation of any person, or group of persons, on account of sex, marital status, race, color, religion, creed, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the Property nor shall the Grantee, itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessees or vendees of the Property.

The covenant of this Section 3 shall run with the land of the Property and shall be enforceable against the Grantee and its successors and assigns in perpetuity. . 118
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

3.2 The covenant of this Section 3 shall run with the land of the Property in perpetuity.

Section 4. Form of Non-Discrimination and Non-Segregation Clauses. The Grant herein is subject to a covenant on the Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, that:

4.1 The Grantee, such successors and such assigns shall refrain from restricting the sale, lease, sublease, rental, transfer, use, occupancy, tenure or enjoyment of the Property (or any portion thereof) on the basis of sex, marital status, race, color, religion, creed, ancestry or national origin of any person. All deeds, leases or contracts pertaining to the Property shall contain or be subject to substantially the following non-discrimination or non-segregation covenants:
(a) In deeds: “The grant herein is subject to a covenant by and for Grantor and the public that the Grantee, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed, nor shall the grantee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sub-tenants, sub-lessee, or vendees in the premises herein conveyed. The foregoing covenants shall run with the land.” (b) In leases: “The Lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, and this lease is made and accepted upon and subject to the following conditions: That there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the leasing, subleasing, transferring, use, occupancy, tenure, or enjoyment of the premises herein leased nor shall the lessee itself, or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants lessees, sub-lessee, sub-tenants, or vendees in the premises herein leased.” (c) In contracts: “There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, marital status, national origin, or ancestry, in the sale, lease, sublease, transfer, use, occupancy, tenure, or enjoyment of the premises herein conveyed or leased, nor shall the transferee or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use, or occupancy, of tenants, lessees, sub-lessees, sub-tenants, or vendees of the premises herein transferred.” The foregoing provision shall be binding upon and shall obligate the contracting party or parties and any subcontracting party or parties, or other transferees under the instrument.

4.2 The covenants of this Section 4 shall run with the land of the Property in perpetuity.
119
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
Section 5. Covenant to Maintain Property on Tax Rolls. The Grant herein is subject to the following covenant binding Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, that:

5.1 The entire Property shall remain on the County secured real property tax rolls for twenty years from the date of issuance of the certificate of completion for the Project.

5.2 The Grantee shall pay all property tax bills with respect to the Property and all improvements thereon on or before the last day for the timely payment of each property tax installment during such time period and to timely pay all supplemental tax bills regarding the Property issued by the County, but may use payment plans approved by the Tax Assessor in a timely fashion. The Grantee further covenants and agrees to provide to the Grantor, upon thirty (30) days’ written request by Grantor: (i) a true and correct copy of all property tax assessment notices, property tax bills and property tax assessment correspondence by and between the Grantee and the County regarding the Property and all improvements thereon, with respect to the preceding fiscal year of the County, and (ii) cancelled checks issued by the Grantee in payment of all property tax payments that are made to the County regarding the Property and all improvements thereon, with respect to the preceding County fiscal year.

5.3 The covenants of this Section 5 shall run with the land of the Property, shall be enforceable against the Grantee and its successors and assigns.

Section 6. No Conveyance to Tax Exempt Entity. The grant herein is subject to a covenant binding on Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, that:

6.1 The Grantee shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property, the Project, or any portion of any of the foregoing to any entity or person, or for any use of the Property, the Project, or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, the Project, or any portion of any of the foregoing, without the prior written consent of the Grantor, which may be withheld in the Grantor’s sole and absolute discretion, for twenty years from the date of issuance of the certificate of completion for the Project.

6.2 If the Property, or any portion of the Property, shall be conveyed, transferred or sold to any entity or person that is partially or wholly exempt from the payment of real or personal property taxes otherwise assessable against the Property, or any portion thereof, without the prior written consent of the Grantor, then the Grantee shall pay to the Grantor a fee in lieu of payment of such taxes each year in an amount determined by the Grantor to be one percent (1%) of the “full cash value” of the Property, or portion thereof, as may be subject to such exemption from payment of real or personal property taxes. The Grantor’s determination of “full cash value” for in-lieu payment purposes under this Section 6 shall be established by the Grantor each year, if necessary, by reference to the real or personal property tax valuation principles and practices generally applicable to a county property tax assessor under Section 1 of Article XIIIA of the California Constitution. The Grantor’s determination of “full cash value” and that an in-lieu 120
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
payment is due shall be conclusive on such matters. If the Grantor determines that an amount is payable as an in-lieu payment under this Section 6 in any tax year, then such amount shall be paid to the Grantor for that tax year within forty-five (45) days following transmittal by the Grantor to the Grantee of an invoice for payment of the in-lieu amount.

6.3 The covenants of this Section 6 shall run with the land of the Property, shall be enforceable against the Grantee and its successors and assigns of the Property.

Section 7. Maintenance Condition of the Property. The Grantee for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

7.1 The areas of the Property that are subject to public view (including all existing and future improvements, paving, walkways, landscaping, exterior signage and ornamentation) shall be maintained in good repair and a neat, clean and orderly condition, ordinary wear and tear excepted. If there is an occurrence of an adverse condition on any area of the Property that is subject to public view in contravention of the general maintenance standard described above (a “Maintenance Deficiency”), then the Grantor shall notify the Grantee in writing of the Maintenance Deficiency. If the Grantee fails to cure or commence and diligently pursue to cure the Maintenance Deficiency within thirty (30) days of its receipt of notice of the Maintenance Deficiency, the Grantor shall have the right to enter the Property and perform all acts necessary to cure the Maintenance Deficiency, or to take any other action at law or in equity that may then be available to the Grantor to accomplish the abatement of the Maintenance Deficiency. Any sum expended by the Grantor for the abatement of a Maintenance Deficiency on the Property pursuant to this Section 7.1 shall become a lien on the Property, as applicable. If the amount of the lien is not paid within thirty (30) days after written demand for payment from the Grantor to the Grantee, the Grantor shall have the right to enforce the lien in the manner provided in Section 7.3.

7.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Grantee by either painting over the evidence of such vandalism with a paint that has been colormatched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti and is not removed within five (5) days following the time of the discovery of the graffiti, the Grantor shall have the right to enter the Property and remove the graffiti, without notice to the Grantee. Any sum expended by the Grantor for the removal of graffiti from the Property pursuant to this Section 7.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Grantee from the Grantor, the Grantor shall have the right to enforce its lien in the manner provided in Section 7.3.

7.3 The Parties further mutually understand and agree that the rights conferred upon the Grantor under this Section 7.3 expressly include a grant by the Grantee of a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Grantee and it successors under Section 7.1 or Section

7.2, including the reasonable attorneys’ fees and costs of the Grantor associated with the abatement 121
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the Grantor” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney.

7.4 The provisions of this Section 7 shall be covenants running with the land of the Property, shall be enforceable against the Grantee and its successors and assigns until such time that a Certificate of Completion is recorded. Nothing in the foregoing provisions of this Section 7 shall be deemed to preclude the Grantee from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City. The expiration of the Covenant on completion does not restrict City from enforcement of any other laws related to public or private nuisances, graffiti removal, or from issuing notices of violations of any City or state code regarding health and safety, building codes or similar codes.

Section 8. Grantor Power of Termination Regarding the Property.

8.1 The Grantor hereby reserves a power of termination pursuant to Civil Code Sections 885.010, et seq., exercisable by the Grantor, in its sole and absolute discretion, upon sixty (60) calendar days written notice to the Grantee referencing this Section 8.1, to terminate the fee interest of the Grantee in the Property and/or any improvements to the Property and revest such fee title in the Grantor and take possession of all or any portion of such real property and improvements, without compensation to the Grantee, upon the occurrence of an Event of Default by the Grantee following the Close of Escrow and prior to the issuance of the Certificate of Completion for Property. The power to terminate set forth in this Section 8 ends and ceases upon the issuance of a Certificate of Completion for the Property even if such Certificate of Completion is issued after a notice of default is served.

8.2 The sixty (60) calendar day written notice specified in Section 8.1 shall specify the Event of Default by the Grantee triggering the Grantor’s exercise of its power of termination, and set forth the manner of curing said default, and be served upon any Lender, or Mortgagor as well as Grantee. The Grantor shall proceed with its remedy set forth in Section 8.1 only if the Grantee continues in default for a period of sixty (60) calendar days following such notice or, upon commencing to cure such default, fails to diligently and continuously prosecute said cure to satisfactory conclusion.

8.3 The rights of the Grantor under this Section 8 shall be subject and subordinate to, shall be limited by and shall not defeat, render invalid or limit:
(1) Each Lien recorded against the Property and specifically authorized by this Agreement as a Permitted Transfer;
(2) Any leases, declarations of covenants, conditions and restrictions, easement agreements or other recorded
documents or interests applicable to the Property and
specifically authorized by this Agreement as a Permitted Transfer.
122
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

8.4 Upon the Grantor’s exercise of its power of termination pursuant to this Section 8, the Grantee or its successors or assigns shall convey by grant deed to the Grantor title to the Property, as specified in the Grantor’s notice pursuant to Section 8.1, and all improvements thereon, in accordance with Civil Code Section 1109, as such code section may hereafter be amended, renumbered, replaced or substituted. Such conveyance shall be duly acknowledged by the Grantee and a notary in a manner suitable for recordation. The Grantor may enforce its rights pursuant to this Section 8.4 by means of an injunctive relief or forfeiture of title action filed in any court of competent jurisdiction.

8.5 Upon the revesting in the Grantor of the Property, whether by grant deed or court decree, the Grantor shall exercise its reasonable good faith efforts to resell the Property at its then fair market value, as soon and in such manner as the Grantor shall, in its sole discretion, find feasible and consistent with the objectives of the City’s General Plan, to a qualified and responsible person or persons (as reasonably determined by the Grantor) who will assume the Grantee’s obligations to begin and/or complete and/or operate the Project located on the Property, or such other replacement development acceptable to the Grantor, in its sole and absolute discretion. Upon any such resale of the Defaulted Portion of the Property (or any portion thereof), the proceeds to the Grantor from such sale shall be applied as follows:
(1) First, to pay any and all amounts required to
release/reconvey any Lien recorded against all or any portion of the Property; and
(2) Second, to reimburse the Grantor on its own behalf or on behalf of the City for all actual internal and third-party costs and expenses previously or currently incurred by the
Grantor, or the City related to the Property, the Project, or this Agreement, including, but not limited to, customary and reasonable fees or salaries to third-party personnel engaged in such actions, in connection with the recapture,
management and resale of the Property or any part thereof; all taxes, assessments and utility charges paid by the City and/or the Grantor or authority with respect to the Property or portion thereof; any payment made or necessary to be made to discharge or prevent from attaching or being made any subsequent encumbrances or liens due to obligations incurred by the Grantee with respect to the acquisition of the Property or the construction of the Project and amounts otherwise owing to the Grantor or authority by the Grantee or its successors or assigns pursuant to the terms of this Agreement; and
(3) Third, to the extent that any proceeds from such resale are, thereafter, available, taking into account any prior
encumbrances with a claim thereto, to reimburse the
Grantee, or its successors in interest to the equal to the sum of: (1) Purchase Price; and (2) the third-party costs actually 123
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
incurred and paid by the Grantee regarding the development of the Project, including, but not limited to, pro rata costs of carry, taxes, and other items as set forth in a cost certification to be made by the Grantee to the Grantor prior to any such reimbursement, which certification shall be subject to the Grantor’s reasonable approval; provided, however, that the Grantee shall not be entitled to reimbursement for any
expenses to the extent that such expenses relate to any loans, Liens or other encumbrances that are paid by the Grantor pursuant to the provisions of sub-sections (1) or (2) above. (4) Any portion of the proceeds from the resale of the Property remaining after the foregoing applications shall be retained by the Grantor as its sole and exclusive property.

8.6 IMMEDIATELY FOLLOWING THE SIXTY (60) DAY PERIOD
SPECIFIED IN SECTION 8.1, ABOVE, THE GRANTOR, ITS EMPLOYEES AND AGENTS

SHALL HAVE THE RIGHT TO REENTER AND TAKE POSSESSION OF THE PROPERTY

AND ANY IMPROVEMENTS THEREON, WITHOUT FURTHER NOTICE OR COMPENSATION TO THE GRANTEE.

PART THREE
Section 9. Grantee Covenant to Undertake Project. The grant herein is subject to the covenant, on Grantee for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Grantee shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. The Grant is subject to the covenant on Grantee and its successors, and assigns, that the Property shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by the Development Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 9 shall run with the land of the Property until the earlier of the date of recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

Section 10. Covenants Run with the Land of the Property. Each of the covenants and agreements contained in this Grant Deed touch and concern the Property and each of them is expressly declared to be a community development covenant that runs with the land for the benefit of the Grantor or the City of San Bernardino, as the successor public agency to the Grantor, and such covenants run with the land in favor of the Grantor for the entire period that such covenants are in full force and effect, regardless of whether the Grantor is or remains an owner of any land or interest in land to which such covenants relate. The Grantor, in the event of any breach of any such covenants, has the right to exercise all of the rights and remedies, and to maintain any actions at law or suits in equity or other proper proceedings, to enforce the curing of such breach, as provided in the Agreement or by law. The covenants contained in this Grant Deed are for the 124
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
benefit of and are enforceable only by the Grantor or the City of San Bernardino, as the successor public agency to the Grantor, and shall survive the execution and recordation of this Grantor Deed and the issuance and recordation of each and every Certificate of Completion, for the time period set forth above for each covenant, except that covenants in Section 8 and 9 of this Deed expressly terminate on issuance of a Certificate of Completion and those covenants are no longer enforceable thereafter that event.

Section 11. Costs and Attorneys’ Fees for Enforcement Proceeding. If legal proceedings are initiated to enforce the rights, duties or obligations of any of the covenants set forth in this Grant Deed, then the prevailing party in such proceeding shall be entitled to collect its reasonable attorney fees and costs from the other party in addition to any other damages or relief obtained in such proceedings.

Section 12. Effect of Unlawful Provision; Severability. In the event that any provision of this Grant Deed is held to be invalid or unlawful by a final judgment of a court of competent jurisdiction, such invalidity shall not affect the validity of any other provision of this Grant Deed. 125
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E
IN WITNESS WHEREOF, the Grantor has caused this Grant Deed to be executed by its authorized representative(s) on this ____ day of _____________, 2022.

GRANTOR:

THE CITY OF ONTARIO
a California municipal corporation
By: ___________________________
City Manager
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
126
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

EXHIBIT A
TO

GRANT DEED
Property Legal Description
127
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT E

CERTIFICATE OF ACCEPTANCE OF

GRANT DEED
The undersigned hereby acknowledges acceptance by _____________, a California limited liability company, the Grantee in the within Grant Deed, of the delivery of the subject Property described in the within Grant Deed from the City of Ontario.

GRANTEE:

D STREET TOWNHOME
APARTMENTS, LLC, a California
limited liability company
By: ___________________________
Manager
Dated: _____________________
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
128
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F

EXHIBIT F
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Form of Notice of Agreement
[Attached Behind This Page]
129
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

The City of Ontario
303 East B Street
Ontario, California 91764
Attn: City Manager
Exempt from Recording fee
pursuant to Gov’t Code § 27383

NOTICE OF AGREEMENT
2022 Disposition and Development Agreement
(D Street and Laurel Avenue)
TO ALL INTERESTED PERSONS PLEASE TAKE NOTICE that _____________, a California limited liability company (the “Developer”) and the City of Ontario, a California municipal corporation (the “City”) entered into an agreement entitled 2022 Disposition and Development Agreement (D Street and Laurel Avenue), dated as of ______, 2022 (the “Agreement”). A copy of the Agreement is on file with the City and is available for inspection and copying by interested persons as a public record of the City at the City’s offices located at 303 East B Street, Ontario, California 91764, during the City’s regular business hours.

The Agreement affects the real property described in Exhibit A attached to this Notice of Agreement (the “Property”). The meaning of defined terms, indicated by initial capitalization, used in this Notice of Agreement shall be the same as the meaning ascribed to such terms in the Agreement.

PLEASE TAKE FURTHER NOTICE that the Agreement contains certain development covenants running with the land of the Property and other agreements between the Developer and the City affecting the Property, as set forth below (all section references are to the Agreement):

Section 4.1 of the Agreement provides:

4.1 Developer Covenant to Undertake Project. Upon Close of Escrow the Developer covenants, for itself, its successors and assigns, to and for the exclusive benefit of the City, that the Developer shall commence and complete the development of the Project on the Property within the time period for such actions set forth in the Schedule of Performance. Upon Close of escrow, the Developer covenants and agrees for itself, its successors, and assigns, that the Property shall be improved and developed with the Project in substantial conformity with the terms and conditions of this Agreement, the Scope of Development, the Schedule of Performance, any and all plans, specifications and similar development documents required by this Agreement, except for such changes as may be mutually agreed upon in writing by and among the Parties, and all applicable laws, regulations, orders and conditions of each Governmental Agency with jurisdiction over the Property or the Project. The covenants of this Section 4.1 shall run with the land of the 130
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F
Property until the earlier of the date of recordation of the Certificate of Completion or the fifteenth (15th) anniversary of the date of the Close of Escrow.

Section 5.1 of the Agreement provides:

5.1 Covenant to Maintain Property on Tax Rolls. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.1.1 The entire Property shall remain on the County secured real property tax rolls for twenty years from the date of issuance of a certificate of occupancy for the Project. the full term of this Agreement.

5.1.2 The Developer shall pay all property tax bills with respect to the Property and all improvements thereon on or before the last day for the timely payment of each property tax installment during such time period and to timely pay all supplemental tax bills regarding the Property issued by the County, but may make timely payment pursuant to an approved Tax Assessor payment plan. The Developer further covenants and agrees to provide to the City, upon thirty (30) days’ written request by Grantor: (i) a true and correct copy of all property tax assessment notices, property tax bills and property tax assessment correspondence by and between the Developer and the County regarding the Property and all improvements thereon, with respect to the preceding fiscal year of the County, and (ii) cancelled checks issued by the Developer in payment of all property tax payments that are made to the County regarding the Property and all improvements thereon (or other reasonably acceptable evidence of such payment), with respect to the preceding County fiscal year.

Section 5.2 of the Agreement provides:

5.2 No Conveyance to Tax Exempt Entity. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.2.1 The Developer shall not use or otherwise sell, transfer, convey, assign, lease, leaseback or hypothecate the Property, the Project, or any portion of any of the foregoing to any entity or person, or for any use of the Property, the Project, or any portion of any of the foregoing, that is partially or wholly exempt from the payment of real or personal property taxes or that would cause the exemption of the payment of all or any portion of real or personal property taxes otherwise assessable regarding the Property, the Project, or any portion of any of the foregoing, without the prior written consent of the City, which may be withheld in the City’s sole and absolute discretion for a period of 20 years from the date of issuance of the certificate of completion for the Project by the City.

Section 5.3 of the Agreement provides:
131
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F

5.3 Deleted.

Section 5.4 of the Agreement provides:

5.4 Maintenance Condition of the Property. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

5.4.2 Graffiti, as this term is defined in Government Code Section 38772, that has been applied to any exterior surface of a structure or improvement on the Property that is visible from any public right-of-way adjacent or contiguous to the Property, shall be removed by the Developer by either painting over the evidence of such vandalism with a paint that has been colormatched to the surface on which the paint is applied, or graffiti may be removed with solvents, detergents or water, as appropriate. If any such graffiti is not removed within five (5) days following the time of the discovery of the graffiti, the City shall have the right to enter the Property and remove the graffiti, without notice to the Developer. Any sum reasonably expended by the City for the removal of graffiti from the Property pursuant to this Section 5.4.2, shall be a lien on the Property. If the amount of the lien is not paid within thirty (30) days after written demand to the Developer from the City, the City shall have the right to enforce its lien in the manner provided in Section 5.4.3.

5.4.3 The Parties further mutually understand and agree that the rights conferred upon the City under this Section 5.4 expressly include a grant by the Developer of a security interest in the Property with the power to establish and enforce a lien or other encumbrance against the Property or any portion thereof, in the manner provided under Civil Code Sections 2924, 2924b and 2924c, to secure the obligations of the Developer and it successors under Section 5.4.1 or Section 5.4.2, including the reasonable attorneys’ fees and costs of the City associated with the abatement of a Maintenance Deficiency or removal of graffiti. For the purposes of the preceding sentence the words “reasonable attorneys’ fees and costs of the City” mean and include the salaries, benefits and costs of the City Attorney and the lawyers employed in the Office of the City Attorney.

Said security interest will not be enforced without providing Developer an additional notice and thirty (30) days opportunity to pay all costs, interest, and fees due and owing to the City. 132
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F

5.4.4 The provisions of this Section 5.4, shall be a covenant running with the land of the Property, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed and said covenant will continue until a certificate of Completion is recorded at which time the covenant will end. Nothing in the foregoing provisions of this Section 5.4 shall be deemed to preclude the Developer from making any alteration, addition, or other change to any structure or improvement or landscaping on the Property, provided that any such changes comply with applicable zoning and building regulations of the City. The expiration of the Covenant on completion does not restrict City from enforcement of any other laws related to public or private nuisances, graffiti removal, or from issuing notices of violations of any City or state code regarding health and safety, building codes or similar codes Section 5.5 of the Agreement provides:

5.5 Obligation to Refrain from Discrimination. The Developer for itself, its successors and assigns to all or any part or portion of the Property and/or Project, covenants and agrees that:

The covenant of this Section 5.5 shall run with the land of the Property and shall be enforceable against the Developer and its successors and assigns in perpetuity and be a covenant in the Grant Deed and the Notice of Agreement.

5.5.2 The covenant of this Section 5.5 shall run with the land of the Property in perpetuity, shall be enforceable against the Developer and its successors and assigns, and shall be covenants set forth in the Grant Deed.
133
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F
This NOTICE OF AGREEMENT is dated as of _________________, 2022, and has been executed on behalf of the Developer and the City by and through the signatures of their authorized representative(s) set forth below. This Notice of Agreement may be executed in counterparts and when fully executed each counterpart shall be deemed to be one original instrument.

Dated:_________________, 2022
CITY:

THE CITY OF ONTARIO
a California municipal corporation
By: ___________________
City Manager
ATTEST:
____________________________
City Clerk
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP
By: _______________________
City Attorney
Dated:_________________, 2022
DEVELOPER:

D STREET TOWNHOME APARTMENTS,
LLC, a California limited liability Company
By: ___________________
Manager
[ALL SIGNATURES MUST BE NOTARY ACKNOWLEDGED]
134
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT F

EXHIBIT A
TO

NOTICE OF AGREEMENT
Legal Description of Property
135
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT G

EXHIBIT G
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Form of Official Action of Developer

CERTIFICATION OF AUTHORITY
The undersigned members of D STREET TOWNHOME APARTMENTS, LLC, a California limited liability company (the “Company”), do certify that we are all of the voting directors of the Company and that there are no other directors.

We further certify that any one (1) of the following named persons, individually:
[INSERT NAMES]
be, and they are, authorized and empowered for and on behalf of and in the name of the Company to execute and deliver that certain 2022 Disposition and Development Agreement (D Street and Laurel Avenue), dated ______, 2022, between the City of Ontario, a California municipal corporation, (“City”) and the Company (the “Agreement”), to purchase certain real property located in the City of Ontario, California, as specifically described in the Agreement, and all other documents to be executed by the Company in connection with the transactions contemplated in the Agreement, and to take all actions that may be considered necessary to conclude the transactions contemplated in the Agreement and perform the other obligations of the Company pursuant to the Agreement.

The authority conferred shall be considered retroactive, and any and all acts authorized in this document that were performed before the execution of this Certificate are approved and ratified. The authority conferred shall continue in full force and effect until the City of Ontario, a California municipal corporation shall have received notice in writing from the Company of the revocation of this Certificate.

We further certify that the activities covered by the foregoing certifications constitute duly authorized activities of the Company; that these certifications are now in full force and effect; and that there is no provision in any document under which the Company is organized and/or that governs the Company’s continued existence, limiting the power of the undersigned to make the certifications set forth in this certificate, and that such certifications are in conformity with the provisions of all such documents.

Company Members:
136
46700.12001\35016261.6
DRAFT BBK 8-11-22

EXHIBIT H

EXHIBIT H
TO
2022 DISPOSITION AND DEVELOPMENT AGREEMENT
(D Street and Laurel Avenue)
Form of Certificate of Completion
[Attached Behind This Page]
137
46700.12001\35016261.6

EXECUTION VERSION

EXHIBIT H

RECORDING REQUESTED BY
AND WHEN RECORDED RETURN TO:

The City of Ontario
303 East B Street
Ontario, California 91764
Attn: City Manager
Exempt from Recording fee
pursuant to Gov’t Code § 27383
I, Scott Ochoa, City Manager of the City of San Bernardino (the “City”) certify that:

1.1. The Project described as [______________________] required to be constructed in accordance with that certain 2022 Disposition and Development Agreement (D Street and Laurel Avenue), dated _______, 2022 (“DDA”), between the City and D STREET TOWNHOME APARTMENTS, LLC, a California limited liability company (the “Developer”), on that certain real property specifically described in the legal description(s) attached to this Certificate of Completion as Exhibit A (the “Property”), is complete in accordance with the provisions of the Agreement.

This Certificate of Completion constitutes conclusive evidence of the City’s determination of the Developer’s satisfaction of its obligation under the Agreement to construct and install the Project on the Property, including any and all buildings, parking areas, landscaping areas and related improvements necessary to support or meet any requirements applicable to the Project and its use and occupancy on the Project, whether or not such improvements are located on or off the Property or on other property subject to the Agreement. Notwithstanding any provision of this Certificate of Completion, the City may enforce any covenant surviving this Certificate of Completion in accordance with the terms and conditions of the Agreement and the Grant Deed by which the Property was conveyed to the Developer by the City under the Agreement. The Agreement is an official record of the City and a copy of the Agreement may be inspected at the City’s office located at 303 East B Street, Ontario, California 91764, during the City’s regular business hours.

DATED AND ISSUED this _____ day of ______________, _____.

THE CITY OF ONTARIO
a California municipal corporation
By: ___________________________
City Manager
138
46700.12001\35016261.6

EXECUTED AGREEMENT

EXHIBIT H

EXHIBIT A
TO

CERTIFICATE OF COMPLETION
Legal Description of the Property
139
46700.12001\35016261.6

EXECUTED AGREEMENT

EXHIBIT H

STATE OF CALIFORNIA )
ss)
COUNTY OF ________________)
On ________________, before me, , Notary Public,
personally appeared , personally known to me to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.
_____________________________
Notary Public
140
Department: Management Services
Prepared By: Brandi Belmontes
Staff Member Presenting:

Darlene M. Sanchez, Assistant City Manager
Approved By:

ANNUAL BUSINESS MEETING

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council designate Council member Debra Dorst-Porada as the City's voting delegate and Mayor Paul Leon as an alternate for the League of California Cities Annual Business Meeting scheduled for September 9, 2022.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: There is no direct fiscal impact by taking this action; however, representation and participation in the League of California Cities (League) upcoming business meeting will help establish League policy on matters that may affect the City's finances.

BACKGROUND & ANALYSIS: The League has scheduled its Annual Business Meeting for September 9, 2022, during the Annual League Conference in Long Beach, California. At that meeting, the League membership will consider and take action on resolutions that establish Cal Cities policy.

Consistent with Cal Cities bylaws, a city's voting delegate and alternate must be designated by City Council action.
141
Department: Fire Department
Prepared By: Pam Martinez
Staff Member Presenting:

Ray Gayk, Fire Chief
Reviewed By: Jordan T Villwock
Approved By:

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council takes the following actions:

A. Authorize the purchase one Medix Metro Express 153 Type 1 Ambulance from Republic EVS of Santa Fe Springs, California in an amount not to exceed $313,600.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT: If approved, the appropriation will be included in a future quarterly budget update.

BACKGROUND & ANALYSIS: In Spring of 2021, the Fire Department began experiencing significant ambulance delays and challenges with the City's private ambulance provider's ability to meet their contractual response time obligations. This was exacerbated by paramedic staffing shortages, COVID-19 illness, and ambulance patient offload delays at the local hospitals. This issue caused residents to have to wait for ambulance transport, in some cases up to an hour.

In an effort to mitigate delays, and continue to provide excellent service, the Fire Department leased two ambulances from neighboring fire agencies. On October 4, 2021, the Fire Department deployed an Alternate Transport Vehicles (ATV) to provide more efficient hospital transport. The ATV is dispatched on critical calls and to all working structure fires. Additionally, the ATV is authorized to transport critical patients when the private provider ambulance is delayed and the patient requires immediate transport to the hospital. Since October 2021, the Fire Department ATV has transported twenty citizens to the hospital. The lease agreements with these neighboring agencies are approaching termination (or have already terminated), and the purchase of the proposed ambulance will allow for the ATV program to continue.

Future options for the ambulance include activities such as providing surge when call volume 142
increases, community paramedicine, and other mobile integrated health programs. Since January 2021, the Fire Department has been researching the purchase of ambulances due to the age, condition, and agreement restrictions of the two leased ambulances. Due to the nationwide shortage of chassis and Intel chips, it was a challenge to find an ambulance that fit the needs of the Fire Department to purchase. However, in working with Republic EVS, they were able to provide the specifications that are unique to the Ontario Fire Department and provide the vehicle in a timely manner.

To meet the needs of the Ontario Fire Department, and due to nationwide supply chain shortages, Staff is recommending a sole source purchase through Republic EVS in an amount not to exceed $313,600.
143
Department: Police Department
Prepared By: Mary Salem
Staff Member Presenting:

Mike Lorenz, Chief of Police
Reviewed By: Lizceth Zazueta
Approved By:

SECURITY AND THE CALIFORNIA OFFICE OF EMERGENCY SERVICES PROVIDED THROUGH THE FY 2021 URBAN AREA SECURITY INITIATIVE (UASI) GRANT

PROGRAM

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager to execute all documents necessary to accept a three-year sub-grant award in the amount of $600,000 from the U.S.

Department of Homeland Security and the California Office of Emergency Services provided through the FY 2021 UASI Grant Program.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: The City, through the Riverside Urban Area Security Initiative (RUASI) grant, has been awarded $600,000 to implement Facial Recognition Project and associated camera networks at the Ontario International Airport. The associated grant revenue and expenditure adjustments will be presented in the next quarterly budget report to the City Council. The City is not required to provide matching funds for this reimbursable grant.

BACKGROUND & ANALYSIS: The UASI program provides financial assistance to address multidiscipline planning, operations, equipment, training, and exercise needs unique to high-threat, high density urban areas, and to assist them in building and sustaining capabilities to prevent, protect against, respond to, and recover from threats or acts of terrorism and weapons of mass destruction. The intent of the UASI program is to enhance regional preparedness and expand collaboration efforts.

The RUASI includes the cities of Riverside, San Bernardino and Ontario, and the counties of Riverside and San Bernardino. Projects are recommended for consideration by the RUASI Steering Group and local Approval Authority which are comprised of staff from the three cities and two counties. Recommendations are made based upon the ability to match project benefits the UASI program guidelines, which include a focus on regional coordination and collaboration. The 144
Riverside Regional UASI’s recommended projects are then subject to review and approval at the State and Federal levels. The City of Ontario, as a sub-recipient of the FY 2021 RUASI Grant, has been approved to receive $600,000 for the acquisition of a Facial Recognition Project for the purchase of recognition software and cameras.

The City is not obligated to continue with these grant programs beyond the equipment’s operational life. Upon termination of the programs, Staff will work with the City of Riverside Office of Emergency Services (the designated Riverside Regional UASI Administrative Entity) and the Department of Homeland Security to properly demobilize and surplus the equipment. 145
Department: Police Department
Prepared By: Mary Salem
Staff Member Presenting:

Mike Lorenz, Chief of Police
Reviewed By: Lizceth Zazueta
Approved By:

DISTRICT FOR SCHOOL OFFICERS

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager to execute a one-year Cost Sharing Agreement (on file in the Records Management Department) with the Chaffey Joint Union High School District for three school resource officers in the amount of $255,000.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Pursue City's Goals and Objectives by Working with Other Governmental Agencies FISCAL IMPACT: The Police Department has assigned one School Resource Officer (SRO) at Chaffey High School, Colony High School, and Ontario High School. Chaffey Joint Union High School District (CJUHSD) has agreed to reimburse the City $255,000 for the school year, consistent with the terms and conditions of the Agreement. The amount covers approximately 50% of the annual cost of three officers for the period of August 2022-May 2023. The General Fund includes appropriations for these costs in the Fiscal Year (FY) 2022-23 Adopted Budget.

BACKGROUND & ANALYSIS: The role an SRO serves at the various high schools has multiple benefits. In addition to providing a police presence at each high school, SRO's serve as positive role models for students, they foster student, faculty, staff and law enforcement interaction, and provide on-site crisis intervention. CJUHSD had agreed to enter into a one-year Cost Sharing Agreement in the amount of $255,000. Under this Agreement, the Ontario Police Department will provide SRO services at Chaffey, Colony, and Ontario High Schools to help maintain a safe and secure environment on these campuses.
146
Department: Recreation & Community Services
Prepared By: Nick S Gonzalez
Staff Member Presenting:

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

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve a funding Agreement for Measure I funds with Omnitrans for Fiscal Years 2022-23 and 2023-24 in the amount of $675,582.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: The City of Ontario has been awarded a total of $675,582 from Omnitrans through Measure I funding. The funding will be provided over Fiscal Year (FY) 2022-23 and 2023-24. Upon approval, appropriations of $427,791 will be added to the FY 2022-23 Budget under General Fund Grants during the next Quarterly Budget Update. The remaining $247,791 will be added to the FY 2023-24 budget during the FY Budget Adoption. A General Fund cash match of $53,396 is required by this Agreement and will be absorbed into the FY 2022-23 Adopted Budget.

BACKGROUND & ANALYSIS: The Ontario Silver S.T.A.R.S. (Senior Transportation and Recreation Shuttle) program is an appointment-based service that provides curb-to-curb transportation service. The purpose of the program is to provide transportation services for non-emergency medical needs such as doctor, dentist, dialysis, therapy, and other medical appointments.

Additionally, appointments can be made to schedule trips to and from the Ontario Senior Center.

Currently, this service is provided by the West End YMCA. West End YMCA has been a long-standing partner with the City of Ontario over the years, but have indicated their desire to withdraw from the provision of transportation services for the City of Ontario.

To ensure there is no disruption in services, the City of Ontario's Recreation & Community Services Department will operate this program with the support of Measure I funding from Omnitrans.

Omnitrans has the ability to provide Measure I funds to agencies for projects that improve mobility for persons with disabilities, senior citizens, and persons of low income. At this time, Omnitrans is the only other source of public transportation within the city limits. 147
The Ontario Silver S.T.A.R.S. program operates five (5) days per week (Monday - Friday). The program generally operates between 7:30 AM and 4:30 PM, depending on the last participant to call and arrange their return trip on a given day. If approved, this program will expand the existing program by adding a second vehicle/route which is necessary to meet increased demand for this service, which has occurred over recent years. This funding provides the opportunity for the City of Ontario to hire two full-time drivers and purchase two vans, which doubles the capacity for the program. One van will be equipped with a wheelchair lift. The expanded program will also allow for transportation services to seniors residing in the Ontario Ranch area, providing transportation to both medical appointments and the Ontario Senior Center. 148
Department: Communications and Community
Relations
Prepared By: Tricia Almiron
Staff Member Presenting:

Dan Bell, Communications and Community
Relations Director
Approved By:

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council receive and file this report on State and Federal activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS:

State Legislative Update
On June 29, 2022, California adopted a final $308 billion budget, the largest in state history. This came after the Governor negotiated several outstanding issues with the legislature and signed numerous budget-related bills that make up the Fiscal Year 2022-2023 State Budget. The Budget includes a $9.5 billion tax rebate program, $53.9 billion climate commitment and a $14.8 billion transportation infrastructure investment package, including funding for rail and transit projects, climate adaptation projects, active transportation projects, high-speed rail, and ports.

The Legislature reconvened from Summer Recess on August 1, 2022. Bills that have a fiscal impact will be considered in the Senate and Assembly Committees on Appropriations. August 31, 2022, marks the last day for each house to pass any remaining legislation. Staff expects that additional Budget Trailer bills will be introduced after the Summer. The Budget bills allocate funding, and the Trailer bills dictate policy related to funding. There is likely to be additional clean-up trailer bills this month. The City of Ontario received $4.5 million for safety improvements for parks, roads, and 149
youth services.

Federal Legislative Update
July 2022 was an extremely active month in Washington, DC as Congress worked to push through several key legislative items before the August recess. Progress was made on numerous policy fronts, including budget reconciliation, FY23 appropriations, and environmental resilience.

Staff worked diligently with the City's federal advocates on the Appropriations process. From the handful of projects submitted, one was selected for Active Seniors on the Go, and should be included in the final Appropriations agreement, if an agreement is reached this year.

As of the end of July the U.S. House of Representatives and U.S. Senate have each passed their respective Water Resource Development Acts (WRDA). Committees have already begun preconference negotiations for the biennial bill with a formal conference beginning in the fall. The bipartisan bill will likely be on the agenda for final passage in the lame duck session following the November election. Ontario stands to receive a $40.7 million authorization for various water projects. This provision, passed as part of the House bill has the support of the City's Delegation.

Staff will continue to advocate for its inclusion in the final bill.

The House and Senate have adjourned for summer recess and both chambers are set to return on September 6, 2022.
150
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting:

Colin Fernandes, Executive Director Information
Technology
Approved By:

PEOPLESOFT LICENSING INCREASE AND ONE-YEAR ANNUAL SUPPORT RENEWAL

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager to execute an Amendment to the existing Master Agreement (on-file in the Records Management Department) with Oracle America, Inc. of Redwood Shores, California, to amend Peoplesoft incremental licensing fees (ILF) and renew the annual support with Oracle America, Inc through May 2023 for a total not-to-exceed of $273,097.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT: The Amendment to the existing Master Agreement will align the Oracle licensing cost to $175,559 and renew the technical support services to $97,538 through May 2023 for a total not-to-exceed Amendment amount of $273,097. These amounts will be funded through the Information Technology Fund. The Fiscal Year (FY) 2022-23 Adopted Budget includes appropriations for the technical support services renewal. If approved, appropriations for the licensing alignment will be added to the FY 2022-23 1st Quarter Budget.

BACKGROUND & ANALYSIS: On May 1, 2001, the City Manager authorized a Software License Agreement with Oracle America, Inc for the Peoplesoft Financials Software Suite. The software license fees are based on the City's annual operating budget and increase incrementally as the budget increases. The City completed the implementation of Workday Financials in July 2022, and used Peoplesoft through the end of the Fiscal Year 2021-22, which ended June 30, 2022. The City will complete the Fiscal Year 2021-22 Annual Comprehensive Financial Reporting (ACFR), the Annual Single Audit Report, and the State Controller Report, as well as other year-end financial reporting requirements in Peoplesoft by March 31, 2023, which requires the City to maintain the Oracle Peoplesoft license until these actions are complete. Staff requests authorization to extend the Oracle Agreement through May 31, 2023.
151
Department: Municipal Services
Prepared By: Adrian Escamilla
Staff Member Presenting:

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

OFFICE IMPROVEMENTS PROJECT

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager or his designee to execute Construction Contract No. D&C21-004 with New Millennium Construction Services, Inc., of Chino Hills, California, for the City Hall First Floor Office Improvements Project for the construction of three new enclosed offices in the contract amount of $116,000;
B. Authorize a 10% contingency of $11,600 to address any unforeseen issues that may arise during construction; and
C. Authorize the City Manager or his designee to execute all documents required for the completion of the project including, but not limited to, contracts, agreements, assessments, easements, reduction of retention accounts, and filing a notice of completion at the conclusion of all construction related activities.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT: The construction cost for the City Hall First Floor Office Improvements Project is $116,000, plus 10% contingency of $11,600, for a total not to exceed of $127,600. The Fiscal Year 2022-23 Adopted Budget includes appropriations of $127,600 in the Capital Projects Fund.

BACKGROUND & ANALYSIS: The City Hall First Floor Office Improvements Project includes constructing three enclosed offices from existing spaces. This work will include framing/drywall, electrical, HVAC, acoustical ceiling, and flooring.

On May 13, 2022, Staff solicited bids for the City Hall First Floor Office Improvements Project. On June 3, 2022, Staff received four (4) construction bids ranging from $111,508 and $147,550 for the project. All the bids received are listed below:
152
Vendor Location Amount
New Dimension General Construction, Inc. Anaheim, California $111,508 New Millennium Construction Services, Inc. Chino Hills, California $116,000 TMR General Engineering, Inc. San Juan Capistrano, California $143,500 LM Rasmussen Construction Alpine, California $147,550
After review of all bids, it was determined that New Millennium Construction Services, Inc. submitted the lowest responsible bid since New Dimension General Construction, Inc failed to submit the hard copy bid bond prior to the bid close date. Based on credentials, pricing, and favorable reference checks, Staff recommends awarding Construction Contract No. D&C21-004 for the City Hall First Floor Office Improvements Project to New Millennium Construction Services, Inc. 153
Department: Development Administration
Prepared By: Derrick E Womble
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 15
SUBJECT: A DEVELOPMENT IMPACT FEE CREDIT AGREEMENT (FILE NO. PDIF21-003) BETWEEN THE CITY OF ONTARIO AND KL LHB DSD AIV LLC., FOR FACILITY CONSTRUCTION ASSOCIATED WITH TRACT MAP 20399 (FILE NO. PMTT21-007), AT

THE SOUTHEAST CORNER OF ARCHIBALD AVENUE AND ONTARIO RANCH ROAD,

WITHIN THE GRAND PARK SPECIFIC PLAN

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve the Development Impact Fee Credit Agreement (File No. PDIF21-003) between the City of Ontario and KL LHB DSD AIV LLC, for facility construction associated with Tract Map 20399 (File No. PMTT21-007), located at the southeast corner of Archibald Avenue and Ontario Ranch Road within the Grand Park Specific Plan, and authorize the City Manager to execute the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: Approval of the proposed Development Impact Fee (“DIF”) Credit Agreement (File No. PDIF21-003) will result in no fiscal impact to the City’s General Fund. The project’s Development Agreement (File No. PDA17-001) and related Conditions of Approval (COA) for Tract Map 20399 (File No. PMTT21-007) require KL LHB DSD AIV LLC (“Developer”) to construct DIF Program infrastructure with an estimated cost of $2,868,256. The proposed DIF Credit Agreement defines the amount of DIF Credit that the Developer may be eligible to receive for construction of these improvements.

The DIF Credit that the Developer will receive upon completion of the improvements may be exchanged for a refund of DIF that was paid by the Developer (up to the Developer’s maximum DIF obligation) in the respective DIF category.

BACKGROUND & ANALYSIS: On December 5, 2017, the City Council adopted Ordinance No. 3086, approving a Development Agreement to establish the terms and conditions for the 154
development. On August 24, 2021, the Planning Commission adopted Resolution No. PC21-059, approving Tract Map 20399 to subdivide 24.51 acres of land into 30 numbered lots and 6 lettered lots.

Per the Development Agreement and COA, the Developer is required to construct DIF Program infrastructure to serve Tract Map 20399, which includes the construction and installation of storm drain, street improvements, traffic signals, and fiber optic facilities generally located along Ontario Ranch Road, Archibald Avenue, and Grand Park Street, within the Grand Park Specific Plan development area.

Pursuant to the City’s adopted DIF Credit policies, construction of DIF Program facilities requires the Developer and the City to enter into a DIF Credit Agreement (“Agreement”). The terms of the proposed Agreement specify the defined portion of the infrastructure to be constructed by the Developer in the Local Adjacent or Regional DIF categories and includes an estimate of the maximum DIF Credit (not reimbursement) that may be applied in the respective Local Adjacent or Regional DIF category. This infrastructure is within Ontario Ranch Local Adjacent Storm Drain, Streets, and Fiber Optic System categories. Since the maximum eligible costs in the Agreement for the required infrastructure exceeds the Developer’s DIF obligation, the Developer is eligible to receive DIF Credit under the proposed Agreement.

The proposed Agreement complies with the City’s DIF policies and is in conformance with the approved Development Agreement and related conditions. Under the provisions of the City’s DIF Program, the City Manager is authorized to execute such agreements upon approval by the City Council.
155
Department: Integrated Waste
Prepared By: Blaine M Ishii
Staff Member Presenting:

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

MAINTENANCE OF COMMERCIAL BIN CONTAINERS WITH CMAX COMMERCIAL MAINTENANCE, INC.

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager or his designee to execute Amendment No. 2 (on file with the Records Management Department) to the Maintenance Services Agreement with CMAX Commercial Maintenance, Inc. of Ontario, California, in the amount of $70,000, increasing the not-to-exceed amount to $165,000 and extending the term of the Agreement to June 30, 2023, for the maintenance of commercial bin containers.

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: The Fiscal Year 2022-23 Adopted Budget includes appropriations of $70,000 in the Integrated Waste Fund for the maintenance of commercial bin containers. Actual expenditures will be based on the fixed-unit pricing and the actual quantity of bin containers maintained in order to meet operational needs. The recommended amendment extends the term of the Agreement to June 30, 2023 and increases the authorized contract amount by $70,000, for a new total not-toexceed contract amount of $165,000.

BACKGROUND & ANALYSIS: The Integrated Waste Department currently has commercial bin containers of various sizes for refuse, recycling, and green waste recycling. On August 15, 2020, the City entered into a one-year Maintenance Services Agreement with CMAX Commercial Maintenance, Inc. to provide these services. At times, these containers require renovation and/or cleaning. Since then, CMAX Commercial Maintenance, Inc. met the expectations of the Integrated Waste Department and the Agreement term was extended for one year through June 30, 2022. Due to the growth of the Ontario Ranch, additional commercial bin container maintenance is needed.

Staff recommends increasing the total authorized amount by $70,000 for Fiscal Year 2022-23 to ensure the Integrated Waste Department can continue to maintain commercial bin containers in a timely manner and keep them clean and operational so they can provide services to the City of Ontario customers.
156
Department: Community Life & Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

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

INTEGRATED LIBRARY SYSTEM

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or designee to execute Amendment No. 1 (on file with the Records Management Department) with Innovative Interfaces Incorporated, of Emeryville, California. This Amendment removes the cloud hosting and related fees and extends the term of the Agreement through July 2026, for a revised total not-toexceed amount of $223,234.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: Amendment No. 1 changes the existing Agreement to a not-to exceed amount of $223,234 paid over a five (5) year term. Appropriations for year one, $42,230 are included within the Information Technology Fund in the Fiscal Year 2022-23 Adopted Budget. Funding for the remaining years will be secured as part of the annual budget process.

BACKGROUND & ANALYSIS: On November 16, 2021, the City Council approved an Agreement with Innovative Interfaces Incorporated for the use of their integrated library system (ILS). During the implementation, Staff from the Information Technology Agency identified concerns with the manner of how Staff would access the cloud-based system and established a solution with the vendor that includes hosting the software on-site. This change resulted in a reduced annual cost and the extension of the Agreement from three to five years.

Ontario City Library uses an integrated library system (ILS) to conduct library business. The ILS is an online searchable database of all library materials, as well as an online database of all library patron accounts. The ILS allows Library Staff and patrons to search for books, check them out, return them, and calculate any fees or fines associated with them. City Council’s approval is requested to approve and additional $5,545 over the initial Agreement amount, and add an 157
additional two-years to the Agreement.
158
Department: Engineering
Prepared By: Miguel Sotomayor
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Raymond Lee, Khoi Do
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 18
SUBJECT: A RESOLUTION APPROVING AN IMPROVEMENT AGREEMENT, IMPROVEMENT SECURITY AND FINAL TRACT MAP NO. 20157, LOCATED ON THE EAST SIDE OF MILL CREEK AVENUE, APPROXIMATELY 530 FEET NORTH OF EUCALYPTUS AVENUE

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution approving an Improvement Agreement, Improvement Security and Final Tract Map No. 20157, located on the east side of Mill Creek Avenue, approximately 530 feet north of Eucalyptus Avenue, within the Esperanza Specific Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: There is not a direct fiscal impact associated with this action. All public infrastructure improvements required for this subdivision will be constructed by the Developer at its sole cost.

BACKGROUND & ANALYSIS: Final Tract Map No. 20157, consisting of six numbered lots and seven lettered lots on approximately 82 acres of land, as shown on Exhibit A, has been submitted by the Developer, KB Home Coastal, Inc., a California Corporation. The Tentative Parcel Map was approved by the Planning Commission on August 27, 2019.

Improvements will include streets, storm drain, domestic water main, recycled water, sewer, fiber optic conduits, street lights, neighborhood edge and parkway landscaping with irrigation.

Improvements in the parkway will be consistent with current City approved drought measures. 159
The Developer has entered into an Improvement Agreement with the City for Final Tract Map No. 20157 and has posted adequate security to ensure construction of the required improvements.

This map meets all conditions of the Subdivision Map Act and the Ontario Municipal Code and has been reviewed and approved by the City Engineer.
160
161
RESOLUTION NO. ______

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FINAL TRACT MAP NO. 20157 LOCATED ON THE EAST SIDE OF MILL CREEK AVENUE APPROXIMATELY 530 FEET NORTH OF EUCALYPTUS AVENUE.

WHERAS, Tentative Tract Map No. 20157 submitted for approval by KB Home Coastal, Inc., a California Corporation was approved by the Planning Commission of the City of Ontario on August 27, 2019; and
WHEREAS, Tentative Tract Map No. 20157 consists of 6 numbered lots and 7 lettered lots being a subdivision of a portion of the northwest quarter of the southeast quarter section 13, Township 2 south, Range 7 west, San Bernardino Meridian. Together with portions of government lots 2 and 3 in said section 13 according to Official Plat; and WHEREAS, to meet the requirements established as prerequisite to final approval of Tract Map No. 20157, KB Home Coastal, Inc., a California Corporation has offered the Improvement Agreement together with good and sufficient improvement security, in conformance with the City Attorney’s approved format, for approval and execution by the City; and
NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of Ontario, California, as follows:

1. That said Improvement Agreement be, and the same is, approved and the City Manager is authorized to execute same on behalf of said City, and the City Clerk is authorized to attest thereto; and

2. That said Improvement Security is accepted as good and sufficient, subject to approval as to form and content thereof by the City Attorney; and

3. That Final Tract Map No. 20157 be approved and that the City Clerk be authorized to execute the statement thereon on behalf of said City.

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

PASSED, APPROVED, AND ADOPTED this 16th day of August 2022. _____________________________________
PAUL S. LEON, MAYOR
162
ATTEST:
________________________________

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

BEST, BEST & KREIGER, LLP

CITY ATTORNEY
163

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
164
Department: Community Life & Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

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

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the City Manager or designee to execute grant documents and accept a $375,999 AmeriCorps Competitive Continuation Grant for October 2022 through September 2023 to fund the Ontario Promise Corps Project.

B. Authorize the City Manager or designee to accept $56,001 of funding provided by the American Rescue Plan Act for the 2022-23 AmeriCorps Competitive Continuation Grant.

C. Authorize the City to cash match an in-kind commitment of $390,374.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: The cost for the Ontario Promise Corps 2022-23 program is $822,374 of which $390,374 is funded through the General Fund as a cash match in-kind commitment, and $432,000 is reimbursed through other sources. The Fiscal Year (FY) 2022-23 adopted budget includes appropriations in the amount of $99,881 for in-kind services. If approved, the additional $722,493 will be added to the FY 2022-23 Budget in General Fund Grants. The reimbursable sources consist of the Competitive Continuation Grant award of $375,999 from AmeriCorps and $56,001 from AmeriCorps through funding provided by the American Rescue Plan Act (ARPA). In addition, financial support of up to $91,111 is from program partners at Ontario-Montclair Schools Foundation and the Hope Through Housing Foundation that will offset the cash match.

BACKGROUND & ANALYSIS: On August 20, 2019, the City Council approved a twelve-month AmeriCorps State Planning Grant for the City of Ontario to develop a cradle-to-career collective impact program called Ontario Promise Corps. The program implements services that aim to improve school readiness, improve school attendance, and increase college access and success in the local community. The Planning Grant outlined activities that focus on AmeriCorps’ national 165
service focus area of education. These activities provide services that contribute to improving educational outcomes for economically disadvantaged children and youth. The Ontario Promise Corps program aims to recruit the equivalent to twenty (20) Full-Time AmeriCorps members per program year. The members assist in the operation of a one-on-one education program for lowincome and at-risk students, foster mentor-mentee relationships with participants and provide access to information and resources for higher education attainment to residents in the City of Ontario. The program provides these services through partnerships with Hope Through Housing Foundation, Ontario-Montclair Schools Foundation, Ontario City Library, and City of Ontario Recreation & Community Services. The AmeriCorps grant is administered on the state level by California Volunteers, an office of the State of California.

In 2020, the City of Ontario was awarded an AmeriCorps State Formula Grant to implement the strategies developed during the Planning Grant phase and were awarded AmeriCorps grants for Fiscal Years 2021 and 2022.

This year, the Community Life & Culture Agency has been awarded $432,000 to continue the Ontario Promise Corps program, which includes $56,001 of ARPA funds. After the allocation of administrative fees paid to the granting agency, the City will receive a total of $424,484.

Furthermore, as a requirement of the grant, the City is responsible for a cash match of $390,374, which includes $99,881 of in-kind services, and up to $91,111 to be reimbursed by program partners. The program partner reimbursement amount is based upon the number of members that are recruited and assigned to the partner sites. Highlights of the grant budget include: a fulltime Administrative Specialist position that is 100% responsible for the day-to-day operations of the grant at a total annual cost of $96,414, twenty (20) AmeriCorps Members that will each receive a state-mandated living allowance set at $21,600 plus health care, miscellaneous office supplies, trainings, and equipment costs. This one-year grant supports AmeriCorps member service activities occurring from October 2022 through September 2023. A new application will be submitted in 2023 for funding beyond this one-year grant period.

The Community Life & Culture Agency requests that the Ontario City Council approve the execution of the 2022-2023 grant documents inclusive of the awarded ARPA funds, and City cash match for the 2022-2023 Ontario Promise Corps program year.
166
Department: Utilities
Prepared By: Thomas Lambertson
Staff Member Presenting:

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

RANCH RESIDENTIAL WATER DEMAND FACTORS PROJECT

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or his designee to execute a Professional Services Agreement (on file in the Records Management Department) with A&N Technical Services, Inc. of Encinitas, California, for the 2022 Update to Ontario Ranch Residential Water Demand Factors project for a not-to-exceed amount of $114,475 and from a term of August 19, 2022 to April 28, 2023.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget for the Capital Improvement Program includes appropriations from the Water Capital Fund for this project. The recommended Agreement is for a not-to-exceed amount of $114, 475. There is no impact to the General Fund.

BACKGROUND & ANALYSIS: The City’s water system currently produces approximately 33,000 acre-feet of potable water per year. Water demand factors (WDFs) are used to estimate future water demand projections throughout the City and are used in the Water Master Plan for evaluating current and future water supply, storage, transmission, and distribution infrastructure sizing.

Since the residential water use category is expected to have the largest growth due to future residential development remaining in Ontario Ranch, the scope of this project will specifically review residential water use in Ontario Ranch and update the WDFs for respective land use categories/housing types. Residential development in Ontario Ranch consists of higher density housing units with small yards, while other factors influencing water use include conservation efforts, changing cultural habits, and recycled water use. The project will include a statistical analysis and summary of available water use data to develop updated WDFs for planning purposes 167
and a comparative analysis of WDFs within other comparable water agencies.

On April 21, 2022, the City received the following four (4) qualified proposals through the City’s electronic bid management system in response to the Request for Proposal No. 1519.

Proposer Location
A&N Technical Services, Inc. Encinitas, CA
Dudek Encinitas, CA
Stantec Consulting Services, Inc. Pasadena, CA
Stetson Engineers, Inc. Covina, CA
A review team consisting of City staff reviewed the proposals and made their recommendations based upon qualifications, understanding of the City’s needs, history of completing similar projects, and other criteria specified in the RFP. After careful evaluation, A&N Technical Services Inc., of Encinitas, California, was selected as best overall qualified respondent. 168
Department: Community Life & Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

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

SERVICES AND GRAPHIC DESIGN SERVICES RELATED TO THE ONTARIO LIVING

MAGAZINE

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Approve and authorize the City Manager or designee to execute an Amendment with Eclipse Printing & Graphics LLC, DBA James Litho, of Ontario, California, in the amount of $122,441.

B. Approve and authorize the City Manager or designee to execute an Amendment with Public Advertising Agency Inc., of Murrieta, California, in the amount of $30,006.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: The proposed Amendment No 1 to the printing services Agreement with James Litho extends the existing term through December 31, 2022 through the Winter 2022 issue of Ontario Living Magazine, and a not-to-exceed of $122,441. Of the total Amendment amount, $39,805 is for services rendered during the 2021-22 Fiscal Year which exceeded the purchase order (PO) amount. The overage amount was due to the cost per issue increasing over the years from the growing number of residential and business units that receive the printed magazine, along with the rising costs of paper due to the COVID-19 pandemic.

The proposed Amendment No. 2 to the graphic design services Agreement with Public Advertising Agency also extends the existing term through the Winter 2022 issue until December 31, 2022. The not to exceed amount for the Amendment is $30,006. Of the total Amendment amount, $15,003 is for services rendered during the 2021-22 Fiscal Year which exceeded the PO amount. The overage was due to changes in design needs for the magazine during the 2021-22 Fiscal Year.

The Community Life & Culture Adopted Fiscal Year 2022-23 Budget includes appropriations for 169
printing services and graphic design services related to Ontario Living Magazine and will pay for both the balance from the previous POs and the funds for both Amendments. No additional funding is being requested at this time.

BACKGROUND & ANALYSIS: On August 20, 2019, the City Council approved Agreements with Eclipse Printing & Graphics dba James Litho and Public Advertising for printing services and graphic design services related to the Ontario Living Magazine. The magazine is a quarterly publication providing residents and businesses within Ontario with a comprehensive listing of all programs, classes, services and events offered by the Community Life & Culture Agency, (i.e., Recreation & Community Services, Ontario City Library, and Ontario Museum of History & Art), as well as City news, class registration information, City contact information, and other information on City departments and services. The City of Ontario prides itself in producing a comprehensive publication that provides a modern design and high-quality printing.

The existing Agreements expire with the publication of the Fall 2022 issue. These Amendments will extend the Agreements to the Winter 2022 issue, allowing appropriate time to complete the competitive bid processes as required and enter into a new Agreement with vendors to design and publish future issues of the publication.
170
Department: Utilities
Prepared By: Andy Marquez
Staff Member Presenting:

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

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the purchase of miscellaneous waterworks materials in the amount of $265,000 with United Water Works Inc. of Santa Ana, California; and $265,000 with Western Water Works Supply Co., of Chino Hills, California, for a total aggregate not-to-exceed amount for $530,000, at the set pricing levels per Bid No. 1537.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget includes appropriations in the Water Operating Fund to cover the estimated annual cost of parts and supplies required for water system maintenance and repairs. Actual expenses will be based on parts ordered and material billing rates in the bid pricing. There is no impact to the General Fund.

BACKGROUND & ANALYSIS: The City’s water distribution system contains over 600 miles of pipelines and appurtenances that the City maintains. This action will provide the materials for planned maintenance and emergency repairs due to sudden and unexpected system failures. The bid establishes pricing for specific parts and supplies needed for maintenance and repair of the water system.

In June 2022, the City solicited bids based on estimated annual quantities of the most common parts and materials used. On June 29, 2022, three bids were received through the City's electronic bid management system in response to Bid No. 1537.

Companies that submitted bids are as follows:
171
Vendor Name Location Amount
United Water Works Inc. Santa Ana $694,544.32
Western Water Works Supply Co. Chino Hills $817,510.66
Core & Main Perris $863,365.05
Staff reviewed the bids for responsiveness and pricing criteria. Based on the proposed unit pricing and estimated quantities, Staff recommends awarding the bid to United Water Works Inc., and Western Water Works Supply Co. By awarding these two suppliers, the City can obtain lower per unit pricing and better ensure the availability of items for emergency repairs to the City's water system.
172
Department: Utilities
Prepared By: Thomas Palmieri
Staff Member Presenting:

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

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or his designee to execute a Professional Design Services Agreement (on file in the Records Management Department) with Albert A. Webb Associates Inc., of Riverside, California, for Well No. 53 in the notto-exceed amount of $566,006 and from a term of August 16, 2022 to August 16, 2025.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Invest in the Growth and Evolution of the City's Economy Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget for Capital Improvement Program includes appropriations in the amount of $566,006 from the Water Capital Fund for design services for Well No. 53. There is no impact to the General Fund.

BACKGROUND & ANALYSIS: The City currently has seventeen (17) active groundwater wells. The Water Master Plan identifies the need for additional groundwater wells to expand existing water supply capacity and reliability to meet the future water demands of Ontario. Proposed Well No. 53 will be located on the southwest side of Doubleday Avenue, approximately 950 feet west of Dupont Avenue, on property currently owned by the Ontario International Airport Authority (OIAA) (See Figure 1). Pursuant to a separate agreement with the OIAA, the City can construct up to 4 wells on the eastern side of the airport. Well No. 43 is currently under construction and is the first well under the OIAA agreement with Well No. 53 being the second.

The project’s design will consist of two primary phases, drilling design and equipping design. The drilling design scope of work will include a preliminary design report (PDR) for the drilling of Well No. 53, which will include data collection, site evaluation, hydrological study, initial study of environmental impact, habitat suitability assessment, design survey for the project and geotechnical investigation. Once the PDR is approved, Consultant will proceed to complete a full set 173
of construction plans and specifications to drill and install the anticipated 750-1,000 foot deep well.

Once the well drilling construction phase has been completed, Consultant will proceed to the design phase of equipping Well No. 53. The design will consist of an aboveground masonry building, on-site sodium hypochlorite generation system, mechanical piping, electrical, HVAC, instrumentation, and landscaping. Consultant will prepare a complete plans and specifications construction package, including project construction schedule and estimated construction cost.

On May 19, 2022, five (5) proposals were received for Bid No. 1531, Well No. 53:

Bidder Locations
Albert A. Webb Associates Riverside, CA
AKM Consulting Engineers Irvine, CA
Ardurra Group, Inc. Newport Beach, CA
Dudek Encinitas, CA
Kleinfelder Ontario, CA
Using a qualification-based selection process, City Staff reviewed the proposals and recommends Albert A. Webb Associates based on their expertise, understanding of the City’s needs, and history of completing similar projects.
174
175
Department: Municipal Services
Prepared By: Manuel Rebolledo
Staff Member Presenting:

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

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council take the following actions:

A. Authorize the cooperative purchase and delivery of five Ford Escape vehicles in the amount of $153,500, one for the Facilities Maintenance Department, one for the Community Improvement Department, one for the Engineering Department, one for the Police Department, and one for the Utilities Department, and three Chevrolet Police Tahoe’s in the amount of $140,227 for the Police Department from National Auto Fleet Group of Watsonville, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 091521-NAF;
B. Authorize the cooperative purchase and delivery of one Freightliner Hydro Excavator truck in the amount of $676,611 for the Utilities Department from GapVax of Johnstown, Pennsylvania, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 101221-GPV;
C. Authorize the cooperative purchase and delivery of six CNG Autocar Refuse Front Loading trucks in the amount of $2,355,960, five CNG Autocar Refuse Automated Side Loading trucks in the amount of $1,935,000, and one CNG Roll Off Refuse truck in the amount of $315,650 for the Integrated Waste Department from Velocity Truck Centers of Whittier, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 060920- ATC; and
D. Authorize the cooperative purchase and delivery of two CNG Freightliner Dump trucks in the amount of $472,894 for the Parks and Maintenance Department, one Ford F650 Stakebed truck in the amount of $166,184 for the Integrated Waste Department, and one Ford F450 Service Body truck in the amount of $153,908 for the Utilities Department from PB Loader Corporation of Fresno, California, consistent with the terms and conditions of the Sourcewell Cooperative Contract No. 080521-PBL.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
176
FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget includes appropriations of $4,714,934 in the Equipment Services Fund for the purchase of replacement vehicles, $400,000 in the Integrated Waste Fund for one additional vehicle, $315,000 in the Integrated Waste Impact Fund for one additional vehicle, $40,000 in the Facility Maintenance Fund for one additional vehicle, and $900,000 in the Water Operating Fund for three additional vehicles. The total cost of the vehicles recommended for purchase is $6,369,934.

BACKGROUND & ANALYSIS: The vehicles being recommended for replacement have outlived their useful life and it is no longer cost effective to maintain them. The vehicles are scheduled for replacement pursuant to ongoing efforts to reduce expenses, maximize useful life expectancy and extend replacement cycles of fleet equipment, while ensuring safe and reliable operations. This procurement action will result in the replaced vehicles being available to surplus, with any auction sale proceeds returning to the Equipment Service Fund.

The two vehicle additions requested by the Integrated Waste Department, one vehicle addition requested by the Facilities Maintenance Department, and three vehicle additions requested by the Utilities Department are a result of growth throughout the City.

In general conformation with the provisions of Government Code Section 54201 through 54204, Ontario Municipal Code Section 2-6.29 allows for the purchase of supplies and equipment through cooperative purchasing programs, pursuant to California Government Code Section 6502 and City of Ontario Resolution No. 91-141. Cooperative purchasing allows the City to pool its procurement power with other public agencies to obtain lower pricing than otherwise might be possible.

QUANTITY
5 TYPE
Ford Escape

DEPARTMENT

FAC, CI, ENG, PD & PU
PRICE
$153,500
3 Chevrolet Police Tahoe PD $140,227
1 Freightliner Hydro Excavator Truck PU $676,611
6 Autocar Refuse Front Loading Truck IW $2,355,960
5 Autocar Refuse Automated Truck IW $1,935,000
1 Autocar Refuse Roll Off Truck IW $315,650
2 Freightliner Dump Truck PKS/MT $472,894
1 Ford F650 Stakebed PKS/MT $166,184
1 Ford F450 Service Body Truck PU $153,908
25 TOTAL $6,369,934
177
Department: Information Technology
Prepared By: Samantha Robles
Staff Member Presenting:

Colin Fernandes, Executive Director Information
Technology
Approved By:

APPLICATION DEVELOPMENT AND DATABASE ADMINISTRATION

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize the City Manager to execute a three-year Professional Services Agreement (on file with the Records Management Department) with ICS Software, LLC, of Claremont, California, for information technology consulting services, in an amount not to exceed $150,000 annually, for a total not to exceed $450,000.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT: The Fiscal Year 2022-23 Adopted Budget includes appropriations from the Information Technology Fund for Information Technology Agency consulting services.

The proposed Professional Services Agreement has a contract amount of $150,000 annually for a total not to exceed $450,000. Actual expenditures will be based on services rendered and pursuant based on the fixed billing rates set forth in the Agreement. If approved, appropriations will be added to the future years' budgets consistent with the annual adoption process.

BACKGROUND & ANALYSIS: ICS Software, LLC provides the City with specialized application development and database administration for the City's business and public safety systems, including the development of mobile and web applications. Continued support and development services are required to ensure all databases are optimized and not adding unnecessary delays to the City's business applications or first responders' ability to provide high-quality public safety.

Funding will support the new task of public safety data archival as the City moves from systems housed locally in the data center to cloud-based systems. Staff requests Council approval to enter into a three-year agreement with ICS Software, LLC.
178
Department: Human Resources
Prepared By: Jeannette F Chavez
Staff Member Presenting:

Angela C. Lopez, Executive Director Human
Resources
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 26
SUBJECT: AN AMENDMENT TO THE ONTARIO STATION COOPERATIVE AGREEMENT NO. 93- 062 WITH THE SAN BERNARDINO COUNTY TRANSPORTATION AUTHORITY

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager, or his designee, to execute Amendment No. 1 (on file with the Records Management Department) to the Cooperative Agreement with the San Bernardino County Transportation Authority (SBCTA) to further clarify the roles and responsibilities of SBCTA and the City of Ontario with regard to the management and insurance of the jointly owned property at the Ontario Metrolink Station.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The Fiscal Year (FY) 2022-23 Adopted Budget includes appropriations for property insurance under the General Liability internal services fund. The projected cost for FY 2022-23, will be approximately $4,000 and adequate funding is available. If approved, appropriations will be included in future operating budgets.

BACKGROUND & ANALYSIS: The City of Ontario entered into Cooperative Agreement No. 93-062 (Contract No. 22-1002786) with SBCTA in May 1993 for the development, maintenance, and security of the commuter rail station (Station) located at the south side of Francis Street and Metroway in Ontario, CA. As part of the Cooperative Agreement, it was mutually negotiated that the City and SBCTA would hold title as tenants in common to all non-operating property associated with the site including security and maintenance of the property.

After a recent review of the Cooperative Agreement by City and SBCTA representatives, it was determined that an amendment was required to further clarify the responsibility of the parties with respect to the insurance of assets under the Cooperative Agreement and the apportionment of costs for said insurance.
179
The Amendment will require both parties to obtain and maintain real property insurance to cover the Station platforms and the canopies located at this site. SBCTA will secure the insurance and invoice the City for reimbursement of fifty percent (50%) of the cost, based on the insured values and premium for property insurance each fiscal year.

The Amendment will also include revisions related to California Public Utilities Code Section 130800 et. seq., also known as the San Bernardino County Transportation Authority Consolidation Act of 2017, identifying SBCTA as the successor agency to SANBAG. 180
Department: Economic Development
Prepared By: Charity Hernandez
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 27
SUBJECT: A REIMBURSEMENT AGREEMENT FOR PUBLIC IMPROVEMENTS BETWEEN THE CITY OF ONTARIO AND TIPPING DEVELOPMENT, INC.

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council adopt a Resolution approving a Reimbursement Agreement ("Agreement") between the City of Ontario ("City") and Tipping Development, Inc. ("Developer"), and authorize the City Manager to execute the Agreement and all other documents required for implementation of the Agreement.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the Growth and Evolution of the City's Economy FISCAL IMPACT: The Agreement will provide for reimbursement of actual documented infrastructure-related costs not to exceed $3,000,000. Additional appropriations will be included in the Water Capital Fund on the next quarterly budget update.

BACKGROUND & ANALYSIS: The City and Developer entered into a Disposition and Development Agreement on September 21, 2021, for the development of an infill mixed-use project ("Project") on a 0.86-acre site located at 125 West Emporia Street. The site is located within the boundaries of the Emporia Arts District, which encompasses various land uses including City administrative offices, commercial, and residential uses. The Project will include storage facilities for recreational vehicles and exotic cars, retail and restaurant pads, and future City office space to be occupied by the Community Life and Culture Agency.

The Capital Improvement Program includes the installation and upgrade of certain public water main improvements to address aging and dilapidated infrastructure. These certain public improvements lie within the Emporia Arts District and are bound by Holt Boulevard to the north, Euclid Avenue to the east, Emporia Street to the south, and Fern Avenue to the west, as depicted in Exhibit "A".
181
As a result of the Developers ability and willingness to install the public improvements in an expedited manner, Staff has found it beneficial to permit the Developer to undertake those certain public improvements including, but not limited to designing and permitting the public improvements, abandoning and upsizing water mains and appurtenances, installation of a fire hydrant, paving, and striping. The Developer will be reimbursed for this work. 182
EXHIBIT “A”
183
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING A REIMBURSEMENT AGREEMENT

BETWEEN THE CITY OF ONTARIO AND TIPPING DEVELOPMENT, INC,

FOR COSTS ASSOCIATED WITH THE CONSTRUCTION OF CERTAIN
PUBLIC IMPROVEMENTS.

WHEREAS, the City of Ontario ("City") and RWSS Development, LLC, (“Developer”) have entered into that certain Disposition and Development Agreement (The Vault), dated September 21, 2021 ("DDA"), for Developer to acquire certain Cityowned property (“DDA Property”) and construct a mixed-use project, including a storage facility for recreational vehicles and exotic cars, City office space, retail/restaurant pads, and a 3000-square foot space within the project that may ultimately be deeded to the City on such property; and
WHEREAS, the City has a separate, standalone Capital Improvement Program project under which the City intends to upgrade and install public improvements relating to domestic water service (“Public Improvements”). These Public Improvements will ultimately benefit the DDA Property. These Public Improvements will also benefit other properties in the area and further the goals and objectives of the City’s general plan by investing in critical infrastructure; and
WHEREAS, it has come to the attention of City that Tipping Development, Inc. (“Contractor”), an affiliate of Developer, is willing and able to upgrade and install the Public Improvements faster than the City. Therefore, the City and Contractor desire to enter into a reimbursement agreement in order for Contractor to upgrade and install the Public Improvements, and in order for the City to reimburse Contractor for certain expenses related thereto in accordance with the terms of the reimbursement agreement; and WHEREAS, City and Contractor have negotiated a reimbursement agreement to reimburse Contractor for an amount not to exceed Three Million Dollars ($3,000,000) to offset actual documented infrastructure-related costs associated with construction of the Public Improvements, a copy of which is attached hereto as Exhibit A and incorporated herein by this reference (the "Reimbursement Agreement"); and WHEREAS, based on information provided by City staff, and other such written and oral evidence as presented to the City, the City finds and determines that the allocation of funds to Contractor pursuant to the Reimbursement Agreement is reasonably related to a legitimate governmental purpose in that the Public Improvements will assist the City for the reasons set forth above; and
WHEREAS, all other legal prerequisites to the adoption of this Resolution have occurred.

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:
184
SECTION 1. Incorporation of Recitals, the foregoing recitals are true and correct, and are incorporated herein and made an operative part of this Resolution.

SECTION 2. CEQA, pursuant to the California Environmental Quality Act ("CEQA") (Pub. Res. Code, § 21000 et seq.) and the State CEQA Guidelines (Cal. Code Regs, tit. 14 § 15000 et seq.), City staff has determined that the public improvements associated with the Reimbursement Agreement are categorically exempt pursuant to Class 1 - Section 15310 of the CEQA Guidelines.

SECTION 3. Approval of Reimbursement Agreement, the City Council hereby approves the Reimbursement Agreement, in substantially the form attached to this Resolution as Exhibit "A," and authorizes and directs the City Manager to sign and enter into the Reimbursement Agreement and perform all obligations of the City pursuant to the Reimbursement Agreement.

SECTION 4. Severability, if any provision of this Resolution is held invalid, the remainder of this Resolution shall not be affected by such invalidity, and the provisions of this Resolution are severable.

SECTION 5. Effective Date, this Resolution shall become effective 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 16th day of August 2022.

PAUL S. LEON, MAYOR
ATTEST:

SHELIA MAUTZ, CITY CLERK
APPROVED AS TO LEGAL FORM:

BEST BEST & KRIEGER LLP

CITY ATTORNEY
185

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
186
187
188
189
190
191
192
193
194
195
196
197
198
199
200
201
202
Department: Planning
Prepared By: Rudy Zeledon
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Kimberly Ruddins, Charles
Mercier, Rudy Zeledon
Approved By:

SUPPLEMENTAL ENVIRONMENTAL IMPACT REPORT, INCLUDING THE ADOPTION

OF A MITIGATION MONITORING AND REPORTING PROGRAM AND A STATEMENT OF OVERRIDING CONSIDERATIONS; APPROVAL OF THE ONTARIO PLAN 2050 UPDATE GENERAL PLAN AMENDMENT; AND AN UPDATE TO THE COMMUNITY CLIMATE ACTION PLAN&NBSP;

CITY OF ONTARIO
Agenda Report
August 16, 2022
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council consider the following:

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
Pursue City's Goals and Objectives by Working with Other Governmental Agencies Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
FISCAL IMPACT: The proposed General Plan Amendment and Community Climate Action Plan update will have no direct fiscal impact to the City.
203
BACKGROUND & ANALYSIS:

BACKGROUND: The City of Ontario’s General Plan, The Ontario Plan (“TOP”), was comprehensively updated in 2010. Since 1992, the City has adopted numerous general plan amendments (“GPA”), including the 1998 New Model Colony GPA, GPAs for the 2001, 2010, and 2013 Housing Element updates, and various project-related GPAs. The State General Plan guidelines recommend General Plans be updated every ten years. State law also requires housing elements to be updated every eight years. Since 2010, significant State and regional issues affecting the City have developed. An updated General Plan is needed to address these issues, meet state mandates, and guide the City through the year 2050 and towards a prosperous future.

Although General Plans and their basic content are mandated by the State, cities and counties have the option of organizing and expanding their content to meet the needs of their jurisdiction. TOP meets the state mandate of a General Plan and much more. In 2020, the City contracted with PlaceWorks to update the general plan and its component parts. PlaceWorks was tasked with preparing a General Plan update that will continue to remain relevant through time, function like a business plan, and provide a foundation for City governance. The state-mandated General Plan (the Policy Plan) is just one component of The Ontario Plan.

TOP Framework
The Ontario Plan serves as the framework for the City’s business plan and provides a foundation for the City to operate as a municipal corporation. TOP includes six key components: Vision; Governance Manual; Policy Plan; Council Priorities; Tracking and Feedback; and Implementation.

The Governance Manual and the Policy Plan are the only components that contain policies. Each individual policy has been crafted to support a goal but may also strengthen other goals and policies within other sections in the policy components. These policies were designed to be internally consistent and used together to guide the City’s actions.

Originally adopted in 2010, the Vision still provides a strong foundation for the TOP and only required minor modifications. The Governance Manual received minor refinements to reflect new information and available technologies that could improve municipal operations and decisionmaking.

The TOP 2050 Update focuses on technical updates to the Policy Plan to comply with State housing mandates and conform with new State laws related to community health, environmental justice, climate adaption, resiliency, and mobility. The majority of updates created through the proposed project weave refinements throughout the existing structure of the Policy Plan.

Three component parts were not revised as part of the TOP 2050 update, including Council Priorities, Implementation, and Tracking and Feedback. The Council Priorities are updated concurrently with the annual budgeting process. The Implementation Plan will be updated to reflect changes to the Policy Plan. The Tracking and Feedback component will be advanced and formalized through additional coordination and software improvements.

TOP components include the following:
204
The Vision describes the future community of Ontario. Its basic purpose is to state a clear and comprehensive picture of where the City wants to be in 2050. It is the rationale and motivation for everything the City does. The four points of the Vision include: Dynamic Balance, Prosperous Economy, Distinctive Development, and Recognized Leadership.

The Governance Manual describes the foundation for conducting the public’s business on behalf of the present and future people of Ontario. It explains how TOP is a tool for decisionmaking and communication. The Governance Manual is one of TOP’s two policy components.

It contains five sections: Decision-Making, Communication, Implementation, External Factors, and Municipal Finance.

The Policy Plan connects intent with action through a broad range of goals and policies that will guide the long-term growth and development required for the City to achieve its Vision. It also satisfies the California Government Code requirement for a General Plan. The Land Use Plan includes land use designations to guide and regulate land use patterns, distributions, densities, and intensities in the City, including residential, employment, retail, recreation, and public uses. The Policy Plan is one of two policy components of TOP and includes nine elements which are discussed below in the Policy Plan section.

Council Priorities define the short-term direction in City actions and initiatives. They are the primary means for exercising leadership in carrying out the TOP and realizing the Vision through the adoption of the annual Budget.

The Implementation component consists of short and mid-term actions taken to carry out TOP policies. These City actions include day-to-day activities, Capital Improvement Plan, master plans, and initiatives.

The Tracking and Feedback component allows the City to learn from experience and redirect efforts, as needed. Tracking and Feedback will inform decision-makers about progress toward the Vision, as well as track progress toward the Governance Manual, Council Priorities, Policy Plan, and Implementation components on a regular basis. Feedback will help inform the public about how the City is doing toward achieving TOP goals.

Public Participation
The Ontario Plan has been influenced by several fact-gathering processes and used to gain information and insight from a broad range of persons, professions, and the public. The factgathering and public participation process was broad and inclusive (See Exhibit "A" TOP 2050 Public Outreach Timeline).

PROJECT ANALYSIS

POLICY PLAN (GENERAL PLAN)
The Policy Plan and its elements include an introduction and purpose section to frame the component’s context and intent. Consistent with the intent for TOP to be a living document with long-term relevance, the Policy Plan and its nine elements contain high-level guiding principles which proclaim the fundamental concepts critical to achieving the Vision. Each element includes sections with an introduction, a goal, and policies, all of which sustain the Vision. The Policy Plan 205
elements include Land Use, Housing, Parks and Recreation, Environmental Resources, Community Economics, Safety, Mobility, Community Design, and Social Resources.

Intent. The Policy Plan stands alone but is strengthened by being a core component of the larger framework of TOP. The Policy Plan was designed to maintain relevance over time; therefore, it is principle-based and relies on implementation plans for details and actions.

Organization. The Policy Plan’s nine elements have been organized topically to best meet the City’s needs. Concepts that are critical to the Vision, like economic prosperity, complete community, sustainability, and environmental justice are woven throughout the nine elements. Integrating key concepts into each element reinforces them throughout the document. The seven-state mandatory elements are covered in one or more of the Policy Plan Elements. For instance, Noise is addressed in both Land Use and Safety. Open Space is addressed in Land Use, Parks and Recreation, Environmental Resources, and Mobility.

State Mandated Elements
Element Policy Plan (General Plan)
Land Use Land Use
Circulation Mobility
Housing Housing
Open Space
Land Use; Parks and Recreation; Environmental
Resources, Mobility
Conservation Environmental Resources
Noise Safety; Land Use
Safety Safety; Land Use; Adaptation & Resiliency
Optional Elements (Non-Mandated)
Element (The state does not require or limit
the adoption of optional elements)
Policy Plan (General Plan)
Community Design
Community Economics
Social Resources
Environmental Justice (Interwoven among
elements)
ANALYSIS OF POLICY PLAN ELEMENTS:

Land Use Element
The Land Use Element (Sections LU-1 to LU-5) guides and regulates land use patterns, densities, and intensities throughout the City, including residential, employment, retail, recreation, and public uses. It includes five sections: Balance, Compatibility, Flexibility, Phased Growth, and Airport Planning and provides policies that support environmental justice. This element provides for uses and development that add value to the community, in terms of function, design, and fiscal return.

The Land Use Plan was designed to provide certainty, flexibility, and accommodate the evolution of 206
development types. The Land Use Element is a key to the development of a physically diverse and complete community.

The Policy Plan Preferred Land Use Plan, Figure LU-01, establishes twenty land use designations within five major categories: Residential, Mixed-Use, Retail/Service, Employment, and Other. In addition, three Overlay Zones are also identified.

The Map does not assign a public designation to all publicly owned facilities. Only permanent existing public facilities, such as City Hall, Library, and existing schools are designated as Public Facility or Public School. Future and non-permanent public facilities, such as future schools, are designated with the appropriate underlying land use. As schools and other permanent public facilities are developed, those sites will be noted on the Map accordingly with an amendment to the Policy Plan Map.

Office uses can be found within the Mixed-Use, Retail/Service, and Employment categories. The Mixed-Use designation provides for a mix of residential, office, and retail uses.

The land use designations in the City will remain as designated under the current General Plan, with adjustments made to the projected land use mix and boundaries of the mixed-use areas. The Buildout Statistical Summary table provides a statistical summary of the buildout potential associated with the TOP 2050 Policy Plan compared to existing conditions and compared to the buildout potential under the currently approved TOP ("approved project" or "approved TOP").

Buildout
Statistical
Summary
Scenario Units Population
Nonresidential
Square Feet
Employment
Existing Conditions 52,466 179,597 156,065,382 131,999
Approved TOP 104,163 357,957 260,399,271 313,067
Proposed TOP 129,562 410,492 291,491,779 296,002
Net Difference
(Proposed TOP -
Approved TOP)
25,399 52,535 1,092,508 -17,065
Housing Element
The Housing Element (Sections H-1 to H-5 and the Housing Element Technical Report) provides direction for the production, preservation, and improvement of housing in Ontario. The Housing Element includes five sections: Neighborhoods & Housing, Housing Supply & Diversity, Governmental Regulation, Housing Assistance, and Special Needs. The Housing Element Technical Report assesses housing needs through demographic trends and projections.

The Housing Element is one of the seven mandated elements of the General Plan, which each city and county in the State is required to periodically adopt (generally every eight years). The Housing Element is required to adequately plan to meet the existing and projected housing needs of all 207
economic segments of the community. The Housing Element was prepared to address the 6th Cycle RHNA period from October 15, 2021, through October 15, 2029, and it was also updated to comply with recently adopted housing element law. The Housing Element is the only element of the General Plan reviewed and certified by the State to ensure compliance with State law.

The Housing Element adoption was separated from the balance of The Ontario Plan 2050 Update and was recommended for approval by the Planning Commission on December 21, 2021 and was approved by the City Council on March 1, 2022. The Housing Element was submitted to the California Department of Housing and Community Development (“HCD”) for review in November 2021, and March 2022. On both occasions, HCD requested revision and additional analysis of the document.

The Housing Element is the only element that includes implementation as part of the Policy Plan.

An adequate supply of housing is a key component of a complete and economically sustainable community. The City recognizes that economic growth is dependent on growing jobs and providing housing for our workforce. As such, central to the Housing Element’s goals and policies is the concept of matching the type and affordability of housing with the needs of the City’s current and future workforce.

The City’s RHNA allocation is defined in the Housing Element as Quantified Objectives. A summary of the housing implementation strategies that will be used, as well as the Quantified Objectives, are provided below:

City of Ontario 6th Cycle RHNA Allocation by
Income Category
Income Category (Percent of Annual Mean
Income)
RHNA Allocation
Very Low (0 to 50%) 5,460
Low (51 to 80%) 3,386
Moderate (81 to 120%) 3,329
Above Moderate (121% or more) 8,599
Total 20,854
Source: SCAG 2021
Implementation Program Summary
Neighborhoods and Housing
Housing Supply and Diversity
Governmental Constraints
Housing Assistance
Special Needs Housing
Consistent with State law, the Housing Element includes a parcel-level analysis of potential housing sites within the City. The timing of the housing development within these sites is dependent on residential real estate and financial credit conditions, as well as site conditions such as lot size and configuration, existing buildings, and adequacy of infrastructure. Larger, mostly vacant and underutilized sites with adequate infrastructure are more likely to develop first. 208
Parks and Recreation Element
The Parks and Recreation Element (Sections PR-1 to PR-2) includes an analysis of existing park facilities and examines opportunities for new park spaces to accommodate the current and future needs. It also guides the development of recreational corridors that connect local and regional recreational resources and open space. This element includes two sections: Planning & Design, Programming, and provides policies that support environmental justice.

Environmental Resources Element
The Environmental Resources Element (Sections ER-1 to ER-5) guides the management of environmental resources and infrastructure and provides policies that support systems integration, resource conservation and regeneration, energy independence, and environmental justice. The Environmental Resources Element includes five sections: Water & Wastewater, Solid Waste & Recycling, Energy, Air Quality, and Biological, Mineral & Agricultural Resources. This element includes goals and policies to reduce global warming gas emissions, conserve water, and minimize the community’s waste stream.

Community Economics Element
The Community Economics Element (Sections CE-1 to CE-3) establishes goals and policies for attracting private investment, increasing the quantity and quality of jobs, expanding and diversifying the City’s revenue sources, and guiding the City’s financial decisions. Central themes to this element include “create, maintain and grow economic value” and the vision of Ontario as a “complete community”. This element includes three sections: Complete Community, Placemaking, and Fiscal Decision-making. This element is considered optional but critical to the vision of a prosperous economy.

Safety Element
The Safety Element (Sections S-1 to S-9) provides policies to minimize exposure to man-made and natural disasters and their impacts on life, property, commerce, and environmental justice. It addresses geology and seismicity, flooding, hazardous materials, noise, fire hazards and prevention, emergency preparedness, crime prevention, and adaptation and resiliency. This element includes nine sections: Seismic & Geological Hazards, Flood Hazards, Fire & Rescue Hazards, Noise Hazards, Wind-Related Hazards, Hazardous Materials & Waste, Law Enforcement, Emergency Management, and Energy Resiliency.

Mobility Element
The Mobility Element (Sections M-1 to M-5) guides the design and improvement of our multifaceted transportation system to meet the current and future needs of our residents, businesses, and the region. This element includes an evaluation of forecasts of future traffic levels and includes a variety of travel modes, including automobile, transit, rail, air, and non-motorized forms of travel.

The Mobility Element includes mobility and environmental justice policies that will accommodate Ontario’s Vision and projected growth. The Element includes five sections: Roadway System, Active 209
Transportation, Public Transit, Goods Movement, and Regional Transportation. This Element provides policies to ensure mobility options are integrated into land use planning, in terms of aesthetically pleasing and functional roadways, transportation facilities, linkages, and nodes.

Community Design
The Community Design Element (Sections CD-1 to CD-5) establishes the goals and policies that will create a built environment that fosters the enjoyment, financial benefit, and well-being of the entire community and protect the built environment as an investment. The Community Design Element reflects the City’s current high-quality design expectations and process. The Element includes five sections: Image and Identity, Design Quality, Urban, Mixed Use, and Transit-Oriented Place Types, Historic Preservation, and Protection of Investment. This element is a key to the functional and aesthetic future of the City and primarily supports the Land Use, Mobility, Safety, and Community Economics Elements. This element also includes eight Place Types Categories for areas that are geographically large, culturally unique, and regionally significant Districts that include: Downtown District, Airport/Metro Entertainment District, Guasti District, South Euclid District, South Employment District, East Holt Boulevard Corridor, Inland Empire Boulevard Corridor, and Neighborhood Center Infill (a-j).

Social Resources Element
The Social Resources Element (Section SR-1 to SR-5) provides goals and policies for the health and well-being of the community, addressing the City’s role in such issues as health care, education, and community services for the full spectrum of our population. This element includes five sections:

Health, Education, Community & Leisure Activities, Library, and Entertainment & Culture. Although this is an optional element, its goals and policies are necessary to fulfill the Vision of a prosperous economy through enrichment of community education, health, culture, arts, and provides policies that support environmental justice.

COMMUNITY CLIMATE ACTION PLAN UPDATE (File No. PADV22-002):

Background. On December 16, 2014, the City of Ontario adopted its Community Climate Action Plan ("CCAP"), which was prepared in response to AB 32 (2006) the California Global Warming Solutions Act. AB 32 required the California Air Resources Board ("CARB") to adopt State-wide regulations to achieve the maximum technologically feasible and cost-effective greenhouse gas ("GHG") emission reduction measures to help mitigate risks associated with climate change, improve energy efficiency, expand the use of renewable resources and cleaner transportation, and reduce waste. These regulations, in the form of the AB 32 Scoping Plan adopted by CARB, laid out California's plan for achieving the required GHG reductions. However, the Scoping Plan identifies the measures the State will undertake and the expected GHG reductions associated with these measures, but the State does not have direct jurisdictional control over many of the activities that produce GHG emissions within the state. So, the AB 32 Scoping Plan identified local governments' responsibilities for achieving the State GHG reduction goals. To accomplish the identified GHG reduction measures, the City adopted its CCAP.

The CCAP was designed to comply with the direction of AB 32 and associated implementation 210
programs while attempting to distribute the GHG reduction strategies evenly across the full spectrum of GHG generating activities. It was a comprehensive approach to all sectors of the community to participate and implement feasible strategies to reduce GHG emissions generated within the City consistent with statewide GHG emission reduction efforts. Where possible, it encouraged the implementation of voluntary programs and incentives to achieve the City's GHG reduction goals.

The CCAP consists of 1) an inventory of GHG emissions that identifies and quantifies existing emissions and projected future emissions, 2) a reduction target to reduce existing GHG emissions to 30 percent below business as usual (BAU) year 2020 projected levels, 3) policies and measures to reduce existing emissions to meet the reduction target consistent with the adopted TOP EIR, and 4) streamlined environmental review – with respect to GHG emissions – for development projects that are consistent with the CCAP.

The CCAP was intended to be a dynamic program, in that it required implementation, monitoring, evaluation, and adaptation. Its emission reduction measures were organized by the following:

State and regional measures include adopted, implemented, and proposed state and regional measures that do not require additional City action and that will result in quantifiable GHG emission reductions in the inventory.

Local measures include community-wide quantifiable measures that would further reduce GHG emissions for the City.

Performance standards for new development, providing a streamlined and flexible program for new residential and non-residential projects to reduce their emissions.

The implementation of the 2014 CCAP resulted in a per capita GHG emissions steady decline from 2008 levels. Per capita emissions in Ontario decreased from approximately 8.25 MTCO2e in 2008 to approximately 5.55 MTCO2e per person in 2019, a decrease of 33 percent. Overall sectors showed emissions decrease with four sectors experiencing the largest decreases in annual GHG emissions between 2008 and 2019 - land use and sequestration, agriculture, water and wastewater, and nonresidential energy, which reduced emissions by 77 percent, 75 percent, 56 percent, and 54 percent, respectively.

Community Climate Action Plan 2022 Update. The 2022 CCAP is the City's strategic plan to reduce GHG emissions and foster a sustainable community through 2050 and beyond. TOP directs the preparation, ongoing implementation, and update of the CCAP, providing the framework for the City to reduce its community wide GHG emissions in a manner consistent with the adopted state reduction target for 2030 and the longer-term goals for 2045 and 2050. The CCAP allows for City decision-makers, staff, and the community to understand the sources and magnitude of local GHG emissions, reduce GHG emissions, and prioritize steps to achieve GHG emission-reduced targets.

The 2022 CCAP is consistent with the CEQA Guidelines for the reduction of GHG emissions. This allows the CCAP to support and streamline environmental review of GHG emissions for future development projects and serves as the programmatic tiering document for review of the climate change impacts of projects under CEQA and is included in the SEIR for the TOP 2050 Update. 211
The 2022 CCAP is an update of the 2014 CCAP, providing updated analyses and background information, an expanded set of GHG reduction strategies, and a planning horizon out to 2050. It contains an inventory of the community's GHG emissions from the transportation, energy, waste, off-road equipment, agriculture, water and wastewater sectors, land use sequestration, stationary sources, and goals strategies and actions to address climate change adaptation and GHG emissions. The CCAP also presents a work plan for the City to implement strategies and track progress over time.

In conjunction with existing and planned local and State programs, these updated strategies provide a flexible path to reduce the community’s GHG emissions to meet the City’s 2030 and 2050 emission targets and to support the State’s adopted target for 2030 and its goal to achieve carbon neutrality by 2045. The City’s GHG reduction targets for reduced emissions are as follows:

Per Capita GHG Emission
Targets
TARGET 2030 Per Capita 2050 Per Capita
State 6.0 MTCO2e per person 2.0 MTCO2e per person
City Strategies with All
Reductions

3.52 MTCO2e per person 1.31 MTCO2e per person
ENVIRONMENTAL REVIEW: A Draft Supplemental Environmental Impact Report (SEIR) has been prepared for The Ontario Plan and addressed the following areas that may have a potentially significant impact on the environment between the adopted Plan and the proposed Project (2050 Update). These areas included: Aesthetics, Agriculture and Forestry Resources, Air Quality, Biological Resources, Cultural Resources, Energy, Geology and Soils, Greenhouse Gas Emissions, Hazards and Hazardous Materials, Hydrology and Water Quality, Land Use and Planning, Mineral Resources, Noise, Population and Housing, Public Services, Recreation, Transportation, Tribal Cultural Resources, Utilities and Service Systems, and Wildfire. Through the EIR process, these potential impacts were analyzed, revisions were incorporated into the plan and/or mitigation measures were identified that reduced the potential environmental impacts to a level that was less than significant. Of the 20 areas analyzed by the SEIR, all but four of the impact areas were mitigated to a level of less than significant. The four remaining impact areas, even with the mitigation measures, could not be reduced to less than significant and the impacts would remain significant, unavoidable, and adverse after mitigation measures are applied. These areas include:

Air Quality – Buildout of The Ontario Plan will cumulatively contribute to the nonattainment designations of the South Coast Air Basin ("SoCAB"), create short-term emissions from construction activities that exceed South Coast Air Quality Management District's ("AQMD") regional significance thresholds and cumulatively contribute to the nonattainment designations, generate long-term emissions that would exceed SCAQMD’s regional significance thresholds and cumulatively contribute to the SoCAB nonattainment designations, and could expose sensitive receptors to substantial concentrations of toxic air contaminants ("TAC");
Cultural Resources – Although protective regulations are in place and preservation policies are included in The Ontario Plan, implementation of the proposed Land Use Plan has the 212
potential to impact Tier III historic resources. Major modification or demolition of Tier III resources may be appropriate under certain circumstances; Noise – Buildout of the Proposed Land Use Plan will result in impacts related to the proximity of construction activities to sensitive users, construction vibration impacts from individual development projects, and from excessive airport-related noise and noise-related impacts from traffic on local roadways and construction activities in the City. These activities will substantially increase noise levels and affect noise-sensitive uses; and Transportation – Total vehicle miles traveled ("VMT") would increase under the Proposed Land Use Plan due to increased residential development. Future development projects will need to consider transportation demand management ("TDM") measures consistent with the Mobility Element.

The City of Ontario circulated the Draft SEIR on May 9, 2022, through June 23, 2022, for public review. At the end of the public review period 43 comments were received. Areas of concern include loss of agricultural land, environmental impacts associated with warehouse development, and a request for a warehouse moratorium. Refer to the Final Supplemental Environmental Impact Report (FSEIR), Section 2. Response to Comments.

While these impacts will be significant and unavoidable, the Staff believes that the benefits of The Ontario Plan outweigh the potential unavoidable, adverse impacts of the plan. As a result, the Planning Commission recommends that the City Council adopt a Statement of Overriding Considerations for those impacts that could not be fully mitigated to a level of less than significant.

Furthermore, to ensure that the mitigation measures are implemented, a Mitigation Monitoring and Reporting Program (MM&RP) has been prepared for the Project pursuant to CEQA Guidelines Section 15097. The MM&RP which specifies the responsible agencies/departments, monitoring frequency, timing and method of verification and possible sanctions for non-compliance with mitigation measures. The environmental documentation for this project is available for public review at the Planning Department public counter.

PLANNING COMMISSION RECOMMENDATION
On July 26, 2022, the Planning Commission held a public hearing and considered the entire oral and written record for the project. A total of six members of the public provided comments and expressed that the project DSEIR and CCAP requires more review time, were concerned about the loss of agricultural land, and requested the creation of a permanent agricultural preserve. After considering all public testimony, the Planning Commission voted 7-0 to recommend the Council 1) certify the SEIR, including adoption of the Statement of Overriding Considerations and the Mitigation Monitoring and Reporting Program; 2) adopt the TOP 2050 update General Plan Amendment; and 3) adopt the update to the Community Climate Action Plan. 213
Exhibit A
TOP 2050 Public Outreach Timeline
The Ontario Plan has been influenced by several fact-gathering processes, used to gain information and insight from a broad range of persons, professions, and the public. The fact-gathering and public participation process was broad and inclusive and included the following elements:
 June 14, 2021 — Property Owner Open House — Staff hosted a virtual open house to provide an overview of the TOP 2050 Project and land use designation changes on specific properties as part of the City's housing strategy to fulfill the 6th Regional Housing Needs Assessment (RHNA) Cycle site inventory obligation that are part of the Housing Element update.
 June 24, 2021 — Community Health Improvement Association — Staff hosted a virtual workshop to present the TOP 2050 update and to receive comments, and answer questions from the public.
 June 28, 2021 — Community Workshop #1 — Staff hosted a virtual workshop to present the TOP 2050 update, including the City's housing strategy to receive comments, and answer questions from the public.
 July 2, 2021 — In compliance with Senate Bill 18 and Assembly Bill 52 notification requirements (Tribal Consultation), the City mailed a separate project notice to 16 local tribes identified by the Native American Heritage Commission (NAHC). No consultation requests were received during the requisite 90-day response period.  July 21, 2021, to September 30, 2021 — Environmental Justice Survey — City staff deployed an Environmental Justice Survey to hear about environmental justice issues affecting the community. The survey was accessible by scanning a QR code utilizing a smartphone via the Ontario Plan website, social media, posters displayed at all the city community centers, and City iPads at community events.
 July 29, 2021 — Community Workshop #2 — Staff hosted a virtual workshop to facilitate a guided discussion of the environmental justice and survey, community health, and resiliency policies, and share the City's preferred land use plan and housing strategy. The intent of Community Workshop #2 was to further inform the community of policy updates and gather feedback regarding the preferred land use plan. This workshop also included the Community Health Improvement Association meeting group.  August 25, 2021, and August 26, 2021 — Concerts in the Park — Staff hosted a booth at the public events to provide an overview of the TOP 2050 Project. Visitors were encouraged to participate in an online survey regarding the TOP 2050 update. 214
 March 19, 2022 — Taste of Ontario — Staff hosted a booth at the public event and provided an overview of the TOP 2050 project, snacks, and interactive game.  March 31, 2022, April 28, 2022, May 26, 2022, and June 30, 2022 — Open House/Office Hours with City Staff — Staff hosted a series of Open House/Office Hours available to the public. Topics presented include environmental justice, climate adaption and resiliency, mobility, and economic considerations. Public questions include land use, industrial development, farming, and the availability of water.
 May 9, 2022 — The Notice of Availability (“NOA”) for the draft Supplemental Environmental Impact Report (“SEIR”) for The Ontario Plan 2050 (State Clearing House No. 2021070364) was posted to the City website. The NOA indicated that the SEIR was available for review and that the City would be accepting comments through June 23, 2022.  June 6, 2022, June 15, 2022, June 16, 2022 — Teen Action Committee (“TAC”) — Staff hosted the TAC and provided an overview of TOP 2050 Project and climate adaptation and resiliency.
215
Case Planner: Tom Grahn, Senior Planner Hearing Body Date Decision Action Planning Director
Approval:

DAB N/A N/A N/A
PC 07/26/2022 APPROVAL Recommend
Submittal Date: N/A CC 08/16/2022 Final
FILE NOS.: PGPA20-002 and PADV22-002
SUBJECT: The certification of a Supplemental Environmental Impact Report (“SEIR”) (State Clearinghouse No. 2021070364), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations, in conjunction with the following: [1] The Ontario Plan (“TOP”) 2050 update General Plan Amendment (File No. PGPA20-002) to the Vision, Governance Manual, and Policy Plan components of TOP, and [2] an update to the Community Climate Action Plan (File No. PADV22-002); City Initiated. City Council action is required.

RECOMMENDED ACTION: That the Planning Commission consider and recommend, pursuant to the facts and reasons contained in the staff report and the attached resolutions, that the City Council take the following actions:
(1) Adopt the Resolution certifying the Supplemental Environmental Impact Report (“SEIR”) (State Clearinghouse No. 2021070364), including the adoption of a Mitigation Monitoring and Reporting Program and a Statement of Overriding Considerations; and (2) Adopt the resolution approving The Ontario Plan (“TOP”) 2050 update General Plan Amendment (File No. PGPA20-002) to the Vision, Governance Manual, and Policy Plan components of TOP; and
(3) Adopt the resolution approving the update to the Community Climate Action Plan (“CCAP”) (File No. PADV22-002).

PROJECT SETTING: The City of Ontario is in the southwestern portion of San Bernardino County and is surrounded by the cities of Chino and Montclair and unincorporated San Bernardino County to the west; the cities of Upland and Rancho Cucamonga to the north; the City of Fontana and unincorporated San Bernardino County to the east; and the cities of Eastvale and Jurupa Valley to the south as depicted in Figure 1: Project Location Map, below.

The City of Ontario is situated in the central part of the Upper Santa Ana River Valley, bounded by the San Gabriel Mountains to the north; the Chino Hills, Puente Hills, and San Jose Hills to the west; the Santa Ana River to the south; and Lytle Creek Wash on the east.

The City comprises approximately 50 square miles (32,022 acres), including the 8,200-acre Ontario Ranch in the southern part of the City—formerly known as the New Model Colony (“NMC”) and formerly the City’s sphere of influence (“SOI”). The northern, more urbanized 303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

STAFF REPORT
July 26, 2022
216
Planning Commission Staff Report
File No.: PGPA20-002 and PADV22-002
July 26, 2022

Page 2 of 15 ends

Ontario City CouncilAugust 16, 2022

Ontario City Council
August 16, 2022