Agenda packet — Ontario City Council, November 15, 2022 (part 2 of 2)

features board-and batten doors, a stone chimney, and heavy exposed wood beams.

As depicted in Exhibit B: Site Plan, a pproximately 20 feet northeast of the residence is a detached garage and workshop co nstructed in the same style and materials as the residence, including irregular shaped concrete block walls and vertical wood paneling.

It is believed that the main door on the western façade of the garage is from the first broadcasting station in San Bern ardino County. The wooden double door features a geometric pattern and octagon shaped glass panes. The east façade of the garage features a row of clerestory wood windows, alternating between a clear glass pane and a decorative frosted glass pane. Also present on the site and 5 feet northwest of the primary residence, is a pool shed constructed of the same horizontal wood panels visible on the residence and garage. Building permits indicate that the garage and shed were constructed in 1947. An additional shed located west of the pool shed was constructed at a later date. Located along the west property line is a freeform shaped pool, according to building permit records, it was built in 1966. A small pond is located west of the garage. The property is surrounded with mature trees that contribute to the rustic character of the property, creating a “forest” like setting.

(2) History and Historic Context – The Maurice Johnson house is t he only known example of Folk architecture in the Ontario area, built using recycled or salvaged materials. The builder, Maurice Johnson built the house in 1946 using materials that were available at the time . The Folk style of ar chitecture is best known as a building being constructed outside any tradition, without professional guidance. The word Folk was first used in the 1800s, often a design would be made based on available local materials, their functionality, and reflect local traditions. The Maurice Johnson House was built in this style by Maurice Johnson who is believed to have been the son-in-law of Kostany Stys, a significant contributor to Folk architecture and “rubble construction” in the region.

The Great Depression brought about a lack of building resources which inspired Kostany Styes, a Polish immigrant, to build homes using salvaged materials in the nearby Claremont and Montclair areas. Styes built 15 Folk style residences in Claremont using salvaged materials, including rubble and stone between 1925 -1940. The collection of homes known as “The Russian Village” was designated as a historic district and was added to the National Register of Historic Places in 1978 as a definitive example of Folk architecture. The houses were recognized based off the unique nature of the folk architecture and the social and economic setting that contributed to the construction of these houses. The rubble construction house at 409 North San Antonio Avenue is the only known example of this type in the City of Ontario and was built with many unique materials, including cement believed to have been salvaged from “A” street (Holt), concrete curbs, a door from an early broadcasting station and formal gardens. The house was complete d in 1946, shortly after Kostany Styes completed his collection of homes in Claremont.

(3) Landmark Designation Criteria – A historic resource may be designated a local “historic landmark” by the City if it meets the criteria for listing in the National Register of Historic Places, the California Register of Historic Resources, or it meets the Local 151
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Landmark Designation criteria in the Ontario Development Code, which is based on architecture and history. Historic resources must also have integrity for the time in which they are significant. The aspects considered when evaluating historic integrity of a property include design, setting, materials and workmanship, location, feeling and association. The architectural integrity of the residence and detached garage are high as they retain most of the original exterior features and have had minimal alterations. The integrity of the site is moderate, the preservation of the mature trees on the site contribute to the historic significance as it conveys the feeling and association of early life in Ontario.

The removal of a mature tree in between the house and garage, new construction of storage sheds and a pool, and installation of chain link fencing along the perimeter of the property have reduced the integrity from high to moderate. The City currently has 99 locally designated historic landmarks and designation of the Maurice Johnson House would be Local Landmark No. 100.

The Maurice Johnson House is an excellent example of the Folk architectural style, which is evident by the presence of the building’s character-defining features, including the use of salvaged materials such as the stone siding and ornate doors. Other characteristics of the residence that are typical of the Folk architectural style include a simple construction method, irregular placement on the lot, and the extensive plantings surrounding the property. The rubble construction residence is the only known example of this type in the City of Ontario and was built with many unique materials including cement believed to have been salvaged from Holt Boulevard (formerly known as “A” Street), concrete curbs, a door from an early broadcasting station and formal gardens.

On September 8, 202 2, the Historic Preservation Subcommittee determined that the Maurice Johnson House was a Tier III Historic Resource eligible for individual listing on the Ontario Register of Historic Resources , Exhibit D: Tier Determination, and recommended local landmark approval finding that it met the following designation criteria (d) in Section 4.02.040 of the Development Code:

The historic resource embodies distinguishing architectural characteristics of a style, type, period, or method of construction . The Maurice Johnson House is an excellent example of the Folk architectural style, which is evident by the presence of the building’s character-defining features, including the use of salvaged materials such as the stone siding and ornate doors. Other characteristics of the residence that are typical of the Folk architectural style include a simple construction method, irregular placement on the lot, and the extensive plantings surrounding the property. The rubble construction residence is the only known example of this type in the City of Ontario and was built with many unique materials including cement believed to have been salvaged from “A” S treet, concrete curbs, a door from an early broadcasting station and formal gardens.

COMPLIANCE WITH THE ONTARIO PLAN: The proposed landmark designation is consistent with the principles, goals and policies contained within the Vision, Governance, Policy Plan (General Plan), and City Council Priorities components of The Ontario Plan (TOP).

More specifically, the goals and policies of TOP that are furthered by the proposed project are as follows:
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(1) City Council Goals.

• Focus Resources in Ontario’s Commercial and Residential Neighborhoods

(2) Vision.

DYNAMIC STABILITY

• An appreciation for the “personality and charm” of this community, preserving important characteristics and values even as growth and change occur, all the while retaining a distinctive local feel where people love to be.

(3) Governance.

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

o G1-1 Consistency with Policies . We require that staff recommendations to the City Council be consistent with adopted City Council Priorities (Goals and Objectives) and The Policy Plan

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

(4) Policy Plan (General Plan).

Community Design Element:

• Goal CD-1 Image & Identity: A dynamic, progressive city containing distinct and complete places that foster a positive sense of identity and belonging among residents, visitors, and businesses.

o CD-1.1 City Identity. We take actions that are consistent with the City being a leading urban center in Southern California while recognizing, enhancing, and preserving the character of our existing viable neighborhoods.

o CD-1.3 Existing Neighborhoods. We require the existing character of viable residential and non -residential neighborhoods be preserved, protected, and enhanced.

• Goal CD-4 Historic Preservation: Historic buildings, streets, landscapes, and neighborhoods, as well as the story of Ontario’s people, businesses, and social and community organizations, have been preserved and serve as a focal point for civic pride and identity.

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o CD-4.6 Promotion of Public Involvement in Preservation. We engage in programs to publicize and promote the City’s and the public’s involvement in preservation efforts.

• Goal CD-5 Protection of Investment: A sustained level of maintenance and improvement of properties, buildings, and infrastructure that protects the property values and encourages additional public and private investments.

o CD5-4 Neighborhood Involvement. We encourage active
community involvement to implement programs aimed at the beautification and improvement of neighborhoods.

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Exhibit A: Aerial Map

Project Site
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Exhibit B: Site Plan

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Exhibit C: Site Photographs and Contributing Buildings

The Maurice Johnson House

Year Built:

1946

Architectural Style:

Folk Architecture

Description:

The house has a flat roof and
large exposed eves and
rafters. The house was built
with rough concrete blocks
and salvage stone siding
that are believed to be
salvaged from “A” street,
now known as Holt Blvd.

The majority of windows are
steel, multi pane fi xed &
casement windows. With a
few wood fixed windows

Image 1: View looking west Primary entrance

Image 2: Rear, view looking east

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Private garage/ Workshop

Year Built:

1947

Architectural Style:

Folk Architecture

Description:

The detached garage, also
built in 1946 has been used
as a workshop and is
constructed with similar
concrete block walls and
vertical wood paneling as
the main house.

The garage also has unique
doors pictured in the middle
photo of the west elevation.

T
he 1980s citywide
architectural survey
indicates that the doors
were from the first
broadcasting station in San
Bernardino County .

Clerestory windows are
featured in front of the
garage with different
patterns and colors, and
attached is a carport on the
east side

Image 3: Detached Garage, east elevation

Image 4: Detached Garage, west elevation

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Pool Shed

Year Built:

1947

Architectural Style:

Folk Architecture

Description:

The pool shed, also built in
1946 has been used as a
workshop and is
constructed with similar
concrete block walls and
vertical wood paneling as
the main house.

Informal Garden

Architectural Style:

Cultural Landscape

Description:

Informal Gardens located
on east of the residence
containing various species
of trees.

Image 5: Original Pool shed

Image 6: Landscaping of informal gardens

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Exhibit D: Tier Determination

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RESOLUTION NO. PC22-055

A RESOLUTION OF THE HISTORIC PRESERVATION COMMISSION OF

THE CITY OF ONTARIO, CALIFORNIA, RECOMMENDING THAT THE
CITY COUNCIL APPROVE FILE NO. PHP21-016, TO DESIGNATE THE MAURICE JOHNSON HOUSE LOCATED AT 409 NORTH SAN ANTONIO
AVENUE, AS LOCAL HISTORIC LANDMARK NO. 100 AND MAKING
FINDINGS IN SUPPORT THEREOF—APN: 1048-314-11.

WHEREAS, Mallory Jean and Robby Gibson, and Gray McMinn ("Applicant") has filed an Application for the approval of a Local Historic Landmark Designation, File No.

PHP21-016, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and

WHEREAS, the City’s character and history are reflected in its cultural, historical, and architectural heritage, with an emphasis on the “Model Colony” as declared by an act of the Congress of the United States and presented at the St. Louis World’s Fair in 1904; and

WHEREAS, the City’s historical foundations should be preserved as living parts of community life and development in order to foster an understanding of the City’s past so that future generations may have a genuine opportunity to appreciate, enjoy, and understand Ontario’s rich heritage; and

WHEREAS, the Community Design element of The Ontario Plan (General Plan) sets forth Goals and Policies to conserve Ontario’s historic buildings and districts; and

WHEREAS, the Maurice Johnson House, a Folk architectural style, single-family residence constructed in 1946, located at 409 North San Antonio Avenue (APN: 1048- 314-11) is worthy of preservation and designation as a Local Historic Landmark; and

WHEREAS, the detached garage/workshop, wooden shed, informal garden, and mature landscaping contributes to the historic significance of the property; and

WHEREAS, on September 8, 2022, the Historic Preservation Subcommittee of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Decision No. HPSC22 -005, determining that the Maurice Johnson House met the Tier III Historic Resource Criteria as set forth in Section 4.02.040 (Historic Preservation-Local Historic Landmark and Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of the Ontario Development Code; and

WHEREAS, the designation is not considered a project pursuant to Section 21065 of the CEQA Guidelines; and
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WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Historic Preservation Commission the responsibility and authority to review and make recommendation to the City Council on the subject Application; and

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

WHEREAS, on September 8, 2022, the Historic Preservation Subcommittee of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Decision No. HPSC22-006, recommending the Historic Preservation Commission recommend to the City Council approval of the Application; and

WHEREAS, on October 25, 2022, the Historic Preservation Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and

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

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

SECTION 1: Environmental Determination and Findings. As the recommending body for the Project, the Historic Preservation Commission has reviewed and considered the information contained in the administrative record for the Project.

Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the Historic Preservation Commission, the Historic Preservation Commission finds as follows:

(1) The designation is not considered a project pursuant to Section 21065 of the CEQA Guidelines.

(2) The CEQA determination reflects the independent judgment of the Historic Preservation Commission.

SECTION 2: Concluding Facts and Reasons. Based upon the substantial evidence presented to the Historic Preservation Commission during the above- referenced hearing, and upon the specific findings set forth in Section 1 , above, the Historic Preservation Commission hereby concludes that the Maurice Johnson House meets local landmark designation criteria (d) as contained in Section 4.02.040 (Historic Preservation-Local Historic Landmark and Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of the Ontario Development Code, finding 164
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that “ [t]he historic resource embodies distinguishing architectural characteristics of a style, type, period, or method of construction. ” The Maurice Johnson House is an excellent example of the Folk architectural style, which is evident by the presence of the building’s character-defining features, including the use of salvaged materials such as the stone siding and ornate doors. Other characteristics of the residence that are typical of the Folk architectural style include a simple construction method, irregular placement on the lot, and the extensive plantings surrounding the property. The rubble construction residence is the only known example of this type in the City of Ontario and was built with many unique materials including cement believed to have been salvaged from “A” Street (now known as Holt Boulevard), concrete curbs, a door from an early broadcasting station and formal gardens.

SECTION 3: Historic Preservation Commission Action. Based upon the findings and conclusions set forth in Sections 1 through 2 , above, the Historic Preservation Commission hereby RECOMMENDS THE CITY COUNCIL APPROVE THE LOCAL LANDMARK DESIGNATION.

SECTION 4: Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void, or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action, or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 5: Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East “B” Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 6: Certification to Adoption. The Secretary shall certify to the adoption of the Resolution.

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

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RESOLUTION NO._________

A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PHP21-016, THE DESIGNATION OF THE MAURICE JOHNSON HOUSE, LOCATED AT 409 NORTH SAN

ANTONIO AVENUE, AS A LOCAL HISTORIC LANDMARK AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 1048-314-11.

WHEREAS, Mallory Jean and Robby Gibson, and Gray McMinn ("Applicant") have filed an Application for the approval of a Local Historic Landmark Designation, File No.

PHP21-016, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the City’s character and history are reflected in its cultural, historical, and architectural heritage with an emphasis on the “Model Colony” as declared by an act of the Congress of the United States and presented at the St. Louis World’s Fair in 1904; and
WHEREAS, the City’s historical foundations should be preserved as living parts of community life and development in order to foster an understanding of the City’s past so that future generations may have a genuine opportunity to appreciate, enjoy, and understand Ontario’s rich heritage; and
WHEREAS, the Community Design element of The Ontario Plan (General Plan) sets forth goals and policies to conserve Ontario’s historic buildings and districts; and WHEREAS, the Maurice Johnson House is situated on 0.89 acres of land located at the northwest corner of North San Antonio Avenue and West D Street at 409 North San Antonio (APN: 1048-314-11), and is legally described as ONTARIO COLONY LANDS S 181.5 FT E 120 FT LOT 956; and
WHEREAS, the Maurice Johnson House is a single-story residence constructed in the Folk style of architecture in 1946 and the detached garage/workshop, wooden shed, informal garden, and mature landscaping on the property contributes to the historic significance of the property; and
WHEREAS, on September 8, 2022, the Historic Preservation Subcommittee of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Decision No. HPSC22-005, determining that the Maurice Johnson House met the Tier III Historic Resource Criteria as set forth in Section 4.02.040 (Historic Preservation-Local Historic Landmark and Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of the Ontario Development Code; and
WHEREAS, on September 8, 2022, the Historic Preservation Subcommittee reviewed this property and determined that it met local landmark designation criteria (d) as set forth in in Section 4.02.040 (Historic Preservation-Local Historic Landmark and 168
Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of the Ontario Development Code) and unanimously recommended approval, adopting its Decision No. HPSC22-006; and
WHEREAS, on October 25, 2022, the Historic Preservation Commission reviewed this property and unanimously recommended approval, adopting its Resolution No.

PC22-055.

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

SECTION 1. Environmental Determination and Findings. As the decision- making body for the Project, the City Council has reviewed and considered the information contained in the administrative record for the Project. Based upon the facts and information contained in the administrative record, including all written and oral evidence presented to the City Council, the City Council finds that the designation is not considered a project pursuant to Section 21065 of the CEQA Guidelines.

SECTION 2. Concluding Facts and Reasons . Based upon the substantial evidence presented to the City Council during the above-referenced hearing and upon the specific findings set forth in Section 1 above, the City Council hereby concludes as follows:
(1) The historic resource meets criteria (d) for local landmark designation as contained in Section 4.02.040 (Historic Preservation-Local Historic Landmark and Local District Designations, Historic Resource Tiering, and Architectural Conservation Areas) of the Ontario Development Code); The historic resource embodies distinguishing architectural characteristics of a style, type, period, or method of construction. (2) The Maurice Johnson House is an excellent example of the Folk architectural style, which is evident by the presence of the building’s character-defining features, including the use of salvaged materials such as the stone siding and ornate doors. Other characteristics of the residence that are typical of the Folk architectural style include a simple construction method, irregular placement on the lot, and the extensive plantings surrounding the property. The rubble construction residence is the only known example of this type in the City of Ontario and was built with many unique materials including cement believed to have been salvaged from “A” Street (Holt Boulevard), concrete curbs, and a door from an early broadcasting station. Other contributing historical features include the detached garage/workshop, wooden shed, informal garden, and mature landscaping on the property.

SECTION 2. City Council Action. Based upon the findings and conclusions set forth in Sections 1 and 2 above, the City Council hereby APPROVES and designates the Maurice Johnson House, located at 409 North San Antonio, as Local Historic Landmark No. 100 and that is subject to the provisions of the Historic Preservation Ordinance.
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SECTION 4. Indemnification. The Applicant shall agree to defend, indemnify and hold harmless, the City of Ontario or its agents, officers, and employees from any claim, action or proceeding against the City of Ontario or its agents, officers or employees to attack, set aside, void or annul this approval. The City of Ontario shall promptly notify the applicant of any such claim, action or proceeding, and the City of Ontario shall cooperate fully in the defense.

SECTION 5. Custodian of Records. The documents and materials that constitute the record of proceedings on which these findings have been based are located at the City of Ontario City Hall, 303 East “B” Street, Ontario, California 91764. The custodian for these records is the City Clerk of the City of Ontario.

SECTION 6. Certification to Recordation. The City Clerk of the City of Ontario, California, shall cause a copy of this Resolution to be recorded in the office of the County Recorder of San Bernardino, County, California.

SECTION 7. 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 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_______________________________________

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

BEST BEST & KRIEGER LLP

CITY ATTORNEY
170

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 November 15, 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 November 15, 2022. _______________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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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: 20
SUBJECT:

A PUBLIC HEARING TO CONSIDER A DEVELOPMENT AGREEMENT (FILE NO.

PDA22-001) BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO, LLC., TO

ESTABLISH THE TERMS AND CONDITIONS ASSOCIATED WITH TENTATIVE TRACT MAP 20529 (FILE NO. PMTT22-010), AN 11.11-ACRE PROPERTY GENERALLY LOCATED ON THE EAST SIDE OF TWINKLE AVENUE, APPROXIMATELY 350 FEET SOUTH OF FUTURE CHINO AVENUE, WITHIN PLANNING AREAS 4A, 4B, AND 4C (RESIDENTIAL - SFD/ATTACHED) LAND USE DISTRICTS OF THE RICH HAVEN SPECIFIC PLAN (APN: 0218-161-14).

CITY OF ONTARIO
Agenda Report
November 15, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council introduce and waive further reading of an Ordinance approving a Development Agreement (File No. PDA22-001) between the City of Ontario and BrookCal Ontario LLC., to establish the terms and conditions associated with Tentative Tract Map 20529 (File No. PMTT22-010), an 11.11-acre property generally located on the east side of Twinkle Avenue, approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential - SFD/Attached) land use district of the Rich Haven Specific Plan.

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:

The proposed Development Agreement (File No. PDA22-001) will not have a direct impact on the City's General Fund. The Development Agreement will provide funding from the formation of a Community Facilities District (CFD) for City services and facilities required to support the Rich Haven Speciﬁc Plan development, thereby mitigating the increased costs associated with such services. In addition, the City will receive public service funding fees plus development impact, compliance processing, licensing, and permitting fees. No General Fund revenue will be used to support the Ontario Ranch development.

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BACKGROUND & ANALYSIS:

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

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

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

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

The Agreement proposes to include 11.11 acres of land within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich-Haven Speciﬁc Plan, as shown on the attached Exhibit A. The Agreement grants the Owner a vested right to develop Tentative Tract Map 20529 (the “Map”), provided the Owner complies with the terms and conditions of the Agreement, Specific Plan, and EIR.

The Map (see attached Exhibit B) is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue and proposes to subdivide approximately

11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes.

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the 173
Agreement address funding for all new City expenses created by the project, which includes:

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

In considering the Agreement at their meeting on October 25, 2022, the Planning Commission found that the Agreement was consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No.

PC22-062 with a 6 to 0
vote, recommending City Council approval of the Agreement.

HOUSING ELEMENT COMPLIANCE
: The Project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the Project site is not one of the properties in the Housing Element Sites contained in Table B-1 (Housing Element Sites Inventory) of the Housing Element Technical Report.

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

ENVIRONMENTAL REVIEW
: The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Speciﬁc Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certiﬁed by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new signiﬁcant environmental impacts. The proposed project is located within the Airport Inﬂuence Area of Ontario International Airport and was evaluated and found to be consistent with the policies and criteria of the Ontario International Airport Land Use Compatibility Plan (ONT ALUCP).

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Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN

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Exhibit B—TENTATIVE TRACT MAP NO. 20529

176
Case Planner: Derrick Womble,
Departmental Administrator Hearing Body Date Decision Action Planning Director
Approval:

DAB N/A N/A N/A
PC 10/25/2022 Recommend
Submittal Date: N/A CC 11/15/2022 Final
F
ILE NO: PDA22-001
SU
BJECT: A public hearing to consider a Development Agreement between the City of Ontario and BrookCal Ontario LLC, to establish the terms and conditions associated with Tentative Tract Map 20529 (PMTT22-010), an 11.11 acre property generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich- Haven Specific Plan; (APN: 218-161-14) submitted by BrookCal Ontario LLC. City Council action is required.

P
ROPERTY OWNER: BrookCal Ontario LLC., a Delaware limited liability company R
ECOMMENDED ACTION: That the Planning Commission consider and recommend the City Council adopt an ordinance approving the Development Agreement (File No.

PDA22-001) between the City of Ontario and BrookCal Ontario LLC, pursuant to the facts and reasons contained in the staff report and attached resolution.

P
ROJECT SETTING: The project site is comprised of 11.11 acres of land generally located 400 feet southwest of Chino Avenue and
Mill Creek Avenue, within Planning Area s
4A, 4B, and 4C (Residential –
SFD/Attached) land use districts of the Rich
Haven Specific Plan, depicted in Figure 1:

Project Location , right. The existing
surrounding land uses, zoning, and general
plan and specific plan land use
designations are summarized in the
“Surrounding Zoning & Land Uses” table
located in the Technical Appendix of The
Ontario Plan (TOP).

P
ROJECT ANALYSIS:
(
1) Background — On December 4,
2007, the City Council certified the Rich
Haven Specific Plan Environmental Impact
Report in conjunction with File No. PGPA07-
303 East B Street, Ontario, California 91764 Phone: 909.395.2036 / Fax: 909.395.2420

PLANNING COMMISSION

STAFF REPORT
October 25, 2022
Figure 1: Project Location
Project Site
Approval
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001. The related Rich Haven Specific Plan, File No. PSP05-004, was approved by the City Council on December 18, 2007. The Specific Plan established the land use designations, development standards, and design guidelines for approximately 512 acres of land, which included the potential development of 4,256 residential units and 889,200 square feet of commercial/office land uses.

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

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

The proposed Agreement (File No. PDA2 2-001) is based on the model Development Agreement that was developed in coordination with the City Attorney and legal counsel for NMC Builders. This model Development Agreement is consistent with the provisions of the Construction Agreement. The terms of the agreement between NMC Bu ilders’ members requires that members of the LLC enter into Development Agreements that are consistent with the provisions of the Construction Agreement.

(2) Staff Analysis — The Agreement proposes to include 11.11 acres of land within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich- Haven Specific Plan , as shown on the attached Exhibit A. The Agreement grants the Owner a vested right to develop Tentative Tract Map 20 529 (the “Map”), provided the Owner complies with the terms and conditions of the Agreement, Specific Plan, and EIR.

The Map (see attached Exhibit B) is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue , and proposes to subdivide approximately 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family dwelling units, drive aisles, utility easement, public/private streets, landscape d neighborhood edges and common open space purposes.
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The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the Agreement address funding for a ll new City expenses created by the project, which includes: Development Impact Fees (“DIF”) for construction of public improvements (i.e. , streets and bridges, sewer, water, storm drain and fiber); Public Service Funding to ensure adequate provisions of p ublic services (police, fire and other public services); and the creation of a Community Facilities District (“CFD”) for the maintenance of public facilities.

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

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

(1) City Council Goals.

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

(2) Vision.

Distinctive Development:

 Commercial and Residential Development

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

(3) Governance.

Decision Making:

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

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

Land Use Element:

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

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

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

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

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

Housing Element:

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

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

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

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

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

Community Economics Element:

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

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

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

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

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

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

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

Safety Element:

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

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

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Community Design Element:

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

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

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

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

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

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

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

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

• A pattern of smaller, walkable blocks that promote access, activity and safety;
• Variable setbacks and parcel sizes to accommodate a diversity of housing types;
• Traffic calming measures to slow traffic and promote walkability whi le maintaining acceptable fire protection and traffic flows; • Floor plans that encourage views onto the street and de-emphasize the visual and physical dominance of garages (introducing the front porch as the “outdoor living room”), as appropriate; and
• Landscaped parkways, with sidewalks separated from the curb. 182
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 CD2-7 Sustainability. We collaborate with the development community to design and build neighborhoods, streetscapes, sites, outdoor spaces, landscaping and buildings to reduce energy demand through s olar orientation, maximum use of natural daylight, passive solar and natural ventilation, building form, mechanical and structural systems, building materials and construction techniques.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

HOUSING ELEMENT COMPLIANCE: The Project is consistent with the Housing Element of the Policy Plan (general plan) component of The Ontario Plan, as the P roject site is not one of the properties in the Housing Element Sites contained in Table B-1 (Housing Element Sites Inventory) of the Housing Element Technical Report.

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

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ENVIRONMENTAL REVIEW: The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts. The proposed project is located within the Airport Influence Area of Ontario International Airport and was evaluated and found to be consistent with the policies and criteria of the Ontario International Airport Land Use Compatibility Plan (ONT ALUCP).

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Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN
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Exhibit B—TENTATIVE TRACT MAP NO. 20529
187
RESOLUTION NO. PC22-062

A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF

ONTARIO, CALIFORNIA, RECOMMENDING THE CITY COUNCIL
APPROVE FILE NO. PDA2 2-001, A DEVELOPMENT AGREEMENT
BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO LLC. ,

TO ESTABLISH THE TERMS AND CONDITIONS FOR THE
DEVELOPMENT OF TENTATIVE TRACT MAP NO. 20529 (FILE NO.

PMTT22-010), AN 11.11 ACRE PROPERTY GENERALLY LOCATED ON THE EAST SIDE OF TWINKLE AVENUE APPROXIMATELY 350 FEET
SOUTH OF FUTURE CHINO AVENUE , WITHIN PLANNING AREA S 4A, 4B, AND 4C (RESIDENTIAL – SFD/ATTACHED) LAND USE DISTRICTS

OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-161-14.

WHEREAS, the Application applies to 11.11 acres of land generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use district s of the Rich Haven Specific Plan; and

WHEREAS, the Applicant has submitted a Tentative Tract Map 20529 (File No.

WHEREAS, the environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan ( File No. PSP05 -004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and

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

WHEREAS, Ontario Development Code Table 2.02- 1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and 188
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WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and

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

WHEREAS, on October 25, 2022, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and

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

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

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

(1) The environmental impacts of this project were previously reviewed in conjunction with the Rich -Haven Specific Plan ( File No. PSP05 -004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on Decemb er 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and

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

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

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

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

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

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

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

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

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

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

(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or 190
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(d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3: Housing Element Compliance . Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending body for the Project, the PLANNING COMMISSION finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the Project is consistent with the Housing Element of the Policy Plan (General Plan) compone nt of The Ontario Plan, as the P roject site is not one of the properties in the Housing Element Sites contained in Table B-1 (Housing Element Sites Inventory) of the Housing Element Technical Report.

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

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

a. The Development Agreement applies to approximately 11.11 acres of land generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning A reas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan; and 191
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b. The Development Agreement establishes parameters for the development of the Planning Areas 4A, 4B, and 4C Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent w ith The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and

c. The Development Agreement grants the Owner a vested right to develop Tentative Tract Map 20 529 (File No. PMTT22-010) as long as the Owner complies with the terms and conditions of the Specific Plan and EIR. Tentative Tract Map 20529 is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, and proposes to subdivide 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi -family dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes; and

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

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

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

g. This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with the Rich- Haven Specific Plan (File No.

PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007; and

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

SECTION 6: Planning Commission Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the Planning Commission hereby RECOMMENDS THE CITY COUNCIL APPROVE the herein described Application, subject to each and every condition set forth in the Development Agreement (File No. 192
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PDA22-001) attached hereto as “Att achment A,” and incorporated herein by this reference.

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

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

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

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

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194
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ATTACHMENT A:

File No. PDA22-001

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and

BrookCal Ontario LLC.,
a Delaware limited liability company

(Development Agreement to follow this page)

196
46700.90310\40741290.1

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

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

FILE NO. PDA22-001

DEVELOPMENT AGREEMENT

By and Between

City of Ontario
a California municipal corporation

and
BrookCal Ontario LLC
a Delaware limited liability company

_________________________, 2022

San Bernardino County, California
197
46700.90310\40741290.1

-2-

DEVELOPMENT AGREEMENT NO. PDA22-001
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 20 22 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and BrookCal Ontario, LLC., a Delaware limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the term s and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in that Rich -Haven Specific Plan (State Clearinghouse No. 2006051081 (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Rich-Haven Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 198
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improvements, provide for public services appropriate to the development of the Project, and generally serve the purposes for which development agreements under Sections 65864 et seq. of the Government Code are intended; and
WHEREAS, OWNER has incurred and will in the future incur substantial costs in excess of the generally applicable requirements in order to assure vesting of legal rights to develop the Property in accordance with this Agreement.

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

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

1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

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

1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all amendments thereto , and “Construction Agreement Amendment” means that First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21
st day of August 2012.
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1.1.4 “Development” means the improvement of the Property for the purposes of completing the str uctures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of b uildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

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

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

1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4 , For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring complianc e with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese- Knox-Hertzberg Local Government 200
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Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Cod e, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code , and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.

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

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

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

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

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

1.1.13 “Improvement” or “Improvements” means those public improvements required to support the development of the Project as described in the Tract Map conditions for Tract No. 20529 as further described in Exhibit “E” and depicted in Exhibit “F” (the “Infrastructure Improvements Exhibit”).

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

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

1.1.16 “Model Units ” means a maximum of twelve (12) model units , private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production Units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.

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

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

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

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

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

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

1.1.23 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as descri bed in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions listed in the Construction Agreement Amendment.

1.1.24 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
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1.1.25 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.1.26 “Water Availability Equivalent (WAE)” means a designated portion of the total Net MDD made available through the construction of each Phase described in the Water Phasing Plan of the Construction Agreement. The number of Water Availability Equivalents (of portions thereof) required for the issuance of each building permit shall be based upon water demand factors and assumptions listed in the Construction Agreement and Construction Agreement Amendment as “Water Availability Equivalents by Land Use” for each land use category.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

Exhibit “C” — Existing Development Approvals.

Exhibit “D” — Existing Land Use Regulations.

Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Depiction of Required Infrastructure Improvements Exhibit Exhibit “G” - Form of Plume Disclosure Letter

2. GENERAL PROVISIONS.

2.1 Binding Effect of Agreement. The Property is hereby made subject to this Agreement. Development of the Property is hereby authorized and shall be carried out only in accordance with the terms of this Agreement.

2.2 O
wnership of Property . OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 T
erm . The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
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(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) I n non- mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building permits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume. OWNER may wish to provide the attached Disclosure Letter (Exhibit G) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s Ci ty Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned; and (2) the payment of the applicable processing charge to cover the CI TY’s review and consideration of such sale, transfer or assignment. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

Notwithstanding the failure of any purchaser, transferee or assignee to execute the agreement required by Paragraph (b) of this Subsection 2.4.1, the burdens of this Agreement shall be binding upon such purchaser, transferee or assignee, but the benefits of this Agreement shall not inure to such purchaser, transferee or assignee until and unless such agreement is executed. The City Manager shall have the authority to review, consider and either approve, conditionally approve, or deny any proposed sale, transfer or assignment that is not made in compliance with this section 2.4. 204
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2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY wi th security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.3 Effect of Assignment and Release of Obligations . In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.

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

2. 4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
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(a) The lot has been finally subdivided and individually (and not in “bulk”) sold or leased (for a period longer than one year) to a member of the public or other ultimate user; and,
(b) A certificate of occupancy has been issued for a building on the lot, and the fees set forth under Section 4 of this Agreement have been paid.

2.5 Amendment or Cancellation of Agreement . This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement.

The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into t his Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate s uch proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.5.1 Amendment t o Reflect Consistency With Future Amendments to the Construction Agreement. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amendment to the Development Agreement to reflect any or all of such modifications.

2.6 Termination. This Agreement shall be deemed terminated and of no further effect upon the occurrence of any of the following events:
(a) Expiration of the stated term of this Agreement as set forth in Section 2.3.
(b) Entry of a final judgment setting aside, voiding or annulling the adoption of the ordinance approving this Agreement.
(c) The adoption of a referendum measure overriding or repealing the ordinance approving this Agreement.
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(d) Completion of the Project in accordance with the terms of this Agreement including issuance of all required occupancy permits and acceptance by CITY or applicable public agency of all required dedications.

Termination of this Agreement shall not constitute termination of any other land use entitlements approved for the Property. Upon the termination of this Agreement, no party shall have any further right or obligation hereunder except with respect to any obligation to have been performed prior to such termination or with respect to any default in the performance of the provisions of this Agreement which has occurred prior to such termination or with respect to any obligations which are specifically set forth as surviving this Agreement. Upon such termination, any public facilities and services mitigation fees paid pursuant to Section 4.2 of this Agreement by OWNER to CITY for residential units on which construction has not yet begun shall be refunded to OWNER by CITY.

2.7 Notices.
(a) As used in this Agreement, “notice” includes, but is not limited to, the communication of notice, request, demand, approval, statement, report, acceptance, consent, waiver, appointment or other communication required or permitted hereunder. (b) All notices shall be in writing and shall be considered given either: (i) when delivered in person, including, without limitation, by courier, to the recipient named below; or (ii) on the date of delivery shown on the return receipt, after deposit in the United States mail in a sealed envelope as either registered or certified mail with return receipt requested, and postage and postal charges prepaid, and addressed to the recipient named below. All notices shall be addressed as follows:

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Dave Bartlett
BrookCal Ontario LLC
3200 Park Center Drive, Suite 100
Costa Mesa, CA 92626
Phone: 714.200.1533

with a copy to:

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

with a copy to:

Tim Roberts
BrookCal Ontario LLC
3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Phone: 714.200.1550

(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of 207
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a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.1 Rights to Develop. Subject to the terms of this Agreement including the Reservations of Authority, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the Development Plan. The Project shall remain subject to all Subsequent Development Approvals required to complete the Project as contemplated by the Development Plan. Except as otherwise provided in this Agreement, the permitted uses of the Property, the density and intensity of use, the maximum height and size of proposed buildings, and provisions for reservation and dedication of land for public purposes shall be those set forth in the Development Plan.

3.2 E
ffect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations.

In connection with any Subsequent Development Approval, CITY shall exercise discretion in accordance with the same manner as it exercises its discretion under its police powers, including the Reservations of Authority set forth herein; provided however, that such discretion shall not prevent development of the Property for the uses and to the density or intensity of development set forth in this Agreement.

3.3 T
iming of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed.

Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca 1. 3 d 465, that the fa ilure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 I
nfrastructure Improvement Exhibit . Attached he reto as Exhibits “E” and “F” are a description and depiction, respectively, of the improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 R
equirement for Public Infrastructure Improvements. Development of the Property is contingent in part on the phasing of area- wide infrastructure improvements 208
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over which the OWNER has control. The issuance of building permits by CITY for Model Units and Production Units is, in general, contingent on OWNER’s completion of needed infrastructure improvements and the availability of improvements and services to serve the Property.

3.4.1 Attached hereto as Exhibit “ E” and Exhibit “F” are the description and depiction of the infrastructure improvements needed for the development of the Property (“the Infrastructure Improvement Exhibit”).

3.4.2 Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construc tion of a maximum number of twelve (12) Model Units, private common recreation facilities and sales facilities , CITY may issue a maximum of twelve (12 ) building permits for Model Units, private common recreation facilities and sales facilities. The plan to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Model Units and other facilities.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWN ER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing La nd Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority.

If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requir ement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.
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(a) Processin g fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals;

(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records an d any other matter of procedure;

(c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendm ents to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan;

(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety;

(e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan;

(f) Regulations that may conflict but to which the OWNER consents.

3.6.2 Subsequent Development Approvals. This Agreement shall not preven t CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development A pproval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 M
odification or Suspension by State or Federal Law . In the event that State or Federal laws or regulations, ena cted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or 210
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suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declarat ory relief (or other similar non- monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

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

3.7 P
ublic Works; Utilities . If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other ut ility service to the Project. As a further condition of development approval, OWNER shall contract with the CITY for CITY -owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements for Phase 1 and Phase 2, as described in Exhibit E and depicted in Exhibit F . OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the storm drain improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the storm drain improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units within Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the s torm drain improvements within Phase 2 , as described in Exhibit E and depicted in Exhibit F. 3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements for Phase 1 and Phase 2 as described in Exhibit E and depic ted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the street improvements for Phase 1 , as described in Exhibit E and depicted in Exhibit F. 211
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OWNER agrees to design, construct, and comp lete the street improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F.

In no event shall OWNER be issued occupancy for any Produc tion Unit within Phase 1 until the completion of the street improvements within Phase 2 , as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Property shall require the extension of water and recycled water uti lity improvements for Phase 1 and Phase 2 as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and r ecycled water improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F . OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction- related water uses including prior to, and during, any grading of the Property.

OWNER agrees to design, construct, and complete the water and recycled water improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OW NER be issued occupancy for any Production Unit within Phase 1 until the completion of the water and recycled water improvements within Phase 2 , as described in Exhibit E and depicted in Exhibit F.

3.7.4 OWNER agrees that development of the Property shall require the extension of sewer improvements for Phase 1 and Phase 2 , as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the sewer imp rovements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the sewer improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Pha se 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the sewer improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.5 OWNER agrees that development of the Property shall require the extension of fiber optic communications improvements for Phase 1 and Phase 2 as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the fiber optic improvements for P hase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until th e completion of the fiber optic improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.
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3.7.6 OWNER further acknowledges and agrees that if the Phase 2 infrastructure improvements, as described in Exhibit E and depicted in Exhibit F, are not completed prior to the request of occupancy for Phase 1 Production Units, then OWNER, in order to satisfy the condition of completion of the Phase 2 infrastructure improvements prior to the issuance of occupancy permits for Phase 1 Production Units, shall deposit funds into an escrow account equal to the cost for the Phase 2 improvements (amount subject to the sole discretion of the City Engineer). OWNER’s deposit does not alleviate the requirement for OWNER to construct and complete the Phase 2 infrastructure improvements. OWNER shall make their best reasonable efforts to receive right -of-way approvals from Southern California Edison and/or other agencies to complete the Phase 2 infrastructure improvements. OWNER shall provide periodic updates to the CITY every ninety (90) days, or upon written request from the CITY.

3.8 Acquisition of Offsite Provision of Real Property Interests . In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elect s to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.8.1 C
ITY Acquisition of Non- Construction Agreement Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections 3.8.1 and 3.8.2 shall control the acquisition of the necessary property interest(s) (“Non -Construction Agreement Offsite Property”).

If the OWNER is unable to acquire such Non- Construction Agreement Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non- Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non- Construction Agreement Of fsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, initiate proceedings utilizing its power of eminent domain to acquire that Non- Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non- Construction Agreement Offsite Property, subject to the conditions set forth in this Section 3.8. The CITY and OWNER acknowledge that the timelines set forth in this Section 3.8.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non-Construction Agreement Offsite Property. CITY agrees to 213
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use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.8.2 Owner’s Optio n to Terminate Proceedings . CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Non- Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, a t its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non -Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings.

CITY shall provide written notice to OWNER no later than fifteen (15) d ays prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non- Construction Agreement Offsite Property.

At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non-C onstruction Agreement Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possess ion with respect to the Non-Construction Agreement Offsite Property.

3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regula tions of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 T
entative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY’s subdivision or dinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Prope rty, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement.; The CITY’s City Council may, in its discretion, extend any such map for an additional peri od of up to five (5) years beyond its original term, so long as the subdivider files a written request for an extension with the City prior to the expiration of the initial five (5) year term.

4. PU
BLIC BENEFITS.
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4.1 Intent. The parties acknowledge and agree that development of the Property will result in substantial public needs that will not be fully met by the Development Plan and further acknowledge and agree that this Agreement confers substantial private benefits on OWNER that should be balanced by commensurate public benefits. Accordingly, the parties intend to provide consideration to the public to balance the private benefits conferred on OWNER by providing more fully for the satisfaction of the public needs resulting from the Project.

4.2 De
ve lopment Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing c ontained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of exis ting Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 T
ime of Payment. The Development I mpact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable residential or other unit, except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.

4.2.3 P
arkland and Quimby Act Fees . Pursuant to the General Plan (Ontario Plan) Goal PR1, Policy PR1- 5 (achievement of a park standard of 5 acres of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) ac res per 1,000 of projected population without credit, reimbursement, offset or consideration from City. Such areas shall either be dedicated to the City or transferred to a homeowners ’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non- public recreation facilities such as private recreational clubhouses or pool facilities.

Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal to two (2) acres per 1,000 projected population, OWNER shall pay a fee in- lieu equal to the per acre estimated costs of acquisition and development of parkland i n the Cit y’s Development Impact Fee for the calculated park acreage deficiency , at the time the fee becomes due and payable to the City. Such in- lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such 215
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two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standards and is open to the public generally, shall entitle OWNER to a cr edit towa rd its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordinance and/or resolution (collectively “ Quimby Act Obligations ”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled t o have th e City acquire such developed and publicly available parks as Non- Program Interests in accordance with Section 4.3.3 below.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phas ing of th e areawide infrastructure construction within the New Model Colony will be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all tentative tract map conditions . Unless otherwise specified in the Sub division Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational prior to, and as a conditi on preced ent to, OWNER requesting and CITY’s granting of the first building permit for P roduction Units for each such Tract Map.

All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Tract Map conditions for Tract Map No. 20529.

4.3.2 C
onstruction of DIF Program Infrastructure (Construction Agreement) . To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construction Agreement and any amendments thereto.

4.3.3 C
onstruction of DIF Program Infrastructure (Non- Construction Agreement). To the extent OWNER is required to const ruct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not included the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitation on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.4 A
ffordable Housing Requirement .
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4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the OWNER’s total approved residential units within the Project, that are affordable to very low, low and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.3.2.1 through 4.3.2.1. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Red evelopment Law (California Health and Safety Code Section 33000 et seq.).

4.4.2 A
ffordability Spread. Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections

4.4.2.1 or 4.4.2.2 respectively, thirty percent (30%) shall be available to very low income, thirty percent (30%) shall be available to low income and forty percent (40%) shall be available to moderate income households. “ Households” shall be as defined by California Health and Safety Code Section 50053.

4.4.2.1 N
ew Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwel ling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other units constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Project.

Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of units, based on the number of building permits for non- restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units.

If OWNER elects the option of constructing new affordable units, a detailed Affordable Housing Agreement specifying terms for the allowable monthly housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. The Affordable Housing Agreement shall hold a recorded priority position senior to any other non- statutory lien or encumbrance affecting the unit.

4.4.2.2 Rehabilitation .

If OWNER elects to fully or partially satisfy the
affordable housing requirement by the substantial rehabilitation of existing residential units in the City, it shall substantially rehabilitate and restrict the 217
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affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided elsewhere within the City. The rehabilitation work shall be substantial and of high quality and shall also address any deferred property maintenance issues on the property. “Substantial rehabilitation” shall mean rehabilitated multi -family rented dwelling units with three or more units and the value of the rehabilitation constitutes 25 percent of the after rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A)(iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of existing housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and mai ntenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the City in order to ensure the faithful completion of such required percentage of rehabilitation.

4.4.2.3 In -Lieu Fee . If OWNER has not fully complied with the requirements of Section 4.3.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “ Affordability In - Lieu Fee”. If OWNER has not provi ded any affordable residential units by construction or rehabilitation, the Affordability In- Lieu fee shall be equal to Three Dollars Twelve Cents ($ 3.12) per square foot of residential development within OWNER’s Project or, if pre- paid as set forth below, Two Dollars Seventy-Four Cents ($ 2.74) per square foot of residentia l development within OWNER’s Project. If OWNER has partially complied with the requirements of Section 4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In- lieu Fee shall be recalculated and reduced in consideration of the number and type of affordable units provided. The Affordability In- Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building per mit within OWNER’s Project based on the square footage of the residential unit for which such building permit is sought; provided however that OWNER may, at OWNER’s election, pre- pay such Affordability In- Lieu Fee by paying such Affordability In- Lieu Fee w ithin thi rty (30) days following the earliest discretionary approval by the City for OWNER’s Project, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional us e permit, or resolution of intention to form any public financing mechanism.

The Three Dollars Twelve Cents Cents ($3.12) and the Two Dollars Seven 218
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Cents ($2.74) per square foot amounts shall automatically be increased annually, commencing on July 1, 2023, and automatically each July 1 thereafter. Such adjustment shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year. The pre- paid Affor dability In-Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted within the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In - Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.

4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit for a ny affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for -sale units and fifty -five (55) years for rentals.

For rental units, base rents shall be established by the City and rental adjustments required by the City shall be performed on an annual basis. In addition, the Affordable Housing Agreement shall impose maximum occupancy limits of 2 occupants per bedroom plus 1 additional occupant per dwelling unit, and a requirement for the owner or tenant to properly maintain each dwelling unit.

4.4.2.5 T
ransfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non- profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one- tenth of one percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enfor ceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.

4.5 S
chools Obligations .

4.5.1 Written Evidence of Compliance with Schools Obligations.

OWNER shall, either through joint or individual agreements between OWNER and the applicable school district(s), shall satisfy its new school obligations. The new school obligations for the Mountain View School District in the Ontario Ranch area have been projected to include the acquisition or dedication of school sites for, and construction of, up to eight (8) schools. Of these eight (8) 219
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schools, six (6) are to be elementary (K -5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Union High School District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school.

The new school obligations for the applicable school district shall be me t by a combination of the following: (1) designating and dedicating school site(s) within the Property as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school district that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school district(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capac ity Availability, or any combination thereof, presented by such OWNER , without liability to the City. To the extent that a joint mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mit igation a greement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.

4.6 Public Services Funding Fee.

4.6.1 Requirement for Payment of Public Services Funding Fee. In order to ensure that the adequate provision of public services, including without limitation, police, fire and other public safety services, are available to the residents of each Project in a timely manner, OWNER shall pay to CITY a “ Public Services Funding Fee .” The Public Services Funding Fee shall apply to residential and non-residential uses as set forth below.

4.6.2 P
ublic Services Funding Fee Amount . OWNER shall pay a Public Services Funding fee in t he total amount of Two Thousand Three Hundred Seventeen dollars ($2,317.00) per residential dwelling unit. The Public Services Funding Fee shall be paid in one (1) installment within one hundred eighty (180) calendar days after the effective date of the Development Agreement or in two (2) installments, at OWNER’s option, as follows:

4.6. 2.1 First Insta llment (Residential uses) . The First Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential dwelling unit. The First Installment shall be based upon the “ Maximum D evelopment Density” of the OWNER Project, as defined in Section 3.7.2.3 of the First Amended and Restated Construction Agreement. The First Installment shall be due and payable thirty (30) days following the effective date of the Development Agreement.

If the First installment amount is not paid for all residential dwelling units 220
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within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 20 23, the amount of the First Installment sh all be increased. Such increase shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year . Additionally, the amount shall be further increased automatically by the percentage increase in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) on each January 1 thereafter.

4.6.2.2 Second Installment (Residential Uses). The Second Installment of the Public Se rvices Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San B ernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1 st of each
year, beginning on January 1, 2023. O WNER may exercise the option to pay the Second Installment amount for all residential units, a portion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Secon d Installment amount is automatically increased.

4.6. 2.3 Single Installment (Non- residential Uses) . A single installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Cents ($. 70) per square foot of non- residential buildings. The single installment for non- residential uses shall be due and payable prior to the issuance of the building permit for a non- residential building. The amount of the Single Installment for non- residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San B ernardino - Ontario, CA), (December 2017=100) over the preceding year on January 1 st of each
year, beginning on January 1, 2023 . OWNER may exercise the option to pay any single installment amounts for the remainder of the non- residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.7 Net MDD/Water Availability Equivalents.

4.7.1 Assigned Net MDD/ Water Avail ability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approv e a final tract map or issue building permits or certificates of 221
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occupancy for the area of development within the New Model Colony served by the water system improvements funded by NMC Builders LLC, except to the bearer of an Assignment of Net MDD Water Availability.

4.7.2 Use of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall be based upon water demand factors and assumptions listed in Exhibit C -2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.

4.7.3 R
equirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to an OWNER’s Project, including those relating to design and construction of master -planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.

4.7.4 E
ffectiveness of Agreement . Notwithstanding anything set forth in this Agreement, CITY and OWNER each acknowledge, confirm, and agree that (i) the CITY approval of this Agreement and (ii) the effectiveness of this Agreement, in each case, are conditioned upon OWNER’s admission to NMC Builders as a “Member” (if not already a Member) thereof pursuant to the terms and conditions of the operating agreement of NMC Builders within thirty ( 30) days following the Effective Date of this Agreement. OWNER’S failure to maintain membership in NMC Builders LLC is and shall be a Default under this Agreement.

4.8 S
torm Water Capacity Availability.

4.8.1 Requirement for Storm Water Treatment Capacity Availability . OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserved in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.6 of this Agreement.

4.8.2 Use of Storm Water Treatment Capacity Availability. The amount of Storm Water Treatment Capacity Availability required for the issuance of a grading permit to OWNER shall be based upon the Net Residential Acreage of the area to be graded regardless of the corresponding use.

4.8.3 Requirement for other Storm Water Improvements . The Certi ficate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any other conditions applicable to a particular development project, including those relating to on- site water 222
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treatment, water quality, connection to the storm water collection system, or other public infrastructure requirements.

4.9 Maintenance of Open Space . OWNER shall provide for the ongoing maintenance of all park, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and restrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.

4.10 C
ompliance with Public Benefits Requirements .

4.10.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4. 10, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project- related building permits, certificates of occupancy, or discretionary approvals, without liability.

5. F
INANCING OF PUBLIC IMPROVEMENTS .

5.1 Financing Mechanism(s) . In accordance with the Memorandum of Agreement between the CITY and NMC Builders , CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a financing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of publ ic infras tructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provisions of the Memorandum of Agreement between CITY and NMC Builders LLC .

Notwithstanding such reimbursements and acquisitions, OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,443.71 per Single Family Detached Dwelling Unit, $ 1,251.15 per Multiple- Family Dwelling Unit , $ 1,048.96 per Gated Apartment Comm unity Dwelling Unit, and $.27 per square foot for Non- Residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year , unless otherwise modified by the CITY . CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to r estrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public 223
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financing mechanism within the Property on the OWN ER mitigating all Project -related impacts to the applicable school district(s) as required by such school district(s).

Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment distric t or othe r public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to finance City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD , assessment district or other public financing mechanism within the Property, shall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended from time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this A greement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initiation of Periodic Review . The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, alo ng with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non- compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6. 1.6. Iss uance of a notice of continuing compliance may be issued by the City Manager or his designee.

6.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the fol lowing ways:

(1) Recommendation of the Planning staff;

(2) Affirmative vote of at least four (4) members of the Planning Commission; or

(3) Affirmative vote of at least three (3) members of the City Council.
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6.1.3 Notice of Special Review . T he City M anager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.1.4 Public Hearing. The Planning Commission shall conduct a hearing at which the OWNER must demonstrate good faith compliance with the terms of this Agreement. The burden of proof on this issue is upon the OWNER.

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

6.1.6 Procedure Upon Findings.

(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded.

(b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Pl anning Commission may recommend to the City Council to modify or terminate this Agreement.

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

6.2 Proceedings Upon Modification or Termination. If, upon a finding under Section 6.1.6(b), the CITY determines to proceed with modification or termination of this Agreement, the CITY shall give notice to the property OWNER of its intention so to do.

The notice shall contain:

(a) The time and place of the hearing;

(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be 225
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heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decisi on of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compli ance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Plannin g Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default.

The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certi ficate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

8.1 Remedies in General. It is acknowledged by the parties that CITY would not have entered into this Agreement if it were to be liable in damages under this Agreement, or with respect to this Agreement or the application thereof.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWN ER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 226
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8.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other non- monetary relief are particularly appropriate remedies for the enforcement of this Agreement and should be available to all parties for the following reasons:
(a) Money damages are unavailable against CITY as provided in Section 8.1 above.
(b) Due to the size, nature and scope of the project, it may not be practical or possible to restore the Property to its natural condition once implementation of this Agreement has begun. After such implementation, OWNER may be foreclosed from other choices it may have had to utilize the Property or portions thereof. OWNER has invested significant time and resources and performed extensive planning and processing of the Project in agreeing to the terms of this Agreement and will be investing even more significant time and resources in implementing the Project in reliance upon the terms of this Agreement, and it is not possible to determine the sum of money which would adequately compensate OWNER for such efforts.

8.3 Release. Except for nondamage remedies, including the remedy of specific performance and judicial review as provided for in Section 6.5, OWNER, for itself, its successors and assignees, hereby releases the CITY, its officers, agents and employees from any and all claims, demands, actions, or suits of any kind or nature arising out of any liability, known or unknown, present or future, including, but not limited to, any claim or liability, based or asserted, pursuant to Article I, Section 19 of the California Constitution, the Fifth Amendment of the United States Constitution, or any other law or ordinance which seeks to impose any other liability or damage, whatsoever, upon the CITY because it entered into this Agreement or because of the terms of this Agreement.

8.4 T
ermination or Modification of Agreement for Default of OWNER . Subject to the provisions contained in Subsections 6.2 and 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify thi s Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8.5 T
ermination of Agreement for Default of CITY . OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default 227
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and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions neces sary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9. THIRD PARTY LITIGATION.

9.1 General Plan Litigation. CITY has determined that this Agreement is consistent with its Comprehensive General Plan, as such General Plan exists as of the Effective Date (“General Plan”), and that the General Plan meets all requirements of law. OWNER has reviewed the General Plan and concurs with CITY’s determination.

CITY shall have no liability in dam ages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 T
hird Party Litigation Concerning Agreement . OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmle ss CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER s hall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

9.3 I
ndemnity . In addition to the provisions of 9.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, fo r property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limite d to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

9.4 E
nviro nment Ass urances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest , successors, assigns and independent contractors for any 228
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violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and gr oundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

9.5 Reservation of Rights. With respect to Sections 9.2, 9.3 and 9.4 herein, CITY reserves the right to either (1) approve the attorney(s) which OWNER selects, hires or otherwise engages to defend CITY hereunder, which approval shall not be unreasonably withheld, or (2) conduct its own defense, provided, however, that OWNER shall reimburse CITY forthwith for any and all reasonable expenses incurred for such defense, including attorneys’ fees, upon billing and accounting therefor.

9.6 S
urv ival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.

10. M ORTGAGEE PROTECTION .

The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s s ole discr etion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY wil l not unr easonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreem ent, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 229
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(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY ’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

11. MISCELLANEOUS PROVISIONS.

11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the part ies to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for f ailure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

11.2 E
ntire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

11.3 S
everability . If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of t his Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

11.4 I
nterpretation and Governing Law . This A greement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the 230
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State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives an d purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

11.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

11.6 S
ingular and Plural. As used herein, the singular of any word includes the plural.

11.7 J oint and Several Obligations. Subject to section 2.4, if at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners .

Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or o therwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

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

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

11.10 N
o Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

11.11 F
orce Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control, (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the writ ten agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years. 231
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11.12 Mutual Covenants. The covenants contained herein are mutual covenants and also constitute conditions to the concurrent or subsequent performance by the party benefited thereby of the covenants to be performed hereunder by such benefited party.

11.13 S uccessors in Interest . The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants runnin g with th e land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

11.14 C
ounterparts . This Agreement may be executed by the parties in counterparts, which counterparts shall be construed together and have the s ame effect as if all of the parties had executed the same instrument.

11.15 J urisdiction and Venue. Any action at law or in equity arising under this Agreement or brought by a party hereto for the purpose of enforcing, construing or determining the validity of any provision of this Agreement shall be filed and tried in the Superior Court of the County of San Bernardino, State of California, and the parties hereto waive all provisions of law providing for the filing, removal or change of venue to any other court.

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

11.17 F
urther Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of the CITY.

11.18 Em
i nent Domain . No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. 232
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11.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the deli very to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successor s hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

11.20 E
stoppel Certificate . Within thirty (30) bu siness da ys following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified ( date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) def aults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 11.20 prior to CITY’s issuance of such certificates.

11.21 A
uthority to Execute . The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the a uthority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

IN WITNESS WH EREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT NO. PDA21-014

“OWNER”

BROOKCAL ONTARIO LLC, a Delaware
limited liability company

By:_______________________________
Name: David E. Bartlett
Title: Vice President
Date: ___________________

"CITY"

CITY OF ONTARIO

By:

Scott Ochoa
City Manager

Date: ___________________

ATTEST:

City Clerk, Ontario

APPROVED AS TO FORM:

BEST BEST KRIEGER, LLP

City Attorney
234
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39 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me,______________________________________, Date Insert Name and Title of the Officer

personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature________________________________
Signature of Notary Public

Place Notary Seal Above
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 235
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40 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )

On _________________, 20_____, before me ,
Date Insert Name and Title of the Officer

personally appeared
Name(s) of Signer(s)
___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature________________________________
Signature of Notary Public

Place Notary Seal Above

A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 236
46700.90310\40741290.1

41 EXHIBIT "A"

TO DEVELOPMENT AGREEMENT

Legal Description of Property

REAL PROPERTY IN THE CITY OF ONTARIO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:

BEING A PORTION OF PARCEL 2 OF PARCEL MAP NO. 16568, AS PER MAP FILED IN PAGES 24 AND 25 IN PARCEL MAP BOOK NO. 204, FILED IN THE

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

BEGINNING AT THE NORTHWEST CORNER OF LOT 6 OF TRACT MAP NO. 20134, AS PER MAP FILED IN BOOK 357, PAGES 23 THROUGH 33,

INCLUSIVE, OF TRACT MAPS, IN THE OFFICE OF THE COUNTY

RECORDER OF SAID COUNTY, SAID CORNER BEING ON THE SOUTHERLY LINE OF SAID PARCEL MAP NO. 16568; THENCE EASTERLY ALONG SAID SOUTHERLY LINE NORTH 89°37’37” EAST, A DISTANCE OF 355.00 FEET,

THENCE NORTH 00°11’36” WEST, A DISTANCE OF 20.60 FEET, TO THE BEGINNING OF A TANGENT 1385.00 FOOT RADIUS CURVE, CONCAVE WESTERLY;

THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°13’59”,

A LENGTH OF

78.15 FEET;

THENCE NORTH 03°25’35” WEST, A DISTANCE OF 99.85 FEET, TO THE BEGINNING OF A TANGENT 615.00 FOOT RADIUS CURVE, CONCAVE EASTERLY;

THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°14’00”,

A LENGTH OF

34.71 FEET;

THENCE NORTH 00°11’35” WEST, A DISTANCE OF 761.32 FEET, TO THE NORTHERLY LINE OF SAID PARCEL 2;

THENCE ALONG SAID NORTHERLY LINE, SOUTH 89°58’40” WEST, A DISTANCE OF 385.00 FEET, TO THE EASTERLY LINE OF PARCEL 1 OF SAID PARCEL MAP NO.16568;
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42 EXHIBIT "A" CONTINUED

THENCE SOUTHERLY ALONG SAID EASTERLY LINE, SOUTH 00°11’35”

EAST, A DISTANCE OF
946.80 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL 1;

THENCE WESTERLY ALONG SAID SOUTHERLY LINE, SOUTH 89°37’37” WEST, A DISTANCE OF 1168.19 FEET, TO THE CENTERLINE OF HAVEN AVENUE, AS SHOWN ON SAID PARCEL MAP NO. 16568:

THENCE SOUTHERLY ALONG SAID CENTERLINE, SOUTH 00°11’36” EAST,

A DISTANCE OF

50.00 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL 2;

THENCE EASTERLY ALONG SAID SOUTHERLY LINE, NORTH 89°37’37” EAST, A DISTANCE OF 1207.01 FEET, TO THE NORTHWEST CORNER OF LOT 6 OF TRACT MAP NO. 20134 AND THE POINT OF BEGINNING.

CONTAINING:
442,924 SQUARE FEET / 10.168 ACRES GROSS, MORE OR LESS. 439,824 SQUARE FEET / 10.097 ACRES NET, MORE OR LESS

SUBJECT TO ALL COVENANTS, CONDITIONS, RESERVATIONS,
RESTRICTIONS, RIGHT-OF- WAY AND EASEMENTS OF RECORD, IF ANY.

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43 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT

Map showing Property and its location

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44 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT

Existing Development Approvals

On October 23, 2007 the Planning Commission:
a) Issued Resolution No. PC07-125 recommending City Council certification of the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Issued Resolution No. PC07-127 recommending to City Council approval of the Rich-Haven Specific Plan (File No. PSP05-004).

On December 4, 2007, the City Council:
a) Issued Resolution No. 2007-145 certifying the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Adopted Ordinance No. 2884 approving the Rich-Haven Specific Plan.

On February 23, 2016, the Planning Commission:
a) Issued Resolution No. PC16-003 recommending City Council adoption of an Addendum to the Rich-Haven EIR.
b) Issued Resolution PC16-004 recommending approval of the Rich-Haven Specific Plan Amendment (File No. PSPA16-001).

On March 15, 2016, the City Council:
a) Issued Resolution No. 2016-024 for the adoption of an Addendum (File No. PSPA16-001) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2016-025 approving an Amendment (File No.

PSPA16-001) to the Rich-Haven Specific Plan.

On January 23, 2018, the Planning Commission:
a) Issued Resolution No. PC18-014 recommending City Council adoption of an Addendum to the Rich-haven EIR.
b) Issued Resolution No. PC18-015 recommending to City Council adoption of the Rich-Haven Specific Plan Amendment (File No. PSPA16-005).

On February 20, 2018, the City Council:
a) Issued Resolution No. 2018-017 for the adoption of an Addendum (File No. PSPA16-005) to the Rich-Haven Specific Plan EIR.
b) Issued Resolution No. 2018-018 approving an Amendment (File No.

PSPA16-005) to the Rich-Haven Specific Plan.

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45 EXHIBIT "D"

TO DEVELOPMENT AGREEMENT

Existing Land Use Regulations

These documents are listed for reference only:

1. The Rich -Haven Speci fic Plan (File No. PSP05 -004) Environmental Impact Report, Resolution No. 2007-145.

2. The Rich-Haven Specific Plan (File No. PSP05-004), Ordinance No. 2884.

3. Addendum to the Rich- Haven Specific Plan (File No. PSPA16 -001) Environmental Impact Report, Resolution No. 2016-024.

4. Amendment to the Rich -Haven Specific Plan (File No. PSPA16-001), Resolution No. 2016-025.

5. Addendum to the Rich- Haven Specific Plan (File No. PSPA16 -005) Environmental Impact Report, Resolution No. 2018-017.

6. Amendment to the Ri ch-Haven Specific Plan (File No. PSPA16 -005), Resolution No. 2018-018.

7. City of Ontario Municipal Code
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks & Recreation
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46 EXHIBIT "E"

TO DEVELOPMENT AGREEMENT

Description of Required Improvements

OWNER shall design, construct, and complete all improvements including but not limited to sewer, water, recycled water, storm drain, fiber, and street improvement s necessary to serve the Property, prior to the request of any Production Units.

A) PHASE 1 IMPROVEMENTS include but not limited to the street, water, recycled water, sewer, storm drain, fiber optic, and traffic signal improvements along Twinkle Avenue.

B) PHASE 2 IMPROVEMENTS include but not limited t o the street, water, recycled water, sewer, stor m drain, fiber opti c, and traffic signal improvements, north on Twinkle Avenue and west along Chino Avenue to Haven Avenue.

C) If the P HASE 2 IMPROVEMENTS are not completed prior to the request of occupancy for Phase 1 Production Units, then OWNER shall deposit funds into an escrow account equal to the cost for the Phase 2 improvements, subject to the sole discretion of the City Engineer.

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47 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT

Depiction of Required Infrastructure Improvements

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48 EXHIBIT “F” CONTINUED

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49 Exhibit “G”

TO DEVELOPMENT AGREEMENT

Form of Plume Disclosure Letter

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ORDINANCE NO.________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA22-001, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND BROOKCAL
ONTARIO LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP NO. 20529 (FILE NO.

PMTT22-010), AN 11.11 ACRE PROPERTY GENERALLY LOCATED ON THE EAST SIDE OF TWINKLE AVENUE APPROXIMATELY 350 FEET
SOUTH OF FUTURE CHINO AVENUE, WITHIN PLANNING AREAS 4A, 4B, AND 4C (RESIDENTIAL – SFD/ATTACHED) LAND USE DISTRICTS

OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-161-14.

WHEREAS, BrookCal Ontario, LLC., ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA22-001, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 11.11 acres of land generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan; and
WHEREAS, the Applicant has submitted a Tentative Tract Map 20529 (File No.

PMTT22-010) to subdivide approximately 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes; and
WHEREAS, the environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and
WHEREAS, the Project is exempt from CEQA pursuant to a categorical exemption (listed in CEQA Guidelines Article 19, commencing with Section 15300) and the application of that categorical exemption is not barred by one of the exceptions set forth in CEQA Guidelines Section 15300.2; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject Application; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport ("ONT"), which encompasses lands within parts of San Bernardino, 246
Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (ALUCP), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on October 25, 2022, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC22-062 recommending the City Council approve the Application; and
WHEREAS, on November 15, 2022, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

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

SECTION 1. Environmental Determination and Findings. As the recommending authority for the Project, the Planning Commission has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the Planning Commission finds as follows:
(1) The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and
(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and (3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and
247
(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.

SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the Planning Commission, and the specific findings set forth in Section 1, above, the Planning Commission finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or (d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending body for the Project, the PLANNING COMMISSION finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the Project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the Project site is not one of the properties in the Housing Element Sites contained in Table B-1 (Housing Element Sites Inventory) of the Housing Element Technical Report. 248
SECTION 5. Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2- 2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the DAB, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP; and
SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(a) The Development Agreement applies to approximately 11.11 acres of land generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan; and (b) The Development Agreement establishes parameters for the development of the Planning Areas 4A, 4B, and 4C Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and
(c) The Development Agreement grants the Owner a vested right to develop Tentative Tract Map 20529 (File No. PMTT22-010) as long as the Owner complies with the terms and conditions of the Specific Plan and EIR. Tentative Tract Map 20529 is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, and proposes to subdivide 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family 249
dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes; and
(d) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (e) The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(f) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(g) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No.

PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007; and (h) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6. City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 4, above, the City Council hereby APPROVES the herein described Development Agreement (File No. PDA22-001), attached hereto as "Attachment A," and incorporated herein by this reference.

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

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

SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted 250
this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

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

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

PASSED, APPROVED, AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
251

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

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

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

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

SHEILA MAUTZ, CITY CLERK
(SEAL)
252
ATTACHMENT A:

File No. PDA22-001

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
BrookCal Ontario LLC.,
a Delaware limited liability company
(Development Agreement to follow this page)
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RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
BrookCal Ontario LLC
a Delaware limited liability company
_________________________, 2022
San Bernardino County, California
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DEVELOPMENT AGREEMENT NO. PDA22-001
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2022 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and BrookCal Ontario, LLC., a Delaware limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in that Rich-Haven Specific Plan (State Clearinghouse No. 2006051081 (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Rich-Haven Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 255
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1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

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

1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all amendments thereto, and “Construction Agreement Amendment” means that First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21st day of August 2012.
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1.1.4 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

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

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

1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government 257
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Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.

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

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

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

1.1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
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1.1.15 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.16 “Model Units” means a maximum of twelve (12) model units, private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production Units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.

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

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

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

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

1.1.23 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as described in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions listed in the Construction Agreement Amendment.

1.1.24 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
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1.1.25 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

Exhibit “C” — Existing Development Approvals.

Exhibit “D” — Existing Land Use Regulations.

Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Depiction of Required Infrastructure Improvements Exhibit Exhibit “G” - Form of Plume Disclosure Letter

2. GENERAL PROVISIONS.

2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
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(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) In non-mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building permits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume. OWNER may wish to provide the attached Disclosure Letter (Exhibit G) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned; and (2) the payment of the applicable processing charge to cover the CITY’s review and consideration of such sale, transfer or assignment. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.

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

2.4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
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2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement.

The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.5.1 Amendment to Reflect Consistency With Future Amendments to the Construction Agreement. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amendment to the Development Agreement to reflect any or all of such modifications.

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Dave Bartlett
BrookCal Ontario LLC
3200 Park Center Drive, Suite 100
Costa Mesa, CA 92626
Phone: 714.200.1533
with a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
with a copy to:

Tim Roberts
BrookCal Ontario LLC
3200 Park Center Drive, Suite 1000
Costa Mesa, CA 92626
Phone: 714.200.1550
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of 264
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a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations.

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed.

Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and “F” are a description and depiction, respectively, of the improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 Requirement for Public Infrastructure Improvements. Development of the Property is contingent in part on the phasing of area-wide infrastructure improvements 265
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3.4.1 Attached hereto as Exhibit “E” and Exhibit “F” are the description and depiction of the infrastructure improvements needed for the development of the Property (“the Infrastructure Improvement Exhibit”).

3.4.2 Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construction of a maximum number of twelve (12) Model Units, private common recreation facilities and sales facilities, CITY may issue a maximum of twelve (12) building permits for Model Units, private common recreation facilities and sales facilities. The plan to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Model Units and other facilities.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority.

If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.
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3.6.1 Limitations, Reservations and Exceptions. Notwithstanding any other provision of this Agreement, the CITY shall not be prevented from applying new rules, regulations and policies upon the OWNER, nor shall a development agreement prevent the CITY from denying or conditionally approving any subsequent development project application on the basis of such new rules, regulations and policies where the new rules, regulations and policies consist of the following:
(a) Processing fees by CITY to cover costs of processing applications for development approvals or for monitoring compliance with any development approvals;
(b) Procedural regulations relating to hearing bodies, petitions, applications, notices, findings, records and any other matter of procedure;
(c) Regulations, policies and rules governing engineering and construction standards and specifications applicable to public and private improvements, including all uniform codes adopted by the CITY and any local amendments to those codes adopted by the CITY; provided however that, OWNER shall have a vested right to develop the Property in accordance with, and to the extent of, the standards and specifications that are expressly identified in the Specific Plan;
(d) Regulations that may conflict with this Agreement and the Development Plan but that are reasonably necessary to protect the residents of the project and/or of the immediate community from a condition perilous to their health or safety;
(e) Regulations that do not conflict with those rules, regulations and policies set forth in this Agreement or the Development Plan; (f) Regulations that may conflict but to which the OWNER consents.

3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or 267
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suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

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

3.7 Public Works; Utilities. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Project. As a further condition of development approval, OWNER shall contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements for Phase 1 and Phase 2, as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the storm drain improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the storm drain improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units within Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the storm drain improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F. 3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements for Phase 1 and Phase 2 as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the street improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. 268
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OWNER agrees to design, construct, and complete the street improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F.

In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the street improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Property shall require the extension of water and recycled water utility improvements for Phase 1 and Phase 2 as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and recycled water improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction- related water uses including prior to, and during, any grading of the Property.

OWNER agrees to design, construct, and complete the water and recycled water improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the water and recycled water improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.4 OWNER agrees that development of the Property shall require the extension of sewer improvements for Phase 1 and Phase 2, as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the sewer improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the sewer improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the sewer improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.5 OWNER agrees that development of the Property shall require the extension of fiber optic communications improvements for Phase 1 and Phase 2 as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the fiber optic improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the fiber optic improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.
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3.7.6 OWNER further acknowledges and agrees that if the Phase 2 infrastructure improvements, as described in Exhibit E and depicted in Exhibit F, are not completed prior to the request of occupancy for Phase 1 Production Units, then OWNER, in order to satisfy the condition of completion of the Phase 2 infrastructure improvements prior to the issuance of occupancy permits for Phase 1 Production Units, shall deposit funds into an escrow account equal to the cost for the Phase 2 improvements (amount subject to the sole discretion of the City Engineer). OWNER’s deposit does not alleviate the requirement for OWNER to construct and complete the Phase 2 infrastructure improvements. OWNER shall make their best reasonable efforts to receive right-of-way approvals from Southern California Edison and/or other agencies to complete the Phase 2 infrastructure improvements. OWNER shall provide periodic updates to the CITY every ninety (90) days, or upon written request from the CITY.

3.8 Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.8.1 CITY Acquisition of Non-Construction Agreement Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections 3.8.1 and 3.8.2 shall control the acquisition of the necessary property interest(s) (“Non-Construction Agreement Offsite Property”).

If the OWNER is unable to acquire such Non-Construction Agreement Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non- Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non-Construction Agreement Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, initiate proceedings utilizing its power of eminent domain to acquire that Non- Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non-Construction Agreement Offsite Property, subject to the conditions set forth in this Section 3.8. The CITY and OWNER acknowledge that the timelines set forth in this Section 3.8.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non-Construction Agreement Offsite Property. CITY agrees to 270
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3.8.2 Owner’s Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Non-Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non-Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings.

CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non-Construction Agreement Offsite Property.

At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non-Construction Agreement Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Non-Construction Agreement Offsite Property.

3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 Tentative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY’s subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement.; The CITY’s City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond its original term, so long as the subdivider files a written request for an extension with the City prior to the expiration of the initial five (5) year term.

4. PUBLIC BENEFITS.
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4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 Time of Payment. The Development Impact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable residential or other unit, except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.

4.2.3 Parkland and Quimby Act Fees. Pursuant to the General Plan (Ontario Plan) Goal PR1, Policy PR1-5 (achievement of a park standard of 5 acres of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) acres per 1,000 of projected population without credit, reimbursement, offset or consideration from City. Such areas shall either be dedicated to the City or transferred to a homeowners’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non-public recreation facilities such as private recreational clubhouses or pool facilities.

Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal to two (2) acres per 1,000 projected population, OWNER shall pay a fee in-lieu equal to the per acre estimated costs of acquisition and development of parkland in the City’s Development Impact Fee for the calculated park acreage deficiency, at the time the fee becomes due and payable to the City. Such in-lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such 272
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two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standards and is open to the public generally, shall entitle OWNER to a credit toward its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordinance and/or resolution (collectively “Quimby Act Obligations ”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled to have the City acquire such developed and publicly available parks as Non-Program Interests in accordance with Section 4.3.3 below.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the areawide infrastructure construction within the New Model Colony will be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all tentative tract map conditions. Unless otherwise specified in the Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of the first building permit for Production Units for each such Tract Map.

All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Tract Map conditions for Tract Map No. 20529.

4.3.2 Construction of DIF Program Infrastructure (Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construction Agreement and any amendments thereto.

4.3.3 Construction of DIF Program Infrastructure (Non-Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not included the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitation on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.4 Affordable Housing Requirement.
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4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the OWNER’s total approved residential units within the Project, that are affordable to very low, low and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.3.2.1 through 4.3.2.1. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.).

4.4.2 Affordability Spread. Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections

4.4.2.1 New Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwelling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other units constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Project.

Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of units, based on the number of building permits for non-restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units.

4.4.2.2 Rehabilitation. If OWNER elects to fully or partially satisfy the affordable housing requirement by the substantial rehabilitation of existing residential units in the City, it shall substantially rehabilitate and restrict the 274
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affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided elsewhere within the City. The rehabilitation work shall be substantial and of high quality and shall also address any deferred property maintenance issues on the property. “Substantial rehabilitation ” shall mean rehabilitated multi-family rented dwelling units with three or more units and the value of the rehabilitation constitutes 25 percent of the after rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A)(iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of existing housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the City in order to ensure the faithful completion of such required percentage of rehabilitation.

4.4.2.3 In-Lieu Fee. If OWNER has not fully complied with the requirements of Section 4.3.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “ Affordability In- Lieu Fee”. If OWNER has not provided any affordable residential units by construction or rehabilitation, the Affordability In-Lieu fee shall be equal to Three Dollars Twelve Cents ($3.12) per square foot of residential development within OWNER’s Project or, if pre-paid as set forth below, Two Dollars Seventy-Four Cents ($2.74) per square foot of residential development within OWNER’s Project. If OWNER has partially complied with the requirements of Section 4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In-lieu Fee shall be recalculated and reduced in consideration of the number and type of affordable units provided. The Affordability In-Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building permit within OWNER’s Project based on the square footage of the residential unit for which such building permit is sought; provided however that OWNER may, at OWNER’s election, pre-pay such Affordability In-Lieu Fee by paying such Affordability In-Lieu Fee within thirty (30) days following the earliest discretionary approval by the City for OWNER’s Project, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional use permit, or resolution of intention to form any public financing mechanism.

The Three Dollars Twelve Cents Cents ($3.12) and the Two Dollars Seven 275
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Cents ($2.74) per square foot amounts shall automatically be increased annually, commencing on July 1, 2023, and automatically each July 1 thereafter. Such adjustment shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year. The pre- paid Affordability In-Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted within the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density ” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In- Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.

4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit for any affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for-sale units and fifty-five (55) years for rentals.

4.4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non-profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one-tenth of one percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enforceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.

4.5 Schools Obligations.

4.5.1 Written Evidence of Compliance with Schools Obligations.

schools, six (6) are to be elementary (K-5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Union High School District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school.

The new school obligations for the applicable school district shall be met by a combination of the following: (1) designating and dedicating school site(s) within the Property as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school district that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school district(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capacity Availability, or any combination thereof, presented by such OWNER, without liability to the City. To the extent that a joint mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mitigation agreement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.

4.6 Public Services Funding Fee.

4.6.2 Public Services Funding Fee Amount. OWNER shall pay a Public Services Funding fee in the total amount of Two Thousand Three Hundred Seventeen dollars ($2,317.00) per residential dwelling unit. The Public Services Funding Fee shall be paid in one (1) installment within one hundred eighty (180) calendar days after the effective date of the Development Agreement or in two (2) installments, at OWNER’s option, as follows:

4.6.2.1 First Installment (Residential uses). The First Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential dwelling unit. The First Installment shall be based upon the “ Maximum Development Density” of the OWNER Project, as defined in Section 3.7.2.3 of the First Amended and Restated Construction Agreement. The First Installment shall be due and payable thirty (30) days following the effective date of the Development Agreement.

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within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 2023, the amount of the First Installment shall be increased. Such increase shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year. Additionally, the amount shall be further increased automatically by the percentage increase in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) on each January 1 thereafter.

4.6.2.2 Second Installment (Residential Uses). The Second Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1 st of each year, beginning on January 1, 2023. OWNER may exercise the option to pay the Second Installment amount for all residential units, a portion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Second Installment amount is automatically increased.

4.6.2.3 Single Installment (Non-residential Uses). A single installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Cents ($.70) per square foot of non-residential buildings. The single installment for non-residential uses shall be due and payable prior to the issuance of the building permit for a non-residential building. The amount of the Single Installment for non-residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year on January 1 st of each year, beginning on January 1, 2023. OWNER may exercise the option to pay any single installment amounts for the remainder of the non-residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.7 Net MDD/Water Availability Equivalents.

4.7.1 Assigned Net MDD/Water Availability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approve a final tract map or issue building permits or certificates of 278
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4.7.2 Use of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall be based upon water demand factors and assumptions listed in Exhibit C-2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.

4.7.3 Requirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to an OWNER’s Project, including those relating to design and construction of master-planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.

4.7.4 Effectiveness of Agreement. Notwithstanding anything set forth in this Agreement, CITY and OWNER each acknowledge, confirm, and agree that (i) the CITY approval of this Agreement and (ii) the effectiveness of this Agreement, in each case, are conditioned upon OWNER’s admission to NMC Builders as a “Member” (if not already a Member) thereof pursuant to the terms and conditions of the operating agreement of NMC Builders within thirty (30) days following the Effective Date of this Agreement. OWNER’S failure to maintain membership in NMC Builders LLC is and shall be a Default under this Agreement.

4.8 Storm Water Capacity Availability.

4.8.1 Requirement for Storm Water Treatment Capacity Availability. OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserved in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.6 of this Agreement.

4.8.3 Requirement for other Storm Water Improvements. The Certificate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any other conditions applicable to a particular development project, including those relating to on-site water 279
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treatment, water quality, connection to the storm water collection system, or other public infrastructure requirements.

4.9 Maintenance of Open Space. OWNER shall provide for the ongoing maintenance of all park, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and restrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.

4.10 Compliance with Public Benefits Requirements.

4.10.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.10, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project- related building permits, certificates of occupancy, or discretionary approvals, without liability.

5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1 Financing Mechanism(s). In accordance with the Memorandum of Agreement between the CITY and NMC Builders, CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a financing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of public infrastructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provisions of the Memorandum of Agreement between CITY and NMC Builders LLC.

Notwithstanding such reimbursements and acquisitions, OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,443.71 per Single Family Detached Dwelling Unit, $1,251.15 per Multiple- Family Dwelling Unit, $1,048.96 per Gated Apartment Community Dwelling Unit, and $.27 per square foot for Non-Residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year, unless otherwise modified by the CITY. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public 280
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financing mechanism within the Property on the OWNER mitigating all Project-related impacts to the applicable school district(s) as required by such school district(s).

Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to finance City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, shall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended from time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initiation of Periodic Review. The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

6.1.2 Initiation of Special Review. A special review may be called either by agreement between the parties or by initiation in one or more of the following ways:
(1) Recommendation of the Planning staff;
(2) Affirmative vote of at least four (4) members of the Planning Commission; or
(3) Affirmative vote of at least three (3) members of the City Council.
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6.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.1.6 Procedure Upon Findings.
(a) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has complied in good faith with the terms and conditions of this Agreement during the period under review, the review for that period is concluded.
(b) If the Planning Commission finds and determines on the basis of substantial evidence that the OWNER has not complied in good faith with the terms and conditions of this Agreement during the period under review, the Planning Commission may recommend to the City Council to modify or terminate this Agreement. (c) The OWNER may appeal a determination pursuant to
paragraph (b) to the City Council in accordance with the CITY's rule for consideration of appeals in zoning matters generally.

The notice shall contain:
(a) The time and place of the hearing;
(b) A statement as to whether or not the CITY proposes to terminate or to modify this Agreement; and
(c) Other information that the CITY considers necessary to inform the OWNER of the nature of the proceeding.

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be 282
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heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default.

The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 283
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8.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsections 6.2 and 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default 284
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and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9. THIRD PARTY LITIGATION.

CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

9.3 Indemnity. In addition to the provisions of 9.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

9.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any 285
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violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.

10. MORTGAGEE PROTECTION.

The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 286
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(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

11. MISCELLANEOUS PROVISIONS.

11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

11.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the 287
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State of California. This Agreement shall be construed as a whole according to its fair language and common meaning to achieve the objectives and purposes of the parties hereto, and the rule of construction to the effect that ambiguities are to be resolved against the drafting party shall not be employed in interpreting this Agreement, all parties having been represented by counsel in the negotiation and preparation hereof.

11.5 Section Headings. All section headings and subheadings are inserted for convenience only and shall not affect any construction or interpretation of this Agreement.

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

11.7 Joint and Several Obligations. Subject to section 2.4, if at any time during the term of this Agreement the Property is owned, in whole or in part, by more than one owner, all obligations of such owners under this Agreement shall be joint and several, and the default of any such owner shall be the default of all such owners.

Notwithstanding the foregoing, no owner of a single lot which has been finally subdivided and sold to such owner as a member of the general public or otherwise as an ultimate user shall have any obligation under this Agreement except as provided under Section 4 hereof.

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

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

11.10 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person shall have any right of action based upon any provision of this Agreement.

11.11 Force Majeure. Neither party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by floods, earthquakes, other Acts of God, fires, wars, riots or similar hostilities, strikes and other labor difficulties beyond the party’s control, (including the party’s employment force), government regulations, court actions (such as restraining orders or injunctions), or other causes beyond the party’s control. If any such events shall occur, the term of this Agreement and the time for performance by either party of any of its obligations hereunder may be extended by the written agreement of the parties for the period of time that such events prevented such performance, provided that the term of this Agreement shall not be extended under any circumstances for more than five (5) years. 288
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11.13 Successors in Interest. The burdens of this Agreement shall be binding upon, and the benefits of this Agreement shall inure to, all successors in interest to the parties to this Agreement. All provisions of this Agreement shall be enforceable as equitable servitudes and constitute covenants running with the land. Each covenant to do or refrain from doing some act hereunder with regard to development of the Property: (a) is for the benefit of and is a burden upon every portion of the Property; (b) runs with the Property and each portion thereof; and, (c) is binding upon each party and each successor in interest during ownership of the Property or any portion thereof.

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

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

11.16 Project as a Private Undertaking. It is specifically understood and agreed by and between the parties hereto that the development of the Project is a private development, that neither party is acting as the agent of the other in any respect hereunder, and that each party is an independent contracting entity with respect to the terms, covenants and conditions contained in this Agreement. No partnership, joint venture or other association of any kind is formed by this Agreement. The only relationship between CITY and OWNER is that of a government entity regulating the development of private property and the owner of such property.

11.17 Further Actions and Instruments. Each of the parties shall cooperate with and provide reasonable assistance to the other to the extent contemplated hereunder in the performance of all obligations under this Agreement and the satisfaction of the conditions of this Agreement. Upon the request of either party at any time, the other party shall promptly execute, with acknowledgment or affidavit if reasonably required, and file or record such required instruments and writings and take any actions as may be reasonably necessary under the terms of this Agreement to carry out the intent and to fulfill the provisions of this Agreement or to evidence or consummate the transactions contemplated by this Agreement. The City Manager may delegate his powers and duties under this Agreement to an Assistant City Manager or other management level employee of the CITY.

11.18 Eminent Domain. No provision of this Agreement shall be construed to limit or restrict the exercise by CITY of its power of eminent domain. 289
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-37-

11.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of the Court so obtained and waives any and all objections and protests thereto. OWNER for itself, assigns and successors hereby waives the provisions of the Hague Convention (Convention on the Service Abroad of Judicial and Extra Judicial Documents in Civil or Commercial Matters, 20 U.S.T. 361, T.I.A.S. No. 6638).

11.20 Estoppel Certificate. Within thirty (30) business days following a written request by any of the parties, the other party shall execute and deliver to the requesting party a statement certifying that (i) either this Agreement is unmodified and in full force and effect or there have been specified (date and nature) modifications to the Agreement, but it remains in full force and effect as modified; and (ii) either there are no known current uncured defaults under this Agreement or that the responding party alleges that specified (date and nature) defaults exist. The statement shall also provide any other reasonable information requested. The failure to timely deliver this statement shall constitute a conclusive presumption that this Agreement is in full force and effect without modification except as may be represented by the requesting party and that there are no uncured defaults in the performance of the requesting party, except as may be represented by the requesting party. OWNER shall pay to CITY all costs incurred by CITY in connection with the issuance of estoppel certificates under this Section 11.20 prior to CITY’s issuance of such certificates.

11.21 Authority to Execute. The person or persons executing this Agreement on behalf of OWNER warrants and represents that he or she/they have the authority to execute this Agreement on behalf of his or her/their corporation, partnership or business entity and warrants and represents that he or she/they has/have the authority to bind OWNER to the performance of its obligations hereunder.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the day and year set forth below.
[SIGNATURES CONTAINED ON FOLLOWING PAGE]
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SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT NO. PDA21-014
“OWNER”
BROOKCAL ONTARIO LLC, a Delaware
limited liability company
By:_______________________________
Name: David E. Bartlett
Title: Vice President
Date: ___________________
"CITY"

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
Date: ___________________
ATTEST:

City Clerk, Ontario
APPROVED AS TO FORM:

BEST BEST KRIEGER, LLP
City Attorney
291
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39 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )
On _________________, 20_____, before me,______________________________________, Date Insert Name and Title of the Officer
personally appeared ___________________________________________________________ Name(s) of Signer(s)
____________________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

Signature________________________________
Signature of Notary Public
Place Notary Seal Above
A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy, or validity of that document. 292
46700.90310\40741290.1
40 ACKNOWLEDGEMENT

STATE OF CALIFORNIA )
COUNTY OF____________________ )
On _________________, 20_____, before me ,
Date Insert Name and Title of the Officer
personally appeared
Name(s) of Signer(s)
___________________________________________________________________, who proved to me on the basis of satisfactory evidence to be the person whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity, and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.

WITNESS my hand and official seal.

TO DEVELOPMENT AGREEMENT
Legal Description of Property

REAL PROPERTY IN THE CITY OF ONTARIO, COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, DESCRIBED AS FOLLOWS:

BEING A PORTION OF PARCEL 2 OF PARCEL MAP NO. 16568, AS PER MAP FILED IN PAGES 24 AND 25 IN PARCEL MAP BOOK NO. 204, FILED IN THE

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

BEGINNING AT THE NORTHWEST CORNER OF LOT 6 OF TRACT MAP NO. 20134, AS PER MAP FILED IN BOOK 357, PAGES 23 THROUGH 33,

INCLUSIVE, OF TRACT MAPS, IN THE OFFICE OF THE COUNTY

RECORDER OF SAID COUNTY, SAID CORNER BEING ON THE SOUTHERLY LINE OF SAID PARCEL MAP NO. 16568; THENCE EASTERLY ALONG SAID SOUTHERLY LINE NORTH 89°37’37” EAST, A DISTANCE OF 355.00 FEET, THENCE NORTH 00°11’36” WEST, A DISTANCE OF 20.60 FEET, TO THE BEGINNING OF A TANGENT 1385.00 FOOT RADIUS CURVE, CONCAVE WESTERLY;
THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°13’59”,

A LENGTH OF

78.15 FEET;
THENCE NORTH 03°25’35” WEST, A DISTANCE OF 99.85 FEET, TO THE BEGINNING OF A TANGENT 615.00 FOOT RADIUS CURVE, CONCAVE EASTERLY;
THENCE ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 03°14’00”,

A LENGTH OF

34.71 FEET;
THENCE NORTH 00°11’35” WEST, A DISTANCE OF 761.32 FEET, TO THE NORTHERLY LINE OF SAID PARCEL 2;
THENCE ALONG SAID NORTHERLY LINE, SOUTH 89°58’40” WEST, A DISTANCE OF 385.00 FEET, TO THE EASTERLY LINE OF PARCEL 1 OF SAID PARCEL MAP NO.16568;
294
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42 EXHIBIT "A" CONTINUED
THENCE SOUTHERLY ALONG SAID EASTERLY LINE, SOUTH 00°11’35”

EAST, A DISTANCE OF
946.80 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL 1;
THENCE WESTERLY ALONG SAID SOUTHERLY LINE, SOUTH 89°37’37” WEST, A DISTANCE OF 1168.19 FEET, TO THE CENTERLINE OF HAVEN AVENUE, AS SHOWN ON SAID PARCEL MAP NO. 16568:

THENCE SOUTHERLY ALONG SAID CENTERLINE, SOUTH 00°11’36” EAST,

A DISTANCE OF

50.00 FEET, TO THE SOUTHERLY LINE OF SAID PARCEL 2;
THENCE EASTERLY ALONG SAID SOUTHERLY LINE, NORTH 89°37’37” EAST, A DISTANCE OF 1207.01 FEET, TO THE NORTHWEST CORNER OF LOT 6 OF TRACT MAP NO. 20134 AND THE POINT OF BEGINNING.

CONTAINING:
442,924 SQUARE FEET / 10.168 ACRES GROSS, MORE OR LESS. 439,824 SQUARE FEET / 10.097 ACRES NET, MORE OR LESS

SUBJECT TO ALL COVENANTS, CONDITIONS, RESERVATIONS,
RESTRICTIONS, RIGHT-OF- WAY AND EASEMENTS OF RECORD, IF ANY. 295
46700.90310\40741290.1
43 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT
Map showing Property and its location
296
46700.90310\40741290.1
44 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On October 23, 2007 the Planning Commission:
a) Issued Resolution No. PC07-125 recommending City Council certification of the Rich-Haven Specific Plan EIR (SCH#2006051081).
b) Issued Resolution No. PC07-127 recommending to City Council approval of the Rich-Haven Specific Plan (File No. PSP05-004).

PSPA16-001) to the Rich-Haven Specific Plan.

PSPA16-005) to the Rich-Haven Specific Plan.
297
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45 EXHIBIT "D"

TO DEVELOPMENT AGREEMENT
Existing Land Use Regulations
These documents are listed for reference only:

1. The Rich-Haven Specific Plan (File No. PSP05-004) Environmental Impact Report, Resolution No. 2007-145.

2. The Rich-Haven Specific Plan (File No. PSP05-004), Ordinance No. 2884.

3. Addendum to the Rich-Haven Specific Plan (File No. PSPA16-001) Environmental Impact Report, Resolution No. 2016-024.

4. Amendment to the Rich-Haven Specific Plan (File No. PSPA16-001), Resolution No. 2016-025.

5. Addendum to the Rich-Haven Specific Plan (File No. PSPA16-005) Environmental Impact Report, Resolution No. 2018-017.

6. Amendment to the Rich-Haven Specific Plan (File No. PSPA16-005), Resolution No. 2018-018.

7. City of Ontario Municipal Code
a. Six – Sanitation & Health
b. Seven – Public Works
c. Eight – Building Regulations
d. Nine – Development Code
e. Ten – Parks & Recreation
298
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46 EXHIBIT "E"

TO DEVELOPMENT AGREEMENT
Description of Required Improvements
OWNER shall design, construct, and complete all improvements including but not limited to sewer, water, recycled water, storm drain, fiber, and street improvements necessary to serve the Property, prior to the request of any Production Units.

A) PHASE 1 IMPROVEMENTS include but not limited to the street, water, recycled water, sewer, storm drain, fiber optic, and traffic signal improvements along Twinkle Avenue.

B) PHASE 2 IMPROVEMENTS include but not limited to the street, water, recycled water, sewer, storm drain, fiber optic, and traffic signal improvements, north on Twinkle Avenue and west along Chino Avenue to Haven Avenue.

C) If the PHASE 2 IMPROVEMENTS are not completed prior to the request of occupancy for Phase 1 Production Units, then OWNER shall deposit funds into an escrow account equal to the cost for the Phase 2 improvements, subject to the sole discretion of the City Engineer.
299
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47 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT
Depiction of Required Infrastructure Improvements
(SEE ATTACHED)
300
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48 301
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49 302
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50 Exhibit “G”

TO DEVELOPMENT AGREEMENT
Form of Plume Disclosure Letter
303
Department: Building
Prepared By: James J Caro
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

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

A PUBLIC HEARING TO CONSIDER ADOPTION OF AN ORDINANCE APPROVING THE 2021 INTERNATIONAL FIRE CODE AND THE 2022 CALIFORNIA BUILDING

AND FIRE CODES ADOPTED BY THE CALIFORNIA BUILDING STANDARDS

COMMISSION IN THE CALIFORNIA CODE OF REGULATIONS

CITY OF ONTARIO
Agenda Report
November 15, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council introduce and waive further reading of:

A
.

An Ordinance amending Chapter 4, Title 4 of the Ontario Municipal Code entitled "Fire Code" adopting by reference, with certain amendments, additions, deletions, and exceptions, the 2021 International Fire Code and the 2022 California Fire Code (California Code of Regulations, Title 24, Part 9); and
B
.

An O
rdinance amending Chapters 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, and 14 of Title 8 of the Ontario Municipal Code to adopt the California Building Standards Code by reference, with certain amendments, additions, and deletions.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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 Invest in the Growth and Evolution of the Cityâ€™s Economy FISCAL IMPACT:

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

BACKGROUND & ANALYSIS:

Every three years, the California Building Standards Commission adopts the California Building Standards Code, which consists of the codes that regulate building construction. The California Health and Safety Code mandates that all public agencies responsible for administering Building and Safety and Fire Codes comply with the State adopted Building & Safety and Fire Codes; and local agencies are required to adopt and enforce the State codes. Local agencies may also adopt amendments to the State Codes based on ﬁndings relative to local geological or topographic conditions. Staﬀ recommends amendments to the Codes based upon certain local conditions to ensure compliance with State mandates, to assure that Ontario's Codes 304
continue to address the latest technological advances, and to provide for the use of companion Fire and Building Codes.

Fire Codes
: The proposed ordinance adopts the 2021 International Fire Code and the 2022 California Fire Code and provides for certain local amendments. These amendments are consistent with other provisions that are in the current version of the City's Fire Code. The State Codes incorporate, by reference, the Model Codes published by the International Code Council (ICC).

Building Codes
: The proposed Ordinance adopts the 2022 California Building Code and related codes and includes a couple of amendments that are a function of Ontario's geography and energy concerns. The amendments include:

1 .

The design criteria for all structures built within the city is 110 MPH winds, Exposure C, seismic zone D;
2 .

Because of our proximity to the San Andreas fault, all underground pipe, conduit, and lines will be shaded with cleaned dirt void of any rocks or clean sand, six inches below and twelve inches above said pipe, conduit, or line. All electrical metal conduit will need a ground conductor, the metal conduit will not act as the ground conductor; 3 .

Retro-ﬁt windows will need a building permit and will need to follow 2022 standards for emergency egress; and
4 .

All walls over 3 ft (36 inches) will need a building permit, and all retaining walls over 2 ft (24 inches) will need a building permit. Like ourselves increase the requirements mostly for energy conservation but also for geographical reasons like earthquakes, etc.

Adoption of the new version of the Building and Fire Codes will provide for proper construction guidelines for the health and safety of occupants and energy conservation. 305
ORDINANCE NO __________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
ONTARIO, CALIFORNIA, AMENDING CHAPTER 4 OF TITLE 4 OF
THE ONTARIO MUNICIPAL CODE; ADOPTING BY REFERENCE

WITH CERTAIN AMENDMENTS, ADDITIONS, DELETIONS, AND
CHANGES THERETO, THE 2022 CALIFORNIA FIRE CODE AND THE
2021 INTERNATIONAL FIRE CODE, PROVIDING FOR THE
RECOVERY OF COSTS AND COLLECTION OF FEES; AND
REPEALING ORDINANCE NO. 3062 OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA.

WHEREAS, pursuant to Government Code Section 5 0022.1, et seq., the City of Ontario, California ("City") may adopt by reference the 2022 edition of the California Building Standards Code as provided in Title 24 of the California Code of Regulations; and
WHEREAS, California Health and Safety Code Sections 17958.7 and 18941.5 authorize cities to adopt the California Building Standards Code with modifications that are determined to be reasonably necessary because of local climatic, geological, or topographical conditions; and
WHEREAS, prior to making modifications permitted under California Health and Safety Code Sections 17958.7 and 18941.5, the City Council is required to make express findings that such modifications are needed in accordance with California Health and Safety Code Sections 17958.7; an d
WHEREAS, the City held a public hearing on November 15, 2022, at which time all interested persons had the opportunity to appear and be heard on the matter of adopting the Codes as amended herein; and
WHEREAS, the City published notice of the aforement ioned public hearing pursuant to California Government Code Section 6066 on November 4, 2022; and WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

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

SECTION 1. The City Council hereby finds that the following proposed amendments to the 20 22 California Fire Code and the 20 21 International Fire Code are:
(a) necessary because of local climatic, geological, or topographical conditions, or
306
(b) are of an administrative or procedural nature, and/or do not modify building standards and are reasonably necessary to safeguard life and property within the City.

Amendment Applicable Findings from Listing Below
Sections 102.7, 103.1, 103.2, 104.7,
104.7.1, 104.11, 105.5.55, 111.1, 112.2,
112.4, 113.4
D-1
Section 503.2.1 D-2
Section 503.4 D-2
Section 507.5.1.2 A-1, B-1, B-2, C-1, C-2, C -3
Section 5704.2.9.6.1, 5706.2.4.4, 5806.2 D-2
Section 6104.2 D-2
Sections 2808.1, 2808.3, 2808.4, 2808.5,
2808.10,
C-1, C-2, C-3 & C-4
Appendix B Section B105.2 A-1, B-2, B-3, B-4 & B-5
A Local Geological Conditions.

A-1. The City of Ontario is subject to moderately strong to severe shaking and surface ruptures resulting from five earthquake faults located within or near the City. These local earthquake faults have the potential to cause severe personal and property damage and fire hazards. Moreover, there is also a potential for damage to roadways, water supplies, and the impairment of access allowing fire equipment to respond to emergencies in the event of a severe earthquake.

A-2. Adverse geological conditions exist in portions of the City that may cause excessive flooding. Flood control facilities are not adequate to handle the water flow that occurs during major storms or prolonged rains. Some of the streets in the City are actually designed and used for flood control purposes, thus making the fire and emergency access difficult during flood conditions. As a consequence, many of the streets within the City are impaired during such flood conditions and such flooding causes physical damage to the streets and the accumulation of debris, all of which hinder access to fire equipment for the purposes of responding to fire and other emergencies.

B. Local Topographical Conditions.

B-1. The topography of the City of Ontario is generally that of a gently sloping inclined plane that slopes in a southerly direction from an elevation of 1,190 feet to an elevation of 730 feet at the southern boundary of the City resulting in several water pressure zones to serve the City. The elevation changes caused by the mountains and hills creates the geological foundation upon which the City is built and will continue to build.
307
B-2. Located within the City are three major interstate freeways and a major state highway that provide for limited under crossing access points to traverse the City. These highways also restrict the ability of the water supply grid to provide water from multiple points to all areas of the City and necessitates the use of dead - end water mains to many areas adjacent to highways.

B-3. The City is bisected from east to west by two very active railroad main route tracks used by the Southern Pacific and Union Pacific Railroads. These lines are used for both commuter and large freight transport trains, including the transporting of large quantities of hazardous materials. Limited under -crossings and overcrossings exist within the City for uninterrupted emergency vehicle passage.

Moreover, em ergency vehicles are routinely delayed at grade crossings until passenger trains or passing freight trains clear the grade crossings.

B-4. Two large petroleum product pipelines bisect the City along the Southern Pacific Railroad right -of-way. The pipelin es are used to transport large quantities of gasoline, diesel fuel, and jet fuels under high pressures. Another petroleum pipeline intersects the City along the east side en -route to the Etiwanda electrical generating station north and east of the City. While generally underground, these pipelines pass overhead at several overpasses located over main thoroughfares in the City. Damage to these pipelines during seismic events p oses the dual potential of creating a time emergency and at the same time restricting emergency vehicle access within the City.

B-5. Two large, high pressure, natural gas transmission pipelines traverse the easterly part of the City, along the 1-15 Freeway and on the west side along Benson Avenue. These 36" transmission mains transport natural gas at pressures exceeding 500 psi and pass through developed residential and industrial areas. These transmission pipelines also intersect the previously ment ioned petroleum pipelines. Interruption of these pipelines due to flooding or seismic events is possible and would result in reduced resources to protect the balance of the City.

B-6. A large commercial airport is located within the central portion of the City providing limited emergency vehicle access from the north to the south- central portions of the City. A majority of the City is located within the approach and/or departure paths of large commercial aircraft exposing a large part of the City to potential aircraft related emergencies. Moreover, Santa Ana Winds frequently require the flight paths of arriving and departing aircraft to be reversed.

C. Local Climatic Conditions.

C-1. The City is subject to extremely strong winds, commonly referred to as "Santa Ana Winds," which can reach speeds in excess of 80 miles per hour and approach the basin from the desert via the Devore Pass. Extensive damage often occurs during such winds, including d owned electric wires, downed utility and light poles, fallen trees, blowing debris, sand, and dust. Blowing dust experienced during these winds has reduced visibility near zero and impacted the response times of emergency vehicles.
308
C-2. During the summe r months, the Santa Ana Winds produce a period of extremely low humidity causing an increase in the threat of fire from dry vegetation and other common fuels. These conditions have, in the past, resulted in vegetation and structure fires.

C-3. The City experiences summer temperatures in excess of 100 degrees Fahrenheit. When coupled with severe Santa Ana Winds these conditions can cause a fire to spread quickly throughout portions of the City.

C-4. Weather conditions, coupled with flammable vegetation in bordering cities results in numerous wildland rims, which draw existing fire fighting forces from their structure protection duties for extended periods of time. This results in increased response times to structure fires when fire department personnel and equipment are committed to nonstructural fire protection activities.

D. Administrative/Procedural/Public Safety Amendments.

D-1. This amendment is necessary for administrative or procedural clarification and to establish administrative standards for the effective enforcement or the building standards of the City of Ontario and does not modify a building standard pursuant to California Health & Safety Code sections 17958, 17958.7, and/or 18941.5.

D-2. This amendment does not modify a building standar d pursuant to California Health and Safety Code sections 17958, 17958.7, and/or 18941.5 and is reasonably necessary to safeguard life and property within the City of Ontario.

SECTION 2. Chapter 4 of Title 4 of the Ontario Municipal Code is hereby rewritten in its entirety to read as follows:

Chapter 4: Fire Code
Sections:
4-4.01 Adoption of California Fire Code and the International Fire Code
4-4.02 Cost Recovery
4-4.03 Establishment of the Limits of Districts in Which Stationary Containers of Flammable Cryogenic Fluids Are Prohibited 4-4.04 Establishment of the Limits of Districts in Which Storage of Class I and Class II Liquids in Unprotected Aboveground Tanks and in Below Grade Vaulted Tanks is Prohibited
4-4.05 Establishment of the Limits in Which Storage of Liquefied Petroleum Gases Is Restricted for the Protection of Heavily Populated or Congested Areas
4-4.06 Amendments to the 2022 California Fire Code and 2021 309
International Fire Code
4-4.07 Amendment: Referenced codes and standards
4-4.08 Amendment: General
4-4.09 Amendment: Appointment
4-4.10 Amendment: Liability and Legal Defense
4-4.11 Amendment: Investigations
4-4.12 Amendment: Pallets
4-4.13 Amendment: Board of Appeals Established
4-4.14 Amendment: Violation Penalties
4-4.15 Amendment: Failure to Comply
4-4.16 Amendment: Dimensions
4-4.17 Amendment: Obstruction of Fire Apparatus Access Roads 4-4.18 Amendment: Two Points of Connection
4-4.19 Amendment: General
4-4.20 Amendment: Size of Piles
4-4.21 Amendment: Combustible Waste
4-4.22 Amendment: Emergency Plan
4-4.23 Amendment: Buildings Other than One - and Two -Family Dwellings
4-4.24 Remote Annunciation
4-4.25 Monitoring
Section 4-4.01 Adoption of the California Fire Code and the International Fire Code.

The City Council of the City of Ontario hereby adopts by reference with certain amendments, additions, deletions and exceptions, the 2022 California Fire Code with errata, incorporating therein the 2021 International Fire Code, also referred to as Part 9 of Title 24 of the California Code of Regulations, with included appendices, as published by the International Code Council and adopted by the California State Building Standards Commission, (hereinafter also "this Code" or the "Ontario Fire Code",) for the purpose of prescribing regulations governing conditions hazardous to life and property from fire, hazardous materials or explosion.

Section 4-4.02. Cost Recovery.
(A) Expense for Responding to and Securing an Emergency.

1. Fire suppression, investigation and rescue or emergency medical costs shall be recoverable in accordance with Health & Safety Code Sections 13009 and 13009.1.

2. Any person or entity who negligently or intentionally, or in violation of law, causes an emergency response, including but not limited to, a traffic accident or spill of toxic or flammable fluids or chemicals, is liable for the costs of responding, securing and investigating such emergency, 310
including those costs set out in Health & Safety Code Section 13009, et seq. and Government Code Section 53150, et seq. Any expense incurred by the Fire Department for responding to, securing, or investigating such an emergency situation shall constitute a debt of the person or entity responsible and shall be subject to collection by the City in the same manner as an obligation under contract, expressed or implied.

4. The expense of responding to, securing and investigating any emergency or hazard which is the result of a violation of this Code or any other code, ordinance or state law, or any damages caused by malicious mischief requiring any corrective or preventive actions by the Fire Department shall be a charge against the person(s) or entity whose violation caused the emergency and/or damage. Damages caused by such emergency or action may constitute a debt of such person(s) or entity responsible and shall be collectible as provided below:
i. Liability for Hazardous Activities and Conditions. The Chief may also impose the reasonable cost of fire prevention, fire suppression, incident investigation and protection of the public from other safety hazards when a fire or hazardous condition results from any of the following activities or conditions:
(1) The manufacture, transportation, storage, handling, or spilling, of hazardous chemicals, flammable or
combustible liquids, explosives, or blasting agents as
defined in this Code; and
(2) The failure to correct a hazardous condition for which a "Notice of Violation," or equivalent notice, has been
previously given by the Chief; and
(3) The use of welding equipment, cutting torches, tar pot, or other open flame devices; and
(4) Permitting or causing the accumulation of haza rdous or flammable materials on property; and
(5) Setting of a fire or allowing a fire to be set in violation of any code, ordinance, law or regulation; and
(6) The possession of, or causing illegal fireworks, explosive devices or destructive devices to ignite, explode or
detonate; and
(7) Creating, allowing, or maintaining a hazard as stated in California Fire Code Section 112.2.
ii. Determination of Costs. Whenever the Chief determines that the fire department or other public agency has incurred costs for fire suppression, fire prevention, or protection of the public from a fire or other hazardous condition that results from the activities or conditions described in subsection (a), the Chief shall:
311
(1) Calculate the costs incurred;
(2) Identify the person(s) or entity to be charged for those costs; and
(3) Send a report with this information to the City Clerk. iii. Method of Calculation. In determining costs to be charged a responsible person or entity, the Chief shall include all necessary expenditures to correct the hazardous condition or extinguish the fire, including, but not limited to the following:
(1) The cost ofpersonnel;
(2) The cost of extinguishing agents;
(3) The reasonable value of the use of City equipment;
(4) The cost incurred for the use of any private contractors to mitigate or remove the hazard or condition; and
(5) Any and all administrative costs incurred pursuant to the fee schedule as set by resolution duly adopted by the
City Council.
iv. Reimbursement Hearing. The City Clerk shall, thereupon, set the report and account received by the Chief for hearing before the City Council at a regular or adjourned regular meeting to be held at least fourteen (14) calendar days after the date the Clerk mails the notice to the responsible person(s) or entity. The City Clerk shall send by regular mail a Notice of said hearing to the person or entity to be charged at the person's or entity's address as shown on the latest equalized tax assessor's roll, or as otherwise known to the City. v. Notice to Person Charged. The Notice sent by the City Clerk to the responsible person(s) or entity shall contain:
(1) The name of the person(s) or entity sought to be charged; (2) The location, date and time of the incident upon which the claim for reimbursement is based;
(3) The amount of, and the basis upon which the claim for reimbursement is made;
(4) The date, time and place of the hearing to be held on the claim for reimbursement with a statement describing the rights of the person or entity charged and the procedures for presenting evidence at said hearing; and
(5) The Chief's account of the sum claimed to be due.
vi. Procedure for Hearing Before the City Council. At the hearing on the Chiefs accounting of the costs and other evidence upon which reimbursement is sought, the City Council shall hear and consider 312
evidence by the person or entity against which reimbursement is sought.

The City Council shall thereafter confirm or disallow the account, all or in part, and set forth in a resolution the amount of the account confirmed, if any. Thereafter, any amount confirmed by resolution of the City Council shall become a debt owing to the City of Ontario and shall be collectible by the City in the same manner as in the case of an obligation under contract expressed or implied.
(B) Service Fees.

1. Permit Fees. Any person, establishment, business, occupancy, or process requiring any permit or utilizing any special service or activity performed by or under the direction of the Fire Department shall compensate the City for the cost of such service or activity, in accordance with the adopted fee and charge schedule and any departmental policy.

2. Service Fee Refunds. The Fire Chief is authorized to refund any fee paid hereunder which is determined to be erroneously paid or collected. i. The Fire Chief is authorized to refund eighty percent (80%) of the service fee paid when the permittee has performed no work nor commenced an operation for which a permit was issued in accordance with this Ordinance.
ii. The Fire Chief is authorized to refund eighty percent (80%) of the plan review fee paid when an application for a permit for which a plan review fee has been paid is withdrawn or canceled before any plan review is completed.
iii. The Fire Chief shall not authorize the refund of any fee paid except upon written application filed by the original permittee not later than one hundred eighty (180) days after the date the fee was paid. Such written application shall state the reasons for the refund req uest and be accompanied with a receipt of payment.

Section 4-4.03. Establishment of the Limits of Districts in Which Stationary Containers of Flammable Cryogenic Fluids Are Prohibited.

The limits referred to in Section 5806.2 of the 2022 California Fire Code in which the storage of flammable cryogenic fluids in stationary containers is prohibited are hereby established as follows:

1. All areas and zoning districts of the City except the General Industrial District of the City Development Code, and with the specific approval of the Fire Chief.
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Section 4-4.04. Establishment of the Limits of Districts in Which Storage of Flammable or Combustible Class I and Class II Liquids in Outside Unprotected Aboveground Tanks is Prohibited.

The limits referred to in Sections 5704.2.9.6.1 and 5706.2.4.4 of the 2022California Fire Code in which the storage of flammable or combustible liquids in outside aboveground unprotected tanks are prohibited are hereby established as follows:

1. In all areas of the City unless upon specific written findings, the Chief determines that the installation of flammable and combustible unprotected aboveground storage tanks or below grade vaulted tanks will not create a hazard to occupants and property owners in the surrounding area.

Section 4-4.05. Establishment of the Limits in Which Storage of Liquified Petroleum Gases is Restricted for the Protection of Heavily Populated or Congested Areas.

The limits referred to in Section 6104.2 of 2022 California Fire Code, in which storageof liquefied petroleum gas is restricted, are hereby established as follows:

1. All areas and zoning districts of the City except the General Industrial District of the City zoning ordinance, and with the specific approval of the Fire Chief.

Section 4-4.06. Amendments to the 2022 California Fire Code (CFC) and 2021 International Fire Code (IFC).

1. Designated portions of the 2022 California Fire Code (CFC) and 2021 International Fire Code (IFC) are amended and changed as set forth in Sections 4-4.07 through 4-4.28.

Section 4-4.07. Amendment: Referenced codes and standards.

Section 102.7 of the 2022 CFC is amended to read as follows:

1. "102.7 Referenced codes and standards. The codes and standards referenced in this code shall be those that are listed in Chapter 80, and such codes and standards shall be considered to be part of the requirements of this code to the prescribed extent of ea ch such reference and as further regulated by Sections 102.7.1 and 102.7.2. The Fire Chief also herby authorizes the use of the Ontario Fire Department Fire Protection Standards for the purposes of interpreting and clarifying requirements of this Code and its referenced codes and standards." Section 4-4.08. Amendment: General.

Section 103.1 of the 2018 IFC is amended to read as follows:
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1. "103.1 General. The Fire Code as adopted and amended herein shall be enforced by the Bureau of Fire Prevention of the Fire Department of the City of Ontario which is hereby established and shall operate under the supervision of the Chief of the Fire Department."
Section 4-4.09. Amendment: Appointment.

Section 103.2 of the 2022 CFC is amended to read as follows:

1. "103.2 Appointment. The Fire Marshal shall be responsible for operating the Bureau of Fire Prevention and shall be appointed by the Fire Chief on the basis of examination to determine his or her qualifications Section 4-4.10. Amendment: Liability and LegalDefense.

Section 104.7 and 104.7.1 of the CFC of the IFC is amended to read as follows:

1. "104.7 and 104.7.1 Liability and legal defense. The Chief and other individuals charged by the Chief with the enforcement of this Code or any other official duties, acting in good faith and without malice in the discharge of their duties, shall not thereby be rendered perso nally liable for any damage that may accrue to persons or property as a result of any act or by reason of any act or omission in the discharge of their duties. Any suit brought against the Chief or such individuals because of such act or omission performed in the enforcement of any provision of such Code or other pertinent laws or ordinances implemented through the enforcement of this Code or enforced by the code enforcement agency shall be defended by this jurisdiction until final termination of such proce edings, and any judgment resulting there from shall be assumed by this jurisdiction subject to the provisions of Government Code Section 825."
Section 4-4.11. Amendment: Investigations.

Section 104.11 of the CFC is amended to read as follows:

1. "104.11 Investigations. The fire code official, the fire department or other responsible authority shall have the authority to investigate the cause, origin and circumstances of any fire, explosion, or other hazardous condition. Information that could be related to trade secrets or processes shall not be made part of the public record, except as directed by a court of law. Fire Investigators shall have the powers of a police officer in performing the ir duties under this code." Section 4-4.12. Amendment: Pallets.

Section 105.5.55 is added to the CFC to read as follows:
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1. "105.5.55 Pallets. An operational permit is required for idle storage, handling, repair or manufacturing of combustible pallets i n excess of one thousand (1,000) units at any one site."
Section 4-4.13. Amendment: Board of Appeals.

Section 111.1 of the CFC is amended to read as follows:

1. "111.1 Board of Appeals Established. The City Council of the City of Ontario may hear and decide appeals of orders, decisions or determinations made by the fire code official relative to the application and interpretation of this code, pursuant to Chapter 4 of Title 1 of the City of Ontario Municipal Code. An application for appeal shall be submitted in writing, in a timely manner, and shall be based on a claim that the intent of this code or the rules, standards and interpretations adopted hereunder have been incorrectly interpreted, the provisions of this code do not fully apply, or an equivalent method of protection or safety is proposed. The Council shall have no authority to waive requirements of this Code. The City Council shall set the matter for hearing and shall give written notice to the appellant. The fire code official shall act as staff in advising the City Council during such hearing. A written copy of the decision shall be mailed to the concerned parties after the conclusion of such proceedings."
Section 4-4.14. Amendment: Violation penalties.

Section 112.4 of the CFC is amended to read as follows:

1. "112.4 Violation penalties. Any person who violates any provision of the Fire Code as adopted and amended herein or fails to comply therewith, or who violates or fails to comply with any order made thereunder, or who builds in violation of any detailed statement of specifications or plans submitted and approved thereunder, orany certificate or permit issued thereunder, and from which no appeal has been taken, or who fails to comply with such an order as affirmed or modified by the Board of Appeals or by a court of competent jurisdiction, within the required time, shall severally for each and every such violation and noncompliance, respectively, be guilty of an infraction or a misdemeanor, punishable as set forth in Chapter 2 of Title 1 of the Ontario Municipal Code. The imposition of one penalty for any violation shall not excuse the violation or permit it to continue; and all such persons shall be required to correct or remedy such violations or defects within a reasonable time; and when not otherwise specified, each day that a prohibited condition is maintained shall constitute a separate offense. The application of this penalty shall not be held to prevent the enforced removal of prohibited conditions.” Section 4-4.15. Amendment: Failure to Comply.

Section 113.4 of the CFC is amended to read as follows:
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1. "113.4 Failure to Comply. Any person who shall continue any work after having been served with a stop work order, except that work as that person is directed to perform to remove a violation or unsafe condition, shall be guilty of a misdemeanor, punishable as se t forth in Chapter 2 of Title 1 of the Ontario Municipal Code. Each day that any work is done under a stop work order shall constitute a separate offense.” Section 4-4.16. Amendment: Dimensions.

Section 503.2.1 of the CFC is amended to read as follows:

1. "503.2.1 Dimensions. Fire apparatus access roads shall have an unobstructed width of not less than 24 feet, exclusive of shoulders or curbs, except for approved security gates in accordance with section 503.6, and an unobstructed vertical clearance of not less than 13 feet 6 inches.”
Section 4-4.17. Amendment: Obstruction of Fire Apparatus Access Roads.

Section 503.4 of the CFC is amended to read as follows:

1. "503.4 Obstruction of fire apparatus access roads. The required width of a fire apparatus access road shall not be obstructed in any manner, including parking of vehicles. Access roads, private roadways and public roadways shall be always provided and main tained in a passable condition . Any obstruction or impediment to reasonable access may be removed by any public safety agency with the expense of such removal to be borne by the owner of the roadway, or in the case of an obstructing vehicle or object, by the owner of said vehicle or object." Section 4-4.18. Amendment: Two points of connection.Section 507.5.1.2 of the CFC is added to read as follows:

1. "507.5.1.2 Redundant water supplies. New on -site fire protection water systems that serve buildings greater than 100,000 square feet in floor area shall have two separate remote connections to the public water system designed and constructed in accordance with recognized standards. The locations of such water connections shall be approved by the fire cod e official." Section 4-4.19. Amendment: General.

Section 2808.1 of the CFC is amended to read as follows:

1. "2808.1 General. The storage and processing of wood chips, hogged materials, fines, compost , solid biomass feedstock, and raw product produced from yard waste, debris, argo industrial, recycling, and green waste processing facilities shall comply with Sections 2808.2 through 2808.1O."
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Section 4-4.20. Amendment: Size of piles.

Section 2808.3 of the CFC is amended to read as follows:

1. "2808.3 Size of piles. Piles shall not exceed 15 feet in height, 50 feet in width and 250 feet in length.”

2. Exception: The fire code official is authorized to allow the pile size to be increased when in accordance with section 2808.3.1."
Section 4-4.21. Amendment: Combustible waste.

Section 2808.5 of the CFC is amended to read as follows:

1. "2808.5 Combustible waste. The storage, accumulation and handling of combustible materials and control of vegetation shall comply with Chapter 3. All incoming materials shall be ground or incorporated within 10 days. All incoming materials shall be incorporated into windrows within 15 days. Internal temperatures of stockpiles shall be continuously monitored.

Section 4-4.22. Amendment: Emergency plan.

Section 2808.10 of the CFC is amended to read as follows:

1. "2808.10 Emergency plan. The owner or operator shall develop a plan for monitoring, controlling and extinguishing spot fires and submit the plan to the Ontario Fire Department Fire Prevention Bureau for review and approval. The plan shall include, but not be limited to methods and policies for:
a. Monitoring, controlling and extinguishing spot fires. b. Emergency contact information for personnel who are able to respond to location 24 hours a day, 7 days a week.
c. Onsite equipment to assist with firefighting operations, such as dozers, water tenders, and large tractors.
d. Special considerations for fire safety during extreme weather conditions.
e. Method of providing adequate onsite water supply for firefighting operation. Water system shall have a minimum delivery/replenish capability of 250 gallons per minute for 2 hours."
Section 4-4.23. Amendment: Buildings Other than One- and Two-family Dwellings, Group R-3 and R-4 buildings and townhomes.

Table 8105.2 of Appendix B is hereby deleted and Appendix B Section 8105.2 318
of the CFC is amended to read as follows:

1. "8105.2 Buildings other than one - and two -family dwellings. The minimum fire -flow and flow duration for buildin gs other than one - and two -family dwellings, Group R -3 and R -4 buildings and townhouses shall be as specified in Table 8105.1(2).

2. Exceptions:
a. A reduction in required fire-flow of up to 50 percent, as approved, is allowed when the building is provided with an approved sprinkler system installed in accordance with Section 903.3.1.1 or 903.3.1.2.

The resulting fire-flow shall not be less than 1,500 gallons per minute (5678 L/min) for the prescribed duration as specified in Table B105.1(2).
b. [SFM] Group B, S-2 and U occupancies having a floor area not exceeding 1,000 square feet, primarily constructed of
noncombustible exterior walls with wood or steel roof framing, having a Class A roof assembly, with uses limited to the following or similar uses:
b.1. California State Parks buildings of an accessory nature (restrooms).
b.2. Safety roadside rest areas, (SRRA), public restrooms. b.3. Truck inspection facilities, (TIF), CHP office space and vehicle inspection bays.
b.4. Sand/salt storage buildings, storage of sand and salt." Section 4-4.24. Remote Annunciation
Section 903.4.2.1 of the CFC is hereby added to read as follows:

1. “903.4.2.1 A dedicated fire alarm control unit for the fire sprinkler monitoring system shall be provided and located in an approved location, near the main entrance into the building for fire department use. An approved remote annunciator may be installed at the approved location in lieu of the fire alarm control unit. Zone indication on the remote annunciator may be required by the fire code official.” Section 4-4.25. Amendment: Monitoring
Section 904.3.5 of the CFC is hereby amended to read as follows:

1. “904.3.5 When a building fire alarm system or sprinkler monitoring system is installed, automatic fire-extinguishing systems shall be monitored by the building’s fire alarm control unit in accordance with NFPA 72.”
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SECTION 3. Filing of Ordinance. The Fire Chief shall transmit a copy of this Ordinance for filing to the State of California Building Standards Commission, pursuant to Health and Safety Code Section 17958.7. One copy of the Ontario Fire Code shall be placed on file in the Office of the City Clerk and is hereby adopted and made a part of this Chapter as if fully set forth at length herein.

SECTION 4. Repeal of Conflicting Ordinances. Ordinance No. 3 147, and all former ordinances or parts thereof conflicting or inconsistent with the provisions of this ordinance or of the Fire Code, as adopted and amended herein, are hereby repealed.

SECTION 5. Severability. Any section, paragraph, sentence or word of this ordinance or of the Fire Code as adopted and amended herein that for any reason has been determined to be invalid, it is the intent of the City Council that it will be considered severable from all other portions of this ordinance independent of the elimination therefrom of any such portion as may be declared invalid.

SECTION 6. Effective Date. This Ordinance shall take effect and be in force thirty (30) days after its final passage. From the date on which this Ordinance shall take effect, the provisions of the Ontario Fire Code shall be controlling within the City limits of the City of Ontario.

SECTION 7. CEQA. The City Council finds that the changes made to the California Fire Code and the International Fire Code are enacted to mitigate threats to public peace, health and safety from earthquakes, high winds and fire. Moreover, the amendments are substantially similar to those provisions previously enacted and contained in the current version of the City's Fire Code. Therefore, it can be seen with certainty that the adoption of this Ordinance will not have a significant adverse effect on the environment and is therefore exempt from the California Environmental Quality Act (CEQA) pursuant to section 15061(b)(3) of the CEQA Guidelines. Staff is directed to file a Notice of Exemption within five (5) days of the adopting of this Ordinance.

SECTION 8. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.
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PASSED, APPROVED, AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held November 15, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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ORDINANCE NO. __________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING CHAPTERS 1, 2, 3, 4, 5, 6, 7, 10, 11, 12, AND 14 OF TITLE 8 OF THE ONTARIO MUNICIPAL CODE, ADOPTING BY
REFERENCE THE 20 22 EDITION OF THE CALIFORNIA BUILDING
STANDARDS CODE, INCORPORATING THE 2022 CALIFORNIA
ADMINISTRATIVE CODE, THE 2022 CALIFORNIA BUILDING CODE, THE 2022 CALIFORNIA MECHANICAL CODE, THE 1997 CALIFORNIA
HOUSING CODE, THE 2022 CALIFORNIA ELECTRICAL CODE, THE 20 22 CALIFORNIA RESIDENTIAL CODE , THE 20 22 CALIFORNIA PLUMBING CODE, THE 2022 CALIFORNIA ENERGY CODE, THE 2021
INTERNATIONAL PROPERTY MAINTENANCE CODE , THE 20 22
CALIFORNIA GREEN BUILDING STANDARDS CODE, THE 2022 HISTORIC BUILDING CODE , 2022 CALIFORNIA EXISTI NG BUILDING CODE , AND THE 20 22 CALIFORNIA REFERENCED STANDARDS , TOGETHER WITH CERTAIN AMENDMENTS THERETO.

WHEREAS, pursuant to Government Code Section 50022.1 et seq., the City of Ontario , California ("City") may adopt by reference the 20 22 Edition of the California Building Standards Code as provided in Titles 24 and 25 of the California Code of Regulations and other codes, including, without limitation, the Uniform Housing Code and the Uniform Code for the Abatement of Dangerous Buildings; and WHEREAS, the California Building Standards Commission recently adopted the 2022 Edition of the California Building Standards Code; and WHEREAS, California Health and Safety Code Sections 17958.7 and 18941.5 authorize cities to adopt the California B uilding Standards Code with modifications that are determined to be reasonably necessary because of local climatic, geological, or topographical conditions; and
WHEREAS, prior to making modifications permitted under California Health and Safety Code Sections 17958.7 and 18941.5, the City Council is required to make express findings that such modifications are needed in accordance with California Health and Safety Code Sections 17958.7; and
WHEREAS, the City desires to adopt the California Building Standards Code with the necessary amendments to assure it is tailored to the safety needs of the City as required by its unique climatic, geological, and topographical conditions; and WHEREAS, the City held a public hearing on November 15, 2022, at which time all interested persons had the opportunity to appear and be heard on the matter of adopting the Codes as amended herein; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, DOES ORDAIN AS FOLLOWS:

SECTION 1. Findings. The City Council hereby finds that the proposed amendments to California Building Code Section 113.4 are necessary for administrative or procedural clarification and to establish administrative standards for the effective enforcement of the building standards of the City of Ontario and does not modify a building standard pursuant to California Health & Safety Code Section 17958, 17958.7, and/or 18941.5.

SECTION 2. Chapter 1 of Title 8 of the Ontario Municipal Code is amended in its entirety to read asfollows:

Chapter 1 – Administrative and Building Code
Section 8-1.01. Adoption of the Administrative Code
The 2022 Edition of the California Administrative Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 1, is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

Section 8-1.02. Adoption of the Building Code
The 2022 Edition of the California Building Code , as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 2, Volumes 1 and 2, subject to the amendments set forth in this chapter, is hereby adopted by reference and made a part of this chapter as if full y set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

Section 8-1.03. Amendment: Section 113.4
Section 113.4 is added to the California Building Code to read as follows:

1. 113.4 Ontario Building Appeals Board. The City Manager shall recommend to the City Council five (5) individuals desirous to serve on the Building Appeals Board who are qualified by experience and training to pass on matters pertaining to building construction and are no t employees of the City. Each Board Member's term on the Building Appeals Board shall remain indefinite unless the Board Member resigns, or the City Council wishes to designate a new Board Member in its discretion. Should any Board Member be unable to cont inue serving on the Building Appeals Board, he or she shall submit a written resignation to the City Manager as soon as possible. The City Manager shall, in turn, present a recommended replacement to the City Council for appointment.

Section 8-1.04. Amendment: Part 2, Volume 1, Section 105.2 324
Section 105.2 is amended as follows:

1. All walls over 3 ft (36 inches) require a building permit and all retaining walls over 2 ft (24 inches) require a building permit.

Section 8-1.05. Amendment: Part 2, Volume 2, Section 1609A Section 1609A is amended as follows:
1, The City of Ontario design criteria for all structures built within the City is 110 MPH winds, Exposure C, Seismic Zone D
Section 8-1.06. Amendment: Part 2, Volume 2, Section 1613A Section 1613A is amended as follows:

1. The City of Ontario design criteria for all structures built within the City is 110 MPH winds, Exposure C, Seismic Zone D ; and

2. Because of the City’s proximity to the San Andreas fault, all underground pipe, conduit, a nd lines will be shaded with cleaned dirt void of any rocks or clean sand, six inches below and twelve inches above said pipe, conduit, or line. All electrical metal conduit will need a ground conductor, the metal conduit will not act as the ground conductor.

SECTION 3. Chapter 2 of Title 8 of the Ontario Municipal Code is amended in its entirety to read as follows:

Chapter 2 - Mechanical Code
Section 8-2.01. Adoption of the Mechanical Code
The 2022 Edition of the California Mechanical Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 4, is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in th e office of the City Clerk for public review.

SECTION 4. Chapter 3 of Title 8 of the Ontario Municipal Code is amended in its entirety to read as follows:

Chapter 3 - Housing Code
Section 8-3.01. Adoption of Housing Code
The 1997 Edition of the Uniform Housing Code, as published by the International Conference of Building Officials, one (1) copy of which is on file for 325
public review in the office of the City Clerk, is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein.

SECTION 5. Chapter 4 of Title 8 of the Ontario Municipal Code is amended in its entirety to read as follows:

Chapter 4 - Electrical Code
Section 8-4.01. Adoption of the Electrical Code
The 2022 Edition of the California Electrical Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 3 , is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

SECTION 6. Chapter 5 of Title 8 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Chapter 5 - Residential Code
Section 8-5.01. Adoption of the Residential Code
The 2022 Edition of the California Residential Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 2.5 , is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

Section 8-5.02. Amendment: Section R310.5
Section R310.5 is amended as follows:

1. Retro-fit windows require a building permit and shall conform to the 2022 standards for emergency egress.

SECTION 7. Chapter 6 of Title 8 of the Ontario Municipal Code isamended in its entirety to read as follows:

Chapter 6 - General Provisions
Section 8-6.01. Fees
Fees for any permit, license or other approval issued pursuant to any of the codes adopted by this title shall be as set forth by resolution of the City Council.

Section 8-6.02. Violations
Violations of any provision of any of the codes adopted by this title shall subject 326
the violator to any or all of the penalties provided in this code or applicable law.

SECTION 8. Chapter 7 of Title 8 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Chapter 7 - Plumbing Code
Section 8-7.01. Adoption of the Plumbing Code
The 2022 Edition of the California Plumbing Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 5, is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

SECTION 9. Chapter 1 0 of Title 8 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Chapter 10 – Energy Code
Section 8-10.01. Adoption of the Energy Code
The 2022 Edition of the California Energy Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 6 , is hereby adopted by reference and made a part of this chapter as if fully set forth at length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

SECTION 10. Chapter 11 of Title 8 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Chapter 11 - International Property Maintenance Code
Section 8-11.01. Adoption of the International Property Maintenance Code
The 2021 Edition of the International Property Maintenance Code, including the administration chapter, one (1) copy of which is on file for public review in the office of the City Clerk, is hereby adopted by referen ce and made a part of this chapter as if fully set forth at length herein.

SECTION 11. Chapter 12 of Title 8 of the Ontario Municipal Code is hereby amended in its entirety to read as follows:

Chapter 12 - Green Building Standards Code
Section 8-12.01. Adoption of California Green Building Standards Code 327
The 2022 Edition of the California Green Buildings Standards Code , as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 11 , is hereby adopted by reference and made a part of this chapter as if fully set forth as length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

SECTION 12. Chapter 14 of Title 8 of the Ontario Municipal Cod e is hereby amended in its entirety to read as follows:

Chapter 14 - Historic Building Code, Existing Building Code and Referenced Standards
Section 8-14.01. Adoption of California Historic Building Code The 2022 Edition of the California Historic Building Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 8, is hereby adopted by reference and made a part of this chapter as if fully set forth as length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

Section 8-14.02. Adoption of California Existing Building Code The 2022 Edition of the California Existing Building Code, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 10, is hereby adopted by reference, and made a part of this chapter as if fully set forth as length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

Section 8-14.03. Adoption of California Referenced Standards The 2022 Edition of the California Referenced Standards, as adopted by the California Building Standards Commission in California Code of Regulations Title 24, Part 12, is hereby adopted by reference, and made a part of this chapter as if fully set forth as length herein. One (1) copy of said code is on file in the office of the City Clerk for public review.

SECTION 13. Filing of Ordinance. The Building Official shall transmit a copy of this Ordinance for filing to the State of California Building Standards Commission, pursuant to Health and Safety Code Section 17958.7. One copy of the Ontario Building Code shall be placed on file in the Office of the City Clerk and is hereby adopted and made a part of this Chapter as if fully set forth at length herein.

SECTION 14. Repeal of Conflicting Ordinances. Ordinance No. 3148, all former ordinances, or parts thereof conflicting or inconsistent with the provisions of this ordinance, as adopted and amended herein, are hereby repealed.

SECTION 15. Severability. If any section, subsection, subdivision, paragraph, sentence, clause, or phrase added by this Ordinance , or any part 328
thereof, is for any reason held to be unconstitutional or invalid or in effective by any court of competent jurisdiction, suc h decision shall not affect the validity or effectiveness of the remaining portions of this Ordinance or any part thereof. The City Council hereby declares that it would have passed each section, subsection, subdivision, paragraph, sentence, clause or phra se thereof irrespective of the fact that any one or more subsections, subdivisions, paragraphs, sentences, clauses or phrases are declared unconstitutional, invalid or ineffective.

SECTION 16. CEQA. The City Council finds that the changes made to the California Building Code and the International Building Code are enacted to mitigate threats to public peace, health and safety from earthquakes, high winds and fire.

Moreover, the amendments are substantially similar to those provisions previously enacted and contained in the current version of the City's Building Code. Therefore, it can be seen with certainty that the adoption of this Ordinance will not have a significant adverse effect on the environment and is therefore exempt from the California Environmental Quality Act (CEQA) pursuant to section 15061(b)(3) of the CEQA Guidelines. Staff is directed to file a Notice of Exemption within five (5) days of the adopting of this Ordinance.

SECTION 17. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within fifteen (15) days of the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
329

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. _______ was duly introduced at a regular meeting of the City Council of the City of Ontario held _____________ and adopted at the regular meeting held November 15, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
330
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: 22
SUBJECT:

RESOLUTIONS OF NECESSITY FOR THE ACQUISITION BY EMINENT DOMAIN OF

FEE INTERESTS IN CERTAIN REAL PROPERTIES LOCATED ON EAST HOLT BOULEVARD, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL NOS. 1048- 481-27; 1048-481-07; 1048-481-28; AND 1048-481-29

CITY OF ONTARIO
Agenda Report
November 15, 2022
SECTION:

PUBLIC HEARINGS

RECOMMENDATION:

That the City Council conduct a public hearing and adopt Resolutions of Necessity declaring that the acquisition of fee interests in certain real properties located on East Holt Boulevard, more particularly described as Assessor Parcel Nos. 1048-481-27; 1048-481-07; 1048-481-28; and 1048-481-29, is necessary for the construction of affordable housing.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

If approved, appropriations adjustments in the Ontario Housing Authority will be included in the First Quarter Budget Update
to cover the acquisition costs. Deposits to ﬁle the
Resolution of Necessity total $8,977,000.

BACKGROUND & ANALYSIS:

The Property consists of four parcels located on East Holt Boulevard, as shown on Exhibit "A" ("Property"), for the construction of Vista Verde II aﬀordable housing project ("Project"). The City seeks to acquire a full fee interest in each parcel referenced above.

The City obtained an appraisal of the Property from Bradford D. Thompson, MAI, AI-GRS, SR/WA, and Scott J. Thompson, MAI, AI-SRS, SR/WA of Thomson & Thompson Real Estate Valuation and Consulting Inc., and made oﬀers of just compensation to the property owners for the acquisitions pursuant to California Government Code section 7267.2. The City retained Interwest to assist with acquisitions and relocations. Following standard public records and due diligence searches for ownership information, a notice of this public hearing was mailed to the property owners. City staﬀ has attempted to negotiate voluntary settlements and will continue to do so.

Notice of the Resolution of Necessity hearing were mailed to each Property owner on October 28, 331
2022 by regular U.S. Mail.

The power of eminent domain is used by the City only as a last resort to obtain interests necessary for projects after 1) negotiations have stalled; or 2) the owner has requested that the City proceed directly to eminent domain for tax or other advantages; or 3) the eminent domain process is necessary to clear title to the property. In this case, oﬀers of just compensation were made to the owners for the full Fair Market Value as determined by an independent appraisal. City staﬀ attempted to acquire amicable settlement in good faith and will continue to do so throughout the process.

DESCRIPTION OF PROPERTY TO BE ACQUIRED:

The Property aﬀected by the proposed acquisition is
located within the City of Ontario, at 907 East Holt Boulevard (B. Patel Family Trust); 935 East Holt Boulevard (Jimenez); 957 East Holt Boulevard (Harb); and vacant land with no situs address, aka:
957 East Holt Boulevard (Dali III, LLC). The Property is being condemned for the Project.

HEARINGS AND REQUIRED FINDINGS:

The recommended actions of the City Council pertain to the acquisition property owned by:
907 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-27: B. Patel Family Trust; 935 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-07: Jose G. Jimenez; 957 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-28: Maan F. Harb and Nadim F.

Harb; and
957 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-29: Dali III, LLC California eminent domain law provides that a public entity may not commence an eminent domain proceeding until its governing body has adopted a Resolution of Necessity, which resolution may only be adopted after the governing body has given each party with an interest in the aﬀected property or their representatives a reasonable opportunity to appear and be heard on the following matters:
1 .

The public interest and necessity require the proposed project. 2 .

The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury.
3 .

The real property to be acquired is necessary for the project. 4 .

The offer of just compensation has been made to the property owner.

The notice of hearing were mailed on October 28, 2022 by ﬁrst class mail to the property owners in accordance with Section 1245.235 of the California Code of Civil Procedure.

The above four required findings are addressed as follows:
1 .

The Public Interest and Necessity Require the Proposed Project Over the last several years the City has partnered with highly regarded housing developers to fulﬁll the City's commitment to increase the availability of affordable housing. 332

In 2020, Emporia Place, a 74-unit smoke-free aﬀordable planned community located on the southeast corner of Holt Boulevard and Vine Avenue was completed. Amenities include a community room, splash pad, laundry facilities, a computer lab, and on-site management. These for rent apartments are highly desired by Ontario resident for households earning 60 percent below the area median income for San Bernardino County.

In 2021, the 101-unit Vista Verde aﬀordable housing project located on the northeast corner of Holt Boulevard and Virginia Avenue opened to the public. This high-quality project houses families
who earn between 30 and 60 percent of the area median income in Ontario. T his project is an
integral part of the City’s plan to demonstrate a sustainable community. Vista Verde is one of the ﬁrst all-electric, zero net energy communities, designed and constructed using cost-eﬃcient technologies and innovative approaches to prepare for a world of bike-and pedestrian-friendly communities that encourage healthier lifestyles and reduce pollution. This sustainable development has a low carbon footprint, improving the quality of life for the community as a whole.

Vista Verde II is the next planned community to oﬀer aﬀordable housing to Ontario residents. The project is slated for the northeast corner of Holt Boulevard and Allyn Avenue and will be a continuance of the City's commitment in supporting the development of aﬀordable housing in the City of Ontario.

2 .

The Project is Planned or Located in a Manner That Will be Most Compatible With the Greatest Public Good and the Least Private Injury
The proposed Project will support the City Council’s goals and objectives and implement land use and development goals as stated in the Policy Plan component of the General Plan. The proposed Project is intended to minimize impacts on performing private assets along East Holt Boulevard while allowing for joint development opportunities with investment partners. The proposed Project also addresses absentee property owners and will allow for the removal of blighted and underutilized property in the area. The properties to be acquired are best suited for the Project and will cause the least private injury. To move this Project elsewhere would require signiﬁcant land use policy changes, cause a greater impact to local property owners, and would eﬀectively be cost prohibitive.
3 .

The Real Property to be Acquired is Necessary for the Proposed Project The Property aﬀected by the proposed acquisition is located within the City of Ontario, on East Holt Boulevard, located at 907 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-27 (owned by B. Patel Family Trust); 935 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-07 (owned by Jose Jimenez); 957 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-28 (owned by Maan F. Harb and Nadim F. Harb); and 957 East Holt Boulevard, Ontario, California, 91761, APN 1048-481-29 (owned by Dali III, LLC). The Property is necessary for the Project. The acquisition is necessary to allow for the construction of affordable housing. 4 .

The Offer of Just Compensation Has Been Made
333
Appraisals were prepared by Bradford D. Thompson, MAI, AI-GRS, SR/WA, and Scott J. Thompson, MAI, AI-SRS, SR/WA of Thomson & Thompson Real Estate Valuation and Consulting Inc., to establish the Fair Market Value of the fee interest of each Property the City is seeking to acquire. An oﬀer of just compensation was made to each record owner to purchase the fee interest in the Property to be acquired, as established by the approved appraisal and as required by Section 7267.2 of the California Government Code. Although negotiated settlements may still be possible for the fee interests cited above, it would be appropriate to commence the procedures to acquire the necessary interest through eminent domain.

ENVIRONMENTAL ANALYSIS:

Pursuant to the State of California Environmental Quality Act Guidelines Section 15183 t
here has been compliance by the City with the requirements of the California Environmental Quality Act.

334
EXHIBIT 1

Ontario Housing
Authority
Jose G. Jimenez B. Patel Family Trust Dali III, LLC Mann F. Harb

Miller
Family
Trust
(Willing
Seller)

335
RESOLUTION NO.________

A RESOLUTION OF NECESSITY OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, FOR THE ACQUISITION BY EMINENT

DOMAIN OF A FEE SIMPLE INTEREST OF CERTAIN REAL PROPERTY LOCATED AT 907 EAST HOLT BOULEVARD, ONTARIO, CALIFORNIA, 91761, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL
NO. 1048-481-27, FOR AFFORDABLE HOUSING.

WHEREAS, the City of Ontario (the "City") proposes to acquire, by eminent domain, a fee simple interest of real property located on East Holt Boulevard, at 907 East Holt Boulevard, Ontario, California, 91761, more particularly described as Assessor Parcel Number 1048-481-27, for the construction of affordable housing for the City of Ontario’s Vista Verde II Project in the City of Ontario, San Bernardino County, California, pursuant to the authority granted to it by Section 37350.5 of the California Government Code; and
WHEREAS, pursuant to Section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for Tuesday, November 15, 2022, at 6:30 p.m. at the Ontario City Hall, Council Chambers, 303 East “B” Street, Ontario, California, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in Section 1240.030 of the California Code of Civil Procedure; and WHEREAS, said hearing has been held by the City and each person whose property is to be acquired by eminent domain was afforded an opportunity to be heard on said matters; and
WHEREAS, the City may now adopt a Resolution of Necessity pursuant to Section 1240.040 of the California Code of Civil Procedure.

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

SECTION 1. Compliance with California Code of Civil Procedure and California Environmental Quality Act. There has been compliance by the City with the requirements of Section 1245.235 of the California Code of Civil Procedure and the California Environmental Quality Act.

SECTION 2. Public Use. The public uses for which the real property interest is to be acquired are for construction of construction of affordable housing for the City of Ontario’s Vista Verde II Project in the City of Ontario, San Bernardino County, California.

Section 37350.5 of the California Government Code authorizes the City to acquire by eminent domain real property necessary for such purposes.

SECTION 3. Description of Property. Attached and marked as Exhibit A are the legal definition, description, and depiction of the real property to be acquired by the 336
City, which describes the general location and extent of the property to be acquired with sufficient detail for reasonable identification.

SECTION 4. Findings. The City hereby finds and determines each of the following:
(a) The public interest and necessity require the proposed project. (b) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and least private injury.
(c) The fee interest described in Exhibit A is necessary for the proposed project.
(d) The offer required by Section 7267.2 of the California Government Code was made.

SECTION 5. Further Activities. Counsel for the City is hereby authorized to file legal proceedings necessary to acquire the hereinabove described real property in the name of and on behalf of the City by eminent domain, and counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Legal counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use said real property at the earliest possible time. Counsel is further authorized to correct any errors or to make or agree to non-material changes in the legal description of the real property that are deemed necessary for the conduct of the condemnation action or other proceedings or transaction required to acquire the subject real property.

SECTION 6. Effective Date. This Resolution shall take effect upon adoption.

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

PASSED, APPROVED AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
337
APPROVED AS TO LEGAL FORM:
_______________________________

BEST, BEST & KRIEGER LLP

CITY ATTORNEY
338
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 November 15, 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 November 15, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
339
PRELIMINARY REPORT Fidelity National Title Company
Your Reference: Order No.: 997-30089396-MAM
CLTA Preliminary Report Form – Modified (11/17/06) Page 3

EXHIBIT A

LEGAL DESCRIPTION

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

PARCEL 2 OF PARCEL MAP NO. 9337, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 114, PAGES 96 AND 97 OF PARCEL MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

APN: 1048-481-27-0-000
340

341
46700.10305\40807311.1
Legal Definition
The following is the definition of legal rights to be acquired by the City of Ontario:
“Fee” also known as fee simple or fee simple absolute, grants to the City of Ontario absolute ownership of the property.
342
RESOLUTION NO.________

A RESOLUTION OF NECESSITY OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, FOR THE ACQUISITION BY EMINENT

DOMAIN OF A FEE SIMPLE INTEREST OF CERTAIN REAL PROPERTY LOCATED AT 935 EAST HOLT BOULEVARD, ONTARIO, CALIFORNIA, 91761, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL
NO. 1048-481-07, FOR AFFORDABLE HOUSING.

WHEREAS, the City of Ontario (the "City") proposes to acquire, by eminent domain, a fee simple interest of real property located on East Holt Boulevard, at 935 East Holt Boulevard, Ontario, California 91761, more particularly described as Assessor Parcel Number 1048-481-07, for the construction of affordable housing for the City of Ontario’s Vista Verde II Project in the City of Ontario, San Bernardino County, California, pursuant to the authority granted to it by Section 37350.5 of the California Government Code; and WHEREAS, pursuant to Section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for Tuesday, November 15, 2022, at 6:30 p.m. at the Ontario City Hall, Council Chambers, 303 East “B” Street, Ontario, California, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in Section 1240.030 of the California Code of Civil Procedure; and WHEREAS, said hearing has been held by the City and each person whose property is to be acquired by eminent domain was afforded an opportunity to be heard on said matters; and
WHEREAS, the City may now adopt a Resolution of Necessity pursuant to Section 1240.040 of the California Code of Civil Procedure.

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

Section 37350.5 of the California Government Code authorizes the City to acquire by eminent domain real property necessary for such purposes.

SECTION 3. Description of Property. Attached and marked as Exhibit A are the legal definition, description, and depiction of the real property to be acquired by the 343
City, which describes the general location and extent of the property to be acquired with sufficient detail for reasonable identification.

SECTION 4. Findings. The City hereby finds and determines each of the following:
(a) The public interest and necessity require the proposed project; (b) The proposed project is planned or located in the manner that will be most compatible with the greatest public good and least private injury;
(c) The fee interest described in Exhibit A is necessary for the proposed project;
(d) The offer required by Section 7267.2 of the California Government Code was made.

SECTION 6. Effective Date. This Resolution shall take effect upon adoption.

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

PASSED, APPROVED AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
344
APPROVED AS TO LEGAL FORM:
_______________________________

BEST, BEST & KRIEGER LLP

CITY ATTORNEY
345
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 November 15, 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 November 15, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
346

EXHIBIT A

LEGAL DESCRIPTION
FEE

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 1:

THE WEST 87 FEET OF THE SOUTH ONE-HALF OF THE EAST ONE-HALF OF LOT 6, ACCORDING TO THE

REVISED MAP OF HANSON AND COMPANY'S ADDITION TO ONTARIO, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 12, PAGE 51 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

EXCEPT THEREFROM THE SOUTH 10 FEET, AS CONVEYED TO THE CITY OF ONTARIO BY DEED RECORDED JULY 26, 1973, IN BOOK 8233, PAGE 679 OF OFFICIAL RECORDS PARCEL 2:

THE SOUTH 29T5 FEET OF THE EAST 43.5 FEET OF THE EAST ONE-HALF OF THE WEST ONE-HALF OF LOT 6, ACCORDING TO THE REVISED MAP OF HANSON AND COMPANY'S ADDITION TO ONTARIO, IN

THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER MAP FILED IN BOOK 12, PAGE 51 OF MAPS, IN THE OFFICE OF THE COUNTY RECORDER OF SAID COUNTY.

EXCEPT THEREFROM THE SOUTH 10 FEET, AS CONVEYED TO THE CITY OF ONTARIO BY DEED RECORDED JULY 26, 1973, IN BOOK 8233, PAGE 679 OF OFFICIAL RECORDS APN 1048-481-07-0-000
347

THIS RAP IS FOR THE PURPOSE
OF AD VALOREW TAXATION ONLY.

BILL POSTMUS, Assessor
1 — — —WO C-T A— —
ICI I
: Par. 2
III II
Ptn. Revised Map of Hanson Co's Add.

M.B. 12/51
2 — —
Portel Mop No 9337, P.M 114/96-97
October 2004 Porcel Mop No, 291, P M. 4/68
cp
City of Ontario
Tax Rate Area
4001
1048 — 48
1-8 t
Ptn. S.E.1/4, Sec.20
T.1S.,R.7W.

Assessor's Map
Book 1048 Page 48
San Bernardino County
—

REVISED
12/09/08 01.
348
46700.10305\40807311.1
Legal Definition
The following is the definition of legal rights to be acquired by the City of Ontario:
“Fee” also known as fee simple or fee simple absolute, grants to the City of Ontario absolute ownership of the property.
349
RESOLUTION NO. ________

A RESOLUTION OF NECESSITY OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, FOR THE ACQUISITION BY EMINENT

DOMAIN OF A FEE SIMPLE INTEREST OF CERTAIN REAL PROPERTY LOCATED AT 957 EAST HOLT BOULEVARD, ONTARIO, CALIFORNIA, 91761, MORE PARTICULARLY DESCRIBED AS ASSESSOR PARCEL
NO. 1048-481-28, FOR AFFORDABLE HOUSING.

WHEREAS, the City of Ontario (the "City") proposes to acquire, by eminent domain, a fee simple interest of real property located on East Holt Boulevard, at 957 East Holt Boulevard, Ontario, California, 91761, more particularly described as Assessor Parcel Number 1048-481-28, for the construction of affordable housing for the City of Ontario’s Vista Verde II Project in the City of Ontario, San Bernardino County, California, pursuant to the authority granted to it by Section 37350.5 of the California Government Code; and
WHEREAS, pursuant to Section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for Tuesday, November 15, 2022, at 6:30 p.m. at the Ontario City Hall, Council Chambers, 303 East “B” Street, Ontario, California, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in Section 1240.030 of the California Code of Civil Procedure; and WHEREAS, said hearing has been held by the City and each person whose property is to be acquired by eminent domain was afforded an opportunity to be heard on said matters; and
WHEREAS, the City may now adopt a Resolution of Necessity pursuant to Section 1240.040 of the California Code of Civil Procedure.

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

Section 37350.5 of the California Government Code authorizes the City to acquire by eminent domain real property necessary for such purposes.

SECTION 3. Description of Property. Attached and marked as Exhibit A are the legal definition, description and depiction of the real property to be acquired by the 350
City, which describes the general location and extent of the property to be acquired with sufficient detail for reasonable identification.

SECTION 6. Further Activities. Counsel for the City is hereby authorized to file legal proceedings necessary to acquire the hereinabove described real property in the name of and on behalf of the City by eminent domain, and counsel is authorized to institute and prosecute such legal proceedings as may be required in connection therewith. Legal counsel is further authorized to take such steps as may be authorized and required by law, and to make such security deposits as may be required by order of court, to permit the City to take possession of and use said real property at the earliest possible time. Counsel is further authorized to correct any errors or to make or agree to non-material changes in the legal description of the real property that are deemed necessary for the conduct of the condemnation action or other proceedings or transaction required to acquire the subject real property.

SECTION 7. Effective Date. This Resolution shall take effect upon adoption.

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

PASSED, APPROVED AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
351
APPROVED AS TO LEGAL FORM:
_______________________________

BEST, BEST & KRIEGER LLP

CITY ATTORNEY
352
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 November 15, 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 November 15, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
353

EXHIBIT A

LEGAL DESCRIPTION
FEE

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 2 OF THAT CERTAIN LOT LINE ADJUSTMENT 08-007, IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, RECORDED NOVEMBER 10, 2008 AS INSTRUMENT NO. 2008-491390 OF OFFICIAL RECORDS, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT ON THE NORTH LINE OF HOLT BOULEVARD BEING 40 FEET WIDE AND DISTANT

34.93 FEET WEST OF THE SOUTHEAST CORNER OF LOT 6 AS SHOWN ON THE REVISED MAP OF HANSON AND COMPANY'S ADDITION TO ONTARIO, FILED IN BOOK 12, PAGE 51 OF MAPS, RECORDS OF SAID SAN BERNARDINO COUNTY, CALIFORNIA; THENCE NORTH 0° 01 12" EAST A DISTANCE OF 371.30 FEET TO A POINT WHICH IS 258 FEET SOUTH OF THE NORTH LINE OF THE AFORESAID LOT 6; THENCE NORTH 89° 58' 03" EAST 139.17 FEET TO A POINT WHICH IS 258 FEET SOUTH OF THE NORTH LINE OF SAID LOT 6, SAID POINT ALSO BEING ON THE EAST LINE OF THE WEST 1 AND 1/2 ACRES OF LOT 7 OF THE AFOREMENTIONED HANSON AND COMPANY'S ADDITION TO ONTARIO; THENCE SOUTH 00 01' 09" WEST A DISTANCE OF 371.39 FEET TO THE NORTH LINE OF HOLT BOULEVARD (BEING 40 FEET WIDE); THENCE WEST ALONG THE NORTH LINE OF HOLT BOULEVARD A DISTANCE OF 139.19 FEET TO THE POINT OF BEGINNING.

APN: 1048-481-28
354

IRIS UAP IS FOR TOE PURPOSE
OF AD MOHR TAXATION ONLY.

BILL POSTMUS, Assessor
1 — — —WO C-T A— —
141 I
: Pan 2
11-0 H — —
Ptn. Revised Map of Hanson Co's Add.

M.B. 12/51
Porte' Mop No 9337, P.M 114/96-97
October 2004 Porce1 Mop No, 291, P M. 4/68
Ptn. S.E.1/4, Sec.20
T.1S.,R.7W.

City of Ontario
Tax Rate Area
4001
1048 — 48
51-RECT
Assessor's Map
Book 1048 Page 48
San Bernardino County
—

REVISED
12/09/08 01
355
46700.10305\40807311.1
Legal Definition
The following is the definition of legal rights to be acquired by the City of Ontario:
“Fee” also known as fee simple or fee simple absolute, grants to the City of Ontario absolute ownership of the property.
356
RESOLUTION NO.________

A RESOLUTION OF NECESSITY OF THE CITY COUNCIL OF THE CITY

OF ONTARIO, CALIFORNIA, FOR THE ACQUISITION BY EMINENT

WHEREAS, the City of Ontario (the "City") proposes to acquire, by eminent domain, a fee simple interest of real property located on East Holt Boulevard, at 957 East Holt Boulevard, Ontario, California, 91761, more particularly described as Assessor Parcel Number 1048-481-29, for the construction of affordable housing for the City of Ontario’s Vista Verde II Project in the City of Ontario, San Bernardino County, California, pursuant to the authority granted to it by Section 37350.5 of the California Government Code; and
WHEREAS, pursuant to Section 1245.235 of the California Code of Civil Procedure, the City scheduled a public hearing for Tuesday, November 15, 2022, at 6:30 p.m. at the Ontario City Hall, Council Chambers, 303 East “B” Street, Ontario, California, and gave to each person whose property is to be acquired and whose name and address appeared on the last equalized county assessment roll, notice and a reasonable opportunity to appear at said hearing and be heard on the matters referred to in Section 1240.030 of the California Code of Civil Procedure; and WHEREAS, said hearing has been held by the City and each person whose property is to be acquired by eminent domain was afforded an opportunity to be heard on said matters; and
WHEREAS, the City may now adopt a Resolution of Necessity pursuant to Section 1240.040 of the California Code of Civil Procedure.

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

Section 37350.5 of the California Government Code authorizes the City to acquire by eminent domain real property necessary for such purposes.

SECTION 3. Description of Property. Attached and marked as Exhibit A are the legal definition, description and depiction of the real property to be acquired by the 357
City, which describes the general location and extent of the property to be acquired with sufficient detail for reasonable identification.

SECTION 6. Effective Date. This Resolution shall take effect upon adoption.

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

PASSED, APPROVED AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
358
APPROVED AS TO LEGAL FORM:
_______________________________

BEST, BEST & KRIEGER LLP

CITY ATTORNEY
359
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 November 15, 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 November 15, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
360

EXHIBIT A FEE

LEGAL DESCRIPTION

THE LAND REFERRED TO HEREIN BELOW IS SITUATED IN THE CITY OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AND IS DESCRIBED AS FOLLOWS:

PARCEL 1, AS SHOWN ON CERTIFICATE APPROVING A LOT LINE ADJUSTMENT NO. 08-007, IN THE CITY

OF ONTARIO, COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS EVIDENCED BY DOCUMENT RECORDED NOVEMBER 10, 2008, AS INSTRUMENT NO. 2008-0491390. OF OFFICIAL RECORDS, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT ON THE NORTH LINE OF HOLT BOULEVARD BEING 40 FEET WIDE AND DISTANT

34.93 FEET WEST OF THE SOUTHEAST CORNER OF LOT 6, AS SHOWN ON THE REVISED MAP OF HANSON AND COMPANY'S ADDITION TO ONTARIO, FILED IN BOOK 12, PAGE 51 OF MAPS, RECORDS OF SAID SAN BERNARDINO COUNTY, CALIFORNIA; THENCE CONTINUING WEST ALONG THE NORTH LINE OF HOLT BOULEVARD A DISTANCE OF 139.19 FEET TO A POINT ON THE EAST LINE OF THE EAST 1/2 OF THE EAST 5 ACRES OF LOT 6 OF THE AFORESAID HANSON AND COMPANY'S ADDITION TO ONTARIO; THENCE NORTH 0° 01' 20" EAST ALONG SAID EAST LINE A DISTANCE OF 371.22 FEET TO A POINT WHICH IS 258 FEET SOUTH OF THE NORTH LINE OF THE AFORESAID LOT 6; THENCE NORTH 89° 58' 03" EAST A DISTANCE OF 139.18 FEET TO A POINT WHICH IS 258 FEET SOUTH OF THE NORTH LINE OF SAID LOT 6 AND 34.91 FEET WEST OF THE EAST LINE OF SAID LOT 6; THENCE SOUTH 0° 01' 12" WEST A DISTANCE OF 371.30 FEET TO THE POINT OF BEGINNING.

APN: 1048-481-29-0-000
361

THIS RAP IS FOR THE PURPOSE
OF AD VALOREW TAXATION ONLY.

BILL POSTMUS, Assessor
1 — — —WO C-T A— —
ICI I
: Par. 2
III II
Ptn. Revised Map of Hanson Co's Add.

M.B. 12/51
2 — —
Portel Mop No 9337, P.M 114/96-97
October 2004 Porcel Mop No, 291, P M. 4/68
cp
City of Ontario
Tax Rate Area
4001
1048 — 48
1-8 t
Ptn. S.E.1/4, Sec.20
T.1S.,R.7W.

Assessor's Map
Book 1048 Page 48
San Bernardino County
—

REVISED
12/09/08 01.
362
46700.10305\40807311.1
Legal Definition
The following is the definition of legal rights to be acquired by the City of Ontario:
“Fee” also known as fee simple or fee simple absolute, grants to the City of Ontario absolute ownership of the property.
363
Department: Investments & Revenue Resources
Prepared By: Nathaniel Gibson
Staff Member Presenting:

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

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 23
SUBJECT:

A RESOLUTION AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 55 (PARKLANE) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT NOT TO EXCEED $11 MILLION AND

RELATED MATTERS

CITY OF ONTARIO
Agenda Report
November 15, 2022
SECTION:

ADMINISTRATIVE

REPORTS/DISCUSSION/ACTION

RECOMMENDATION:

That the City Council consider and adopt a Resolution authorizing the issuance of City of Ontario Community Facilities District No. 55 (Parklane) Special Tax Bonds, Series 2022.

A
.

Authorize the issuance of special tax bonds for public improvements required to facilitate the development of the Parklane 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.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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

The use of Mello-Roos ﬁnancing for public facilities in the residential development of the Parklane project in the Ontario Ranch development, is estimated to generate approximately $11 million based on current market interest rates. These funds will be used to help fund a portion of the public infrastructure improvements that will serve the project area. The Resolution authorizing the issuance of City of Ontario Community Facilities District No. 55 (Parklane) Special 364
Tax Bonds, Series 2022, and related matters, limits the principal amount of the bonds to $11 million. The City currently expects the bonds to be sold no later than December 2022; however, such schedule could change based on market volatility and market conditions. Since Mello-Roos bonds are not a direct obligation of the City and are paid from special taxes levied on each taxable parcels in the applicable community facilities district, there is no impact to the General Fund from the issuance of Mello-Roos bonds. Annual approval by the City Council will be required to process the special tax levies necessary to fund the ongoing debt service obligations of Ontario Community Facilities District No. 55 (Parklane).

BACKGROUND & ANALYSIS:

The Mello-Roos Community Facilities Act of 1982 provides local government, with the requisite consent and approval from the property owners, the authority to establish community facilities districts for levying special taxes to fund governmental services and ﬁnance various kinds of public infrastructure facilities. Under the Mello-Roos Act, the initial steps in the formation of a community facilities district to ﬁnance public improvements are adopting a Resolution declaring the City's intention to establish a community facilities district and levy special taxes, and a Resolution to issue bonds. On November 3, 2020 the City Council, in accordance with the Mello-Roos Act, took the initial steps in the formation of the District with the adoption of Resolution No. 2020-181, declaring the City's intention to establish the District and to authorize the levy of special taxes, and Resolution No. 2020-182 deeming it necessary for the District to incur bonded indebtedness. On December 15, 2020, the City Council adopted Resolution No. 2020-207 forming the District. Based on a successful property owner election held on December 15, 2020, the City Council adopted Ordinance No. 3177 on January 19, 2021, authorizing the levy of special taxes within the District to ﬁnance public improvements related to the Parklane project.

The public improvements to be financed by the District are as follows:

Water and Recycled Water System Facilities;
Streets and Traffic Circulation System Facilities; and
Fiber Optic System Facilities.

The Parklane project addresses the residential development of approximately 52.22 gross acres located west of Haven Avenue, generally east of Monarch Place, south of Parkview Street and north of Merrill Avenue. At build out, the project is projected to include 226 detached residential units.

The proposed Resolution references several bond documents and other matters related to the proposed issuance of bonds by City of Ontario Community Facilities District No. 55 (Parklane). The documents are listed below and are on file with the Records Management Department:

Indenture;
Bond Purchase Agreement;
Continuing Disclosure Agreement; and
Preliminary Official Statement.
365
RESOLUTION NO.________

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

CALIFORNIA, AUTHORIZING THE ISSUANCE OF CITY OF ONTARIO COMMUNITY FACILITIES DISTRICT NO. 55 (PARKLANE) SPECIAL TAX BONDS, SERIES 2022, IN AN AGGREGATE PRINCIPAL AMOUNT OF NOT TO EXCEED $11,000,000, 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.

WHEREAS, the City Council (the “City Council”) of the City of Ontario (the “City”) has formed City of Ontario Community Facilities District No. 55 (Parklane) (the “Community Facilities District”) under the provisions of the Mello-Roos Community Facilities Act of 1982 (the “Act”);
WHEREAS, the Community Facilities District is authorized under the Act to levy a special tax (the “Special Tax”) to pay for the costs of certain public facilities (the “Facilities”) and to issue bonds payable from the Special Tax; WHEREAS, in order to provide funds to finance certain of the Facilities, the Community Facilities District proposes to issue its City of Ontario Community Facilities District No. 55 (Parklane) Special Tax Bonds, Series 2022 (the “Series 2022 Bonds”), in the aggregate principal amount of not to exceed $11,000,000; WHEREAS, in order to provide for the authentication and delivery of the Series 2022 Bonds, to establish and declare the terms and conditions upon which the Series 2022 Bonds are to be issued and secured and to secure the payment of the principal thereof, premium, if any, and interest thereon, the Community Facilities District proposes to enter into an Indenture with Zions Bancorporation, National Association, as trustee (the “Trustee”) (such Indenture, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Indenture”);
WHEREAS, Stifel, Nicolaus & Company, Incorporated (the “Underwriter”), has presented the Community Facilities District with a proposal, in the form of a Bond Purchase Agreement, to purchase the Series 2022 Bonds from the Community Facilities District (such Bond Purchase Agreement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Purchase Agreement”);
WHEREAS, Rule 15c2-12 promulgated under the Securities Exchange Act of 1934 (“Rule 15c2-12”) requires that, in order to be able to purchase or sell the Series 2022 Bonds, the underwriter thereof must have reasonably determined that the Community Facilities District has, or one or more appropriate obligated persons have, undertaken in 366
a written agreement or contract for the benefit of the holders of the Series 2022 Bonds to provide disclosure of certain financial information and certain listed events on an ongoing basis;
WHEREAS, in order to cause such requirement to be satisfied, the Community Facilities District desires to enter into a Continuing Disclosure Agreement with the Trustee (such Continuing Disclosure Agreement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Continuing Disclosure Agreement”); WHEREAS, a form of the Preliminary Official Statement to be distributed in connection with the public offering of the Series 2022 Bonds has been prepared (such Preliminary Official Statement, in the form presented to this meeting, with such changes, insertions and omissions as are made pursuant to this Resolution, being referred to herein as the “Preliminary Official Statement”);
WHEREAS, there have been prepared and submitted to this meeting forms of:
a) the Indenture;
b) the Purchase Agreement;
c) the Continuing Disclosure Agreement; and
d) the Preliminary Official Statement;
WHEREAS, Kitty Siino & Associates, Inc. has prepared and provided to the Community Facilities District an appraisal report, dated October 10, 2022 (the “Appraisal”), providing an opinion of value of the property in the Community Facilities District, which has been submitted to this meeting;
WHEREAS, Section 5852.1 of the California Government Code requires that the City Council obtain from an underwriter, financial advisor or private lender and disclose, in a meeting open to the public, prior to authorization of the issuance of the Series 2022 Bonds, good faith estimates of (a) the true interest cost of the Series 2022 Bonds, (b) the sum of all fees and charges paid to third parties with respect to the Series 2022 Bonds, (c) the amount of proceeds of the Series 2022 Bonds expected to be received net of the fees and charges paid to third parties and any reserves or capitalized interest paid or funded with proceeds of the Series 2022 Bonds, and (d) the sum total of all debt service payments on the Series 2022 Bonds calculated to the final maturity of the Series 2022 Bonds plus the fees and charges paid to third parties not paid with the proceeds of the Series 2022 Bonds;
WHEREAS, in compliance with Section 5852.1 of the California Government Code, the City Council has obtained from CSG Advisors Incorporated, as the Community Facilities District’s Municipal Advisor, the required good faith estimates, which the Municipal Advisor has prepared in consultation with the Underwriter, and such estimates are disclosed and set forth in Exhibit A attached hereto; WHEREAS, the Community Facilities District desires to proceed to issue and sell the Series 2022 Bonds and to authorize the execution of such documents and the 367
performance of such acts as may be necessary or desirable to effect the offering, sale and issuance of the Series 2022 Bonds; and
WHEREAS, the City Council is the legislative body of the Community Facilities District;
NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Ontario as follows:

SECTION 1. The foregoing recitals are true and correct.

SECTION 2. Subject to the provisions of Section 3 hereof, the issuance of the Series 2022 Bonds, in an aggregate principal amount of not to exceed $11,000,000, on the terms and conditions set forth in, and subject to the limitations specified in, the Indenture, be and the same is hereby authorized and approved. The Series 2022 Bonds shall be dated, shall bear interest at the rates, shall mature on the dates, shall be subject to call and redemption, shall be issued in the form and shall be as otherwise provided in the Indenture, as the same shall be completed as provided in this Resolution.

SECTION 3. The Indenture, in substantially the form submitted to this meeting and made a part hereof as though set forth herein, be and the same is hereby approved.

Each of the Mayor of the City, and such other member of the City Council as the Mayor may designate, the City Manager of the City, the Assistant City Manager of the City, the Executive Director of Finance of the City, the Deputy City Treasurer of the City, and such other officer or employee of the City as the City Manager may designate (the “Authorized Officers”) is hereby authorized, and any one of the Authorized Officers is hereby directed, for and in the name of the Community Facilities District, to execute and deliver the Indenture in the form submitted to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Indenture by such Authorized Officer; provided, however, that such changes, insertions and omissions shall not authorize an aggregate principal amount of Series 2022 Bonds in excess of $11,000,000, shall not result in a final maturity date of the Series 2022 Bonds later than September 1, 2054, and shall not result in a true interest cost for the Series 2022 Bonds in excess of 6.50%.

SECTION 4. The Purchase Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. Each of the Authorized Officers is hereby authorized, and any one of the Authorized Officers is hereby directed, for and in the name of the Community Facilities District, to execute and deliver the Purchase Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Purchase Agreement by such Authorized Officer; provided, however, that such changes, insertions and omissions shall not result in an aggregate underwriter’s discount (not including any original issue discount) from the principal amount of the Series 2022 Bonds in excess of 1.5% of the aggregate principal amount of the Series 2022 Bonds. The City Council hereby finds and determines that the 368
sale of the Series 2022 Bonds at negotiated sale as contemplated by the Purchase Agreement will result in a lower overall cost.

SECTION 5. The Continuing Disclosure Agreement, in substantially the form submitted to this meeting and made a part hereof as though set forth in full herein, be and the same is hereby approved. Each of the Authorized Officers is hereby authorized, and any one of the Authorized Officers is hereby directed, for and in the name of the Community Facilities District, to execute and deliver the Continuing Disclosure Agreement in the form presented to this meeting, with such changes, insertions and omissions as the Authorized Officer executing the same may require or approve, such requirement or approval to be conclusively evidenced by the execution of the Continuing Disclosure Agreement by such Authorized Officer.

SECTION 6. The Preliminary Official Statement, in substantially the form presented to this meeting and made a part hereof as though set forth in full herein, with such changes, insertions and omissions therein as may be approved by an Authorized Officer, be and the same is hereby approved, and the use of the Preliminary Official Statement in connection with the offering and sale of the Series 2022 Bonds is hereby authorized and approved. Each of the Authorized Officers is hereby authorized, and any one of the Authorized Officers is hereby directed, to certify on behalf of the Community Facilities District that the Preliminary Official Statement is deemed final as of its date, within the meaning of Rule 15c2-12 (except for the omission of certain final pricing, rating and related information as permitted by Rule 15c2-12).

SECTION 7. The preparation and delivery of a final Official Statement (the “Official Statement”), and its use in connection with the offering and sale of the Series 2022 Bonds, be and the same is hereby authorized and approved. The Official Statement shall be in substantially the form of the Preliminary Official Statement, with such changes, insertions and omissions as may be approved by an Authorized Officer, such approval to be conclusively evidenced by the execution and delivery thereof. Each of the Authorized Officers is hereby authorized, and any one of the Authorized Officers is hereby directed, for and in the name of the Community Facilities District, to execute the final Official Statement and any amendment or supplement thereto.

SECTION 8. Based upon the property values within the Community Facilities District reported in the Appraisal and the value-to-lien information set forth in the Preliminary Official Statement, the City Council, for purposes of Section 53345.8 of the Act, hereby finds and determines that the value of the real property that would be subject to the Special Tax to pay debt service on the Series 2022 Bonds will be at least three times the principal amount of the Series 2022 Bonds to be sold and the principal amount of all other bonds outstanding that are secured by a special tax levied pursuant to the Act on property within the Community Facilities District or a special assessment levied on property within the Community Facilities District.

SECTION 9. If and to the extent that any feature or aspect of the Series 2022 Bond structure, the rate and method of apportionment of the Special Tax, the method of financing the Facilities, the appraisal, the absorption study or other components of the Series 2022 Bond issue approved and authorized hereby is inconsistent or in conflict with 369
any requirement, standard, measure or procedure set forth in the City’s Mello-Roos Community Facilities Act of 1982 Local Goals and Policies, such requirement, standard, measure or procedure is, to the extent necessary to eliminate such inconsistency or conflict, hereby waived, and the City Council hereby finds and determines that benefit inures to the ultimate property owners, the Community Facilities District and the City as a result of such waiver.

SECTION 10. The City Council hereby approves the execution and delivery of all agreements, documents, certificates and instruments referred to herein with electronic signatures as may be permitted under the California Uniform Electronic Transactions Act and digital signatures as may be permitted under Section 16.5 of the California Government Code using DocuSign.

SECTION 11. All actions heretofore taken by the officers, employees and agents of the City with respect to the issuance and sale of the Series 2022 Bonds, or in connection with or related to any of the agreements or documents referred to herein, are hereby approved, confirmed and ratified.

SECTION 12. The officers, employees and agents of the City are hereby authorized and directed to take all actions and do all things which they, or any of them, may deem necessary or desirable to accomplish the purposes of this Resolution and not inconsistent with the provisions hereof.

SECTION 13. This Resolution shall take effect immediately upon its adoption.

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

PASSED, APPROVED AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO LEGAL FORM:
370
_______________________________

BEST, BEST & KRIEGER LLP

CITY ATTORNEY
371

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

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 November 15, 2022. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
372

EXHIBIT A

GOOD FAITH ESTIMATES
The good faith estimates set forth herein are provided with respect to the Series 2022 Bonds in accordance with Section 5852.1 of the California Government Code. Such good faith estimates have been provided to the Community Facilities District by CSG Advisors Incorporated, the Community Facilities District’s municipal advisor (the “Municipal Advisor”), which the Municipal Advisor has prepared in consultation with Stifel, Nicolaus & Company, Incorporated, the Underwriter.

Principal Amount. The Municipal Advisor has informed the Community Facilities District that, based on the Community Facilities District’s financing plan and current market conditions, its good faith estimate of the aggregate principal amount of the Series 2022 Bonds to be issued and sold is $9,255,000 (the “Estimated Principal Amount”), which does not include approximately $89,000 of net premium estimated to be generated based on current market conditions. Net premium is generated when, on a net aggregate basis for a single issuance of bonds, the price paid for such bonds is higher than the face value of such bonds. Such Estimated Principal Amount and such estimated net premium amount would produce approximately $9,344,000 of gross proceeds.

True Interest Cost of the Series 2022 Bonds. The Municipal Advisor has informed the Community Facilities District that, assuming that the Estimated Principal Amount of the Series 2022 Bonds is issued and sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the true interest cost of the Series 2022 Bonds, which means the rate necessary to discount the amounts payable on the respective principal and interest payment dates to the purchase price received for the Series 2022 Bonds, is 5.16%.

Finance Charge of the Series 2022 Bonds . The Municipal Advisor has informed the Community Facilities District that, assuming that the Estimated Principal Amount of the Series 2022 Bonds is issued and sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the finance charge for the Series 2022 Bonds, which means the sum of all fees and charges paid to third parties (or costs associated with the Series 2022 Bonds), is $374,000.

Amount of Proceeds to be Received . The Municipal Advisor has informed the Community Facilities District that, assuming that the Estimated Principal Amount of the Series 2022 Bonds is issued and sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the amount of proceeds expected to be received by the Community Facilities District for sale of the Series 2022 Bonds, less the finance charge of the Series 2022 Bonds, as estimated above, and any reserves or capitalized interest paid or funded with proceeds of the Series 2022 Bonds, is $8,362,000.

Total Payment Amount . The Municipal Advisor has informed the Community Facilities District that, assuming that the Estimated Principal Amount of the Series 2022 373
Bonds is sold, and based on market interest rates prevailing at the time of preparation of such estimate, its good faith estimate of the total payment amount, which means the sum total of all payments the Community Facilities District will make to pay debt service on the Series 2022 Bonds, plus the finance charge for the Series 2022 Bonds, as described above, not paid with the proceeds of the Series 2022 Bonds, calculated to the final maturity of the Series 2022 Bonds, is $18,599,000, which excludes any reserves or capitalized interest funded or paid with proceeds of the Series 2022 Bonds (which may offset such total payment amount).

The foregoing estimates constitute good faith estimates only and are based on market conditions prevailing at the time of preparation of such estimates. The actual principal amount of the Series 2022 Bonds issued and sold, the true interest cost thereof, the finance charges thereof, the amount of proceeds received therefrom and total payment amount with respect thereto may differ from such good faith estimates due to (a) the actual date of the sale of the Series 2022 Bonds being different than the date assumed for purposes of such estimates, (b) the actual principal amount of Series 2022 Bonds issued and sold being different from the Estimated Principal Amount, (c) the actual amortization of the Series 2022 Bonds being different than the amortization assumed for purposes of such estimates, (d) the actual market interest rates at the time of sale of the Series 2022 Bonds being different than those estimated for purposes of such estimates, (e) other market conditions, or (f) alterations in the Community Facilities District’s financing plan, or a combination of such factors. The actual date of sale of the Series 2022 Bonds and the actual principal amount of Series 2022 Bonds issued and sold will be determined by the Community Facilities District based on the timing of the need for proceeds of the Series 2022 Bonds and other factors. The actual interest rates borne by the Series 2022 Bonds will depend on market interest rates at the time of sale thereof.

The actual amortization of the Series 2022 Bonds will also depend, in part, on market interest rates at the time of sale thereof. Market interest rates are affected by economic and other factors beyond the control of the Community Facilities Distri 374
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: 24
SUBJECT:

AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA22- 001) BETWEEN THE CITY OF ONTARIO AND BROOKCAL ONTARIO, LLC., TO

CITY OF ONTARIO
Agenda Report
November 15, 2022
SECTION:

ADMINISTRATIVE

REPORTS/DISCUSSION/ACTION

RECOMMENDATION:

That the City Council consider and adopt an Ordinance approving a Development Agreement (File No. PDA22-001) between the City of Ontario and BrookCal Ontario LLC., to establish the terms and conditions associated with Tentative Tract Map 20529 (File No.

PMTT22-010), an 11.11-acre property generally located on the east side of Twinkle Avenue, approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential - SFD/Attached) land use district of the Rich Haven Specific Plan.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

375
BACKGROUND & ANALYSIS:

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

The Map (see attached Exhibit B) is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue and proposes to subdivide approximately

The term of the Agreement is for 10 years, with a 5-year option to renew. The main points of the 376
Agreement address funding for all new City expenses created by the project, which includes:

PC22-062 with a 6 to 0
vote, recommending City Council approval of the Agreement.

377
Exhibit A—RICH HAVEN SPECIFIC PLAN LAND USE PLAN

378
Exhibit B—TENTATIVE TRACT MAP NO. 20529

379
ORDINANCE NO.________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA22-001, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND BROOKCAL
ONTARIO LLC., TO ESTABLISH THE TERMS AND CONDITIONS FOR THE DEVELOPMENT OF TENTATIVE TRACT MAP NO. 20529 (FILE NO.

PMTT22-010), AN 11.11 ACRE PROPERTY GENERALLY LOCATED ON THE EAST SIDE OF TWINKLE AVENUE APPROXIMATELY 350 FEET
SOUTH OF FUTURE CHINO AVENUE, WITHIN PLANNING AREAS 4A, 4B, AND 4C (RESIDENTIAL – SFD/ATTACHED) LAND USE DISTRICTS

OF THE RICH HAVEN SPECIFIC PLAN, AND MAKING FINDINGS IN SUPPORT THEREOF—APN: 0218-161-14.

PMTT22-010) to subdivide approximately 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes; and
WHEREAS, the environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and
WHEREAS, the Project is exempt from CEQA pursuant to a categorical exemption (listed in CEQA Guidelines Article 19, commencing with Section 15300) and the application of that categorical exemption is not barred by one of the exceptions set forth in CEQA Guidelines Section 15300.2; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the City Council the responsibility and authority to review and act on the subject Application; and
WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport ("ONT"), which encompasses lands within parts of San Bernardino, 380
Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (ALUCP), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on October 25, 2022, the Planning Commission of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date, voting to issue Resolution No. PC22-062 recommending the City Council approve the Application; and
WHEREAS, on November 15, 2022, the City Council of the City of Ontario conducted a hearing to consider the Project, and concluded said hearing on that date; and
WHEREAS, all legal prerequisites to the adoption of this Ordinance have occurred.

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

SECTION 1. Environmental Determination and Findings. As the recommending authority for the Project, the Planning Commission has reviewed and considered the information contained in the previous Certified EIR and supporting documentation. Based upon the facts and information contained in the previous Certified EIR and supporting documentation, the Planning Commission finds as follows:
(1) The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No. PSP05-004), for which an Environmental Impact Report (State Clearinghouse No. 2006051081) was certified by the City Council on December 4, 2007. This application is consistent with the previously adopted Environmental Impact Report and introduces no new significant environmental impacts; and
(2) The previous Certified EIR contains a complete and accurate reporting of the environmental impacts associated with the Project; and (3) The previous Certified EIR was completed in compliance with CEQA and the Guidelines promulgated thereunder; and
(4) The previous Certified EIR reflects the independent judgment of the Planning Commission; and
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(5) The proposed project will introduce no new significant environmental impacts beyond those previously analyzed in the previous Certified EIR, and all mitigation measures previously adopted with the Certified EIR, are incorporated herein by this reference.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending body for the Project, the PLANNING COMMISSION finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the Project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan, as the Project site is not one of the properties in the Housing Element Sites contained in Table B-1 (Housing Element Sites Inventory) of the Housing Element Technical Report. 382
SECTION 5. Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan.
(1) On April 19, 2011, the City Council of the City of Ontario approved and adopted the Ontario International Airport Land use Compatibility Plan, establishing the Airport Influence Area for Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and limits future land uses and development within the Airport Influence Area, as they relate to noise, safety, airspace protection, and overflight impacts of current and future airport activity. As the decision-making body for the Project, the City Council has reviewed and considered the facts and information contained in the Application and supporting documentation against the ONT ALUCP compatibility factors, including [1] Safety Criteria (ONT ALUCP Table 2- 2) and Safety Zones (ONT ALUCP Map 2-2), [2] Noise Criteria (ONT ALUCP Table 2-3) and Noise Impact Zones (ONT ALUCP Map 2-3), [3] Airspace protection Zones (ONT ALUCP Map 2-4), and [4] Overflight Notification Zones (ONT ALUCP Map 2-5). As a result, the DAB, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP; and
SECTION 5. Concluding Facts and Reasons. Based upon the substantial evidence presented to the City Council during the above-referenced hearing, and upon the specific findings set forth in Section 1 through 4, above, the City Council hereby concludes as follows:
(a) The Development Agreement applies to approximately 11.11 acres of land generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, within Planning Areas 4A, 4B, and 4C (Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan; and (b) The Development Agreement establishes parameters for the development of the Planning Areas 4A, 4B, and 4C Residential – SFD/Attached) land use districts of the Rich Haven Specific Plan. The Development Agreement also grants the Applicant, the right to develop, the ability to quantify the fees; and establish the terms and conditions that apply to those projects. These terms and conditions are consistent with The Ontario Plan Policy Plan (General Plan), design guidelines and development standards for the Rich Haven Specific Plan; and
(c) The Development Agreement grants the Owner a vested right to develop Tentative Tract Map 20529 (File No. PMTT22-010) as long as the Owner complies with the terms and conditions of the Specific Plan and EIR. Tentative Tract Map 20529 is generally located on the east side of Twinkle Avenue approximately 350 feet south of future Chino Avenue, and proposes to subdivide 11.11 acres of land into three (3) numbered lots and 15 lettered lots, to facilitate the development of 120 multi-family 383
dwelling units, drive aisles, utility easement, public/private streets, landscaped neighborhood edges and common open space purposes; and
(d) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (e) The Development Agreement does not conflict with the Land Use Policies of The Ontario Plan Policy Plan (General Plan) and will provide for development, within the district, in a manner consistent with the Policy Plan and with related development; and
(f) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(g) This Development Agreement will not be materially injurious or detrimental to the adjacent properties and will not have a significant impact on the environment or the surrounding properties. The environmental impacts of this project were previously reviewed in conjunction with the Rich-Haven Specific Plan (File No.

SECTION 9. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted 384
this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

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

PASSED, APPROVED, AND ADOPTED this 15th day of November 2022. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
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STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. 2022- was duly introduced at a regular meeting of the City Council of the City of Ontario held ________________ and adopted at the regular meeting held November 15, 2022 by the following roll call vote, to wit:

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
_________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:

File No. PDA22-001

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

DEVELOPMENT AGREEMENT NO. PDA22-001
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2022 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and BrookCal Ontario, LLC., a Delaware limited liability company (hereinafter “OWNER”):

RECITALS
WHEREAS, CITY is authorized to enter into binding development agreements with persons having legal or equitable interests in real property for the development of such property, pursuant to Section 65864, et seq. of the Government Code; and WHEREAS, OWNER has requested CITY to enter into a development agreement and proceedings have been taken in accordance with the rules and regulations of CITY; and
WHEREAS, by electing to enter into this Agreement, CITY shall bind future City Councils of CITY by the obligations specified herein and limit the future exercise of certain governmental and proprietary powers of CITY; and WHEREAS, the terms and conditions of this Agreement have undergone extensive review by CITY and the City Council and have been found to be fair, just and reasonable; and
WHEREAS, the best interests of the citizens of the CITY and the public health, safety and welfare will be served by entering into this Agreement; and WHEREAS, all of the procedures of the California Environmental Quality Act have been met with respect to the Project and the Agreement in that Rich-Haven Specific Plan (State Clearinghouse No. 2006051081 (the “FEIR”). The City Council found and determined that the FEIR was prepared in accordance with the requirements of the California Environmental Quality Act and adequately describes the impacts of the project described in the FEIR, which included consideration of this Agreement; and WHEREAS, this Agreement and the Project are consistent with the CITY’s Comprehensive General Plan and the Rich-Haven Specific Plan; and WHEREAS, all actions taken and approvals given by CITY have been duly taken or approved in accordance with all applicable legal requirements for notice, public hearings, findings, votes, and other procedural matters; and WHEREAS, development of the Property in accordance with this Agreement will provide substantial benefits to CITY and will further important policies and goals of CITY; and
WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 389
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1. DEFINITIONS AND EXHIBITS.

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

1.1.1 “Agreement” means this Development Agreement.

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

1.1.3 “Construction Agreement” means that certain Agreement for the Financing and Construction of Phases I and II Infrastructure Improvements to Serve an Easterly Portion of the New Model Colony, entered into between the CITY and NMC Builders as of the 4th day of October, 2005, and all amendments thereto, and “Construction Agreement Amendment” means that First Amended and Restated Agreement for the Financing and Construction of Limited Infrastructure Improvements to Serve and Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21st day of August 2012.
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1.1.4 “Development” means the improvement of the Property for the purposes of completing the structures, improvements and facilities comprising the Project including, but not limited to: grading; the construction of public infrastructure and public facilities related to the Project whether located within or outside the Property; the construction of buildings and structures; and the installation of landscaping. “Development” does not include the maintenance, repair, reconstruction or redevelopment of any building, structure, improvement or facility after the construction and completion thereof.

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

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

1.1.7 “Development Impact Fee” means a monetary exaction, other than a tax or special assessment, whether characterized as a fee or a tax and whether established for a broad class of projects by legislation of general applicability or imposed on a specific project on an ad hoc basis, that is charged by a local agency to the applicant in connection with approval of a development project for the purpose of defraying all or a portion of the cost of public facilities related to the development project, and, for purposes of this Agreement only, includes fees collected under development agreements adopted pursuant to Article 2.5 of the Government Code (commencing with Section 65864) of Chapter 4, For purposes of this Agreement only, "Development Impact Fee" shall not include processing fees and charges imposed by CITY to cover the estimated actual costs to CITY of processing applications for Development Approvals or for monitoring compliance with any Development Approvals granted or issued, including, without limitation, fees for zoning variances; zoning changes; use permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government 391
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Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or superceded, including by amendment or replacement.

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

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

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

1.1.14 “Land Use Regulations” means all ordinances, resolutions, codes, rules, regulations and official policies of CITY governing the development and use of land, including, without limitation, the permitted use of land, the density or intensity of use, subdivision requirements, timing and phasing of development, the maximum height and size of buildings, the provisions for reservation or dedication of land for public purposes, and the design, improvement and construction standards and specifications applicable to the development of the Property. “Land Use Regulations” does not include any CITY ordinance, resolution, code, rule, regulation or official policy, governing:
(a) the conduct of businesses, professions, and occupations; (b) taxes and assessments;
(c) the control and abatement of nuisances;
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1.1.15 “Mortgagee” means a mortgagee of a mortgage, a beneficiary under a deed of trust or any other security-device lender, and their successors and assigns.

1.1.16 “Model Units” means a maximum of twelve (12) model units, private common recreation facilities and sales facilities constructed by OWNER prior to the construction of any Production Units and not offered for sale and occupancy for a period of time after the issuance of permits for Production Units.

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

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

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

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

1.1.23 "Storm Water Treatment Capacity Availability” means a designated portion of the total Storm Water Treatment Capacity Availability made available through the completion of construction of a Phase of regional storm water treatment facilities by the NMC Builders LLC as described in the Construction Agreement Amendment. The amount, in acres, of Storm Water Treatment Capacity Availability required for the issuance of a grading permit shall be based upon the factors and assumptions listed in the Construction Agreement Amendment.

1.1.24 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.
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1.1.25 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.2 Exhibits. The following documents are attached to, and by this reference made a part of, this Agreement:

Exhibit “A” — Legal Description of the Property.

Exhibit “B” — Map showing Property and its location.

Exhibit “C” — Existing Development Approvals.

Exhibit “D” — Existing Land Use Regulations.

Exhibit “E” — Description of Required Infrastructure Improvements Exhibit “F” — Depiction of Required Infrastructure Improvements Exhibit Exhibit “G” - Form of Plume Disclosure Letter

2. GENERAL PROVISIONS.

2.2 Ownership of Property. OWNER represents and covenants that it is the owner of the fee simple title to the Property or a portion thereof, or has the right to acquire fee simple title to the Property or a portion thereof from the current owner(s) thereof. To the extent OWNER does not own fee simple title to the Property, OWNER shall obtain written consent from the current fee owner of the Property agreeing to the terms of this Agreement and the recordation thereof.

2.3 Term. The term of this Agreement shall commence on the Effective Date and shall continue for an initial term of ten (10) years thereafter unless this term is modified or extended pursuant to the provisions of this Agreement. The term of this Agreement may be extended for an additional five (5) years following expiration of the initial ten (10) year term, provided the following have occurred:
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(a) OWNER provides at least 180 days written notice to CITY prior to expiration of the initial term; and
(b) In non-mixed use and residential use only projects, the OWNER shall have obtained, as applicable, building permits for at least seventy percent (70%) of the actual number of residential units permitted under this Agreement; and (c) OWNER is not then in uncured default of this Agreement.

2.4 Assignment.

2.4.1 Right to Assign. OWNER shall have the right to sell, transfer or assign the Property in whole or in part (provided that no such partial transfer shall violate the Subdivision Map Act, Government Code Section 66410, et seq.), to any person, partnership, limited liability company, joint venture, firm or corporation at any time during the term of this Agreement; provided, however, that any such sale, transfer or assignment shall include the assignment and assumption of the rights, duties and obligations arising under or from this Agreement and be made in strict compliance with the following:
(a) No sale, transfer or assignment of any right or interest under this Agreement shall be made unless made together with the sale, transfer or assignment of all or a part of the Property. OWNER may be required to provide disclosure that the Property is within the South Archibald Trichloroethylene (TCE) Plume. OWNER may wish to provide the attached Disclosure Letter (Exhibit G) as part of the Real Estate Transfer Disclosure requirements under California Civil Code Section 1102 et seq. (b) Concurrent with any such sale, transfer or assignment, or within fifteen (15) business days thereafter, OWNER shall notify CITY’s City Manager, in writing, of such sale, transfer or assignment and shall provide CITY with: (1) an executed agreement, in a form reasonably acceptable to CITY, by the purchaser, transferee or assignee and providing therein that the purchaser, transferee or assignee expressly and unconditionally assumes all the duties and obligations of OWNER under this Agreement with respect to the portion of the Property so sold, transferred or assigned; and (2) the payment of the applicable processing charge to cover the CITY’s review and consideration of such sale, transfer or assignment. (c) Any sale, transfer or assignment not made in strict compliance with the foregoing conditions shall constitute a default by OWNER under this Agreement.

2.4.2 Release of Transferring Owner. Notwithstanding any sale, transfer or assignment, a transferring OWNER shall continue to be obligated under this Agreement unless such transferring owner is given a release in writing by CITY, which release shall be provided by CITY upon the full satisfaction by such transferring owner of the following conditions:
(a) OWNER no longer has a legal or equitable interest in all or any part of the portion of the Property sold, transferred or assigned.
(b) OWNER is not then in default under this Agreement.
(c) OWNER has provided CITY with the notice and executed agreement required under Paragraph (b) of Subsection 2.4.1 above. (d) The purchaser, transferee or assignee provides CITY with security equivalent to any security previously provided by OWNER to secure performance of its obligations hereunder.

2.4.3 Effect of Assignment and Release of Obligations. In the event of a sale, transfer or assignment pursuant to the provisions of Section 2.4.2 above:
(a) The assignee shall be liable for the performance of all obligations of OWNER with respect to transferred property, but shall have no obligations with respect to the portions of the Property, if any, not transferred (the “Retained Property”). (b) The owner of the Retained Property shall be liable for the performance of all obligations of OWNER with respect to Retained Property, but shall have no further obligations with respect to the transferred property.
(c) The assignee’s exercise, use and enjoyment of the Property or portion thereof shall be subject to the terms of this Agreement to the same extent as if the assignee were the OWNER.

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

2.4.5 Termination of Agreement with Respect to Individual Lots Upon Sale to Public and Completion of Construction. The provisions of Subsection 2.4.1 shall not apply to the sale or lease (for a period longer than one year) of any lot which has been finally subdivided and is individually (and not in “bulk”) sold or leased to a member of the public or other ultimate user. Notwithstanding any other provisions of this Agreement, this Agreement shall terminate with respect to any lot and such lot shall be released and no longer be subject to this Agreement without the execution or recordation of any further document upon satisfaction of both of the following conditions:
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2.5 Amendment or Cancellation of Agreement. This Agreement may be amended or cancelled in whole or in part only in the manner provided for in Government Code Section 65868.1. Any amendment of this Agreement, which amendment has been requested by OWNER, shall be considered by the CITY only upon the payment of the applicable processing charge. This provision shall not limit any remedy of CITY or OWNER as provided by this Agreement. Either Party or successor in interest, may propose an amendment to or cancellation, in whole or in part, of this Agreement. Any amendment or cancellation shall be by mutual consent of the parties or their successors in interest except as provided otherwise in this Agreement or in Government Code Section 65865.1. For purposes of this section, the term “successor in interest” shall mean any person having a legal or equitable interest in the whole of the Property, or any portion thereof as to which such person wishes to amend or cancel this Agreement.

The procedure for proposing and adopting an amendment to, or cancellation of, in whole or in part, this Agreement shall be the same as the procedure for adopting and entering into this Agreement in the first instance. Notwithstanding the foregoing sentence, if the CITY initiates the proposed amendment to, or cancellation of, in whole or in part, this Agreement, CITY shall first give notice to the OWNER of its intention to initiate such proceedings at least sixty (60) days in advance of the giving the public notice of intention to consider the amendment or cancellation.

2.5.1 Amendment to Reflect Consistency With Future Amendments to the Construction Agreement. To the extent any future amendment to the Construction Agreement provides for modifications to rights or obligations that differ from or alter the same or similar rights or obligations contained in this Development Agreement, OWNER reserves the right to request an amendment to the Development Agreement to reflect any or all of such modifications.

If to CITY:

Scott Ochoa, City Manager
City of Ontario
303 East "B" Street
Ontario, CA 91764
If to OWNER:

Dave Bartlett
BrookCal Ontario LLC
3200 Park Center Drive, Suite 100
Costa Mesa, CA 92626
Phone: 714.200.1533
with a copy to:

Ruben Duran, City Attorney
Best Best & Krieger, LLP
2855 E Guasti Road
Ontario, CA 91761
with a copy to:

a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

3.2 Effect of Agreement on Land Use Regulations. Except as otherwise provided under the terms of this Agreement including the Reservations of Authority, the rules, regulations and official policies governing permitted uses of the Property, the density and intensity of use of the Property, the maximum height and size of proposed buildings, and the design, improvement and construction standards and specifications applicable to development of the Property shall be the Existing Land Use Regulations.

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which phases of the Property will be developed.

Such decisions depend upon numerous factors which are not within the control of OWNER, such as market orientation and demand, interest rates, absorption, completion and other similar factors. Since the California Supreme Court held in Pardee Construction Co. v. City of Camarillo (1984) 37 Ca1. 3d 465, that the failure of the parties therein to provide for the timing of development resulted in a later adopted initiative restricting the timing of development to prevail over such parties’ agreement, it is the parties’ intent to cure that deficiency by acknowledging and providing that OWNER shall have the right to develop the Property in such order and at such rate and at such times as OWNER deems appropriate within the exercise of its subjective business judgment.

3.3.1 Infrastructure Improvement Exhibit. Attached hereto as Exhibits “E” and “F” are a description and depiction, respectively, of the improvements needed for the development of the Property. In the event of any discrepancy between Exhibit E and Exhibit F, Exhibit F shall control.

3.4 Requirement for Public Infrastructure Improvements. Development of the Property is contingent in part on the phasing of area-wide infrastructure improvements 399
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3.4.1 Attached hereto as Exhibit “E” and Exhibit “F” are the description and depiction of the infrastructure improvements needed for the development of the Property (“the Infrastructure Improvement Exhibit”).

3.4.2 Subject to the prior submittal by OWNER and approval by CITY of a plan to provide sufficient public infrastructure for the construction of a maximum number of twelve (12) Model Units, private common recreation facilities and sales facilities, CITY may issue a maximum of twelve (12) building permits for Model Units, private common recreation facilities and sales facilities. The plan to be submitted by OWNER for CITY approval shall describe the utilities and other infrastructure necessary to provide sufficient fire protection and other public health and safety requirements for the Model Units and other facilities.

3.5 Changes and Amendments. The parties acknowledge that refinement and further development of the Project will require Subsequent Development Approvals and may demonstrate that changes are appropriate and mutually desirable in the Existing Development Approvals. In the event OWNER finds that a change in the Existing Development Approvals is necessary or appropriate, OWNER shall apply for a Subsequent Development Approval to effectuate such change and CITY shall process and act on such application in accordance with the Existing Land Use Regulations, except as otherwise provided by this Agreement including the Reservations of Authority.

If approved, any such change in the Existing Development Approvals shall be incorporated herein as an addendum to Exhibit “C”, and may be further changed from time to time as provided in this Section. Unless otherwise required by law, as determined in CITY’s reasonable discretion, a change to the Existing Development Approvals shall be deemed “minor” and not require an amendment to this Agreement provided such change does not:
(a) Alter the permitted uses of the Property as a whole; or, (b) Increase the density or intensity of use of the Property as a whole; or,
(c) Increase the maximum height and size of permitted buildings; or, (d) Delete a requirement for the reservation or dedication of land for public purposes within the Property as a whole; or,
(e) Constitute a project requiring a subsequent or supplemental environmental impact report pursuant to Section 21166 of the Public Resources Code.

3.6 Reservations of Authority.
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3.6.2 Subsequent Development Approvals. This Agreement shall not prevent CITY, in acting on Subsequent Development Approvals, from applying Subsequent Land Use Regulations that do not conflict with the Development Plan, nor shall this Agreement prevent CITY from denying or conditionally approving any Subsequent Development Approval on the basis of the Existing Land Use Regulations or any Subsequent Land Use Regulation not in conflict with the Development Plan.

3.6.3 Modification or Suspension by State or Federal Law. In the event that State or Federal laws or regulations, enacted after the Effective Date of this Agreement, prevent or preclude compliance with one or more of the provisions of this Agreement, such provisions of this Agreement shall be modified or 401
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suspended as may be necessary to comply with such State or Federal laws or regulations, provided, however, that this Agreement shall remain in full force and effect to the extent it is not inconsistent with such laws or regulations and to the extent such laws or regulations do not render such remaining provisions impractical to enforce. In the event OWNER alleges that such State or Federal laws or regulations preclude or prevent compliance with one or more provisions of this Agreement, and the CITY does not agree, the OWNER may, at its sole cost and expense, seek declaratory relief (or other similar non-monetary remedies); provided however, that nothing contained in this Section 3.6.3 shall impose on CITY any monetary liability for contesting such declaratory relief (or other similar non-monetary relief).

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

3.7 Public Works; Utilities. If OWNER is required by this Agreement to construct any public works facilities which will be dedicated to CITY or any other public agency upon completion, and if required by applicable laws to do so, OWNER shall perform such work in the same manner and subject to the same requirements as would be applicable to CITY or such other public agency should it have undertaken such construction. As a condition of development approval, OWNER shall connect the Project to all utilities necessary to provide adequate water, recycled water, sewer, gas, electric, and other utility service to the Project. As a further condition of development approval, OWNER shall contract with the CITY for CITY-owned or operated utilities for this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements for Phase 1 and Phase 2, as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the storm drain improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the storm drain improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units within Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the storm drain improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F. 3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements for Phase 1 and Phase 2 as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the street improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. 402
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OWNER agrees to design, construct, and complete the street improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F.

In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the street improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Property shall require the extension of water and recycled water utility improvements for Phase 1 and Phase 2 as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the water and recycled water improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction- related water uses including prior to, and during, any grading of the Property.

OWNER agrees to design, construct, and complete the water and recycled water improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the water and recycled water improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.4 OWNER agrees that development of the Property shall require the extension of sewer improvements for Phase 1 and Phase 2, as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the sewer improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the sewer improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the sewer improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.

3.7.5 OWNER agrees that development of the Property shall require the extension of fiber optic communications improvements for Phase 1 and Phase 2 as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements for Phase 1, as described in Exhibit E and depicted in Exhibit F. OWNER agrees to design, construct, and complete the fiber optic improvements for Phase 2, within three (3) years of the issuance of the first building permit for Production Units in Phase 1, as described in Exhibit E and depicted in Exhibit F. In no event shall OWNER be issued occupancy for any Production Unit within Phase 1 until the completion of the fiber optic improvements within Phase 2, as described in Exhibit E and depicted in Exhibit F.
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3.7.6 OWNER further acknowledges and agrees that if the Phase 2 infrastructure improvements, as described in Exhibit E and depicted in Exhibit F, are not completed prior to the request of occupancy for Phase 1 Production Units, then OWNER, in order to satisfy the condition of completion of the Phase 2 infrastructure improvements prior to the issuance of occupancy permits for Phase 1 Production Units, shall deposit funds into an escrow account equal to the cost for the Phase 2 improvements (amount subject to the sole discretion of the City Engineer). OWNER’s deposit does not alleviate the requirement for OWNER to construct and complete the Phase 2 infrastructure improvements. OWNER shall make their best reasonable efforts to receive right-of-way approvals from Southern California Edison and/or other agencies to complete the Phase 2 infrastructure improvements. OWNER shall provide periodic updates to the CITY every ninety (90) days, or upon written request from the CITY.

3.8 Acquisition of Offsite Provision of Real Property Interests. In any instance where OWNER is required by any Development Approval or Land Use Regulation and the Construction Agreement to construct any public improvement on land not owned by OWNER (“Offsite Improvements”), the CITY and OWNER shall cooperate in acquiring the necessary legal interest (“Offsite Property”) in accordance with the procedures set forth in Section 2.4 of the Construction Agreement. This section 3.8 is not intended by the parties to impose upon the OWNER an enforceable duty to acquire land or construct any public improvements on land not owned by OWNER, except to the extent that the OWNER elects to proceed with the development of the Project, and then only in accordance with valid conditions imposed by the CITY upon the development of the Project under the Subdivision Map Act or other legal authority.

3.8.1 CITY Acquisition of Non-Construction Agreement Offsite Property. In the event OWNER is required to construct any public improvements on land not owned by OWNER, but such requirement is not based upon the Construction Agreement, Sections 3.8.1 and 3.8.2 shall control the acquisition of the necessary property interest(s) (“Non-Construction Agreement Offsite Property”).

If the OWNER is unable to acquire such Non-Construction Agreement Offsite Property, and following the written request from the OWNER to CITY, CITY agrees to use reasonable and diligent good faith efforts to acquire the Non- Construction Agreement Offsite Property from the owner or owners of record by negotiation to the extent permitted by law and consistent with this Agreement. If CITY is unable to acquire the Non-Construction Agreement Offsite Property by negotiation within thirty (30) days after OWNER’S written request, CITY shall, initiate proceedings utilizing its power of eminent domain to acquire that Non- Construction Agreement Subject Property at a public hearing noticed and conducted in accordance with California Code of Civil Procedure Section 1245.235 for the purpose of considering the adoption of a resolution of necessity concerning the Non-Construction Agreement Offsite Property, subject to the conditions set forth in this Section 3.8. The CITY and OWNER acknowledge that the timelines set forth in this Section 3.8.1 represent the maximum time periods which CITY and OWNER reasonably believe will be necessary to complete the acquisition of any Non-Construction Agreement Offsite Property. CITY agrees to 404
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3.8.2 Owner’s Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) days prior to making an offer to the owner of the Non-Construction Agreement Offsite Property. At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease all acquisition proceedings with respect to that Non-Construction Agreement Offsite Property, whereupon CITY shall cease such proceedings.

CITY shall provide written notice to OWNER no later than fifteen (15) days prior to the date of the hearing on CITY’S intent to consider the adoption of a resolution of necessity as to any Non-Construction Agreement Offsite Property.

At any time within that fifteen (15) day period, OWNER may, at its option, notify CITY that it wants CITY to cease condemnation proceedings, whereupon CITY shall cease such proceedings. If OWNER does not notify CITY to cease condemnation proceedings within said fifteen (15) day period, then the CITY may proceed to consider and act upon the Non-Construction Agreement Offsite Property resolution of necessity. If CITY adopts such resolution of necessity, then CITY shall diligently institute condemnation proceedings and file a complaint in condemnation and seek an order of immediate possession with respect to the Non-Construction Agreement Offsite Property.

3.9 Regulation by Other Public Agencies. It is acknowledged by the parties that other public agencies not within the control of CITY possess authority to regulate aspects of the development of the Property separately from or jointly with CITY and this Agreement does not limit the authority of such other public agencies. CITY agrees to cooperate fully, at no cost to CITY, with OWNER in obtaining any required permits or compliance with the regulations of other public agencies provided such cooperation is not in conflict with any laws, regulations or policies of the CITY.

3.10 Tentative Tract Maps; Extension. With respect to applications by OWNER for tentative subdivision maps for portions of the Property, CITY agrees that OWNER may file and process tentative maps in accordance with Chapter 4.5 (commencing with Section 66498.1) of Division 2 of Title 7 of the California Government Code and the applicable provisions of CITY’s subdivision ordinance, as the same may be amended from time to time. In accordance with the provisions of Section 66452.6 of the Government Code, each tentative subdivision map or tentative parcel map, heretofore or hereafter approved in connection with development of the Property, shall be deemed to have been granted an extension of time to and until the date that is five (5) years following the Effective Date of this Agreement.; The CITY’s City Council may, in its discretion, extend any such map for an additional period of up to five (5) years beyond its original term, so long as the subdivider files a written request for an extension with the City prior to the expiration of the initial five (5) year term.

4. PUBLIC BENEFITS.
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4.2 Development Impact Fees.

4.2.1 Amount of Development Impact Fee. Development Impact Fees (DIF) shall be paid by OWNER. The Development Impact Fee amounts to be paid by OWNER shall be the amounts that are in effect at the time such amounts are due. Nothing contained in this Agreement shall affect the ability of the CITY to impose new Development Impact Fees or amend the amounts of existing Development Impact Fees. Additionally, nothing contained in this Agreement shall affect the ability of other public agencies that are not controlled by CITY to impose and amend, from time to time, Development Impact Fees established or imposed by such other public agencies, even though such Development Impact Fees may be collected by CITY.

4.2.2 Time of Payment. The Development Impact Fees required pursuant to Subsection 4.2.1 shall be paid to CITY prior to the issuance of building permit for each applicable residential or other unit, except for the Open Space and Habitat Acquisition Development Impact fee, which shall be paid by OWNER to CITY prior to the issuance of a grading permit. Deferral of the payment of Development Impact Fees may be granted pursuant to a separate agreement approved by City pursuant to City policy.

4.2.3 Parkland and Quimby Act Fees. Pursuant to the General Plan (Ontario Plan) Goal PR1, Policy PR1-5 (achievement of a park standard of 5 acres of parkland per 1,000 residents) OWNER shall provide improved parks, developed in accordance with the City’s park standards in an amount equal to two (2) acres per 1,000 of projected population without credit, reimbursement, offset or consideration from City. Such areas shall either be dedicated to the City or transferred to a homeowners’ association. If approved by the City Manager, OWNER may satisfy this requirement through the development of non-public recreation facilities such as private recreational clubhouses or pool facilities.

Credit for such private recreational facilities areas shall be limited to a maximum of 50% of the foregoing park development requirement. If OWNER’s Project does not provide dedicated and developed park acreage equal to two (2) acres per 1,000 projected population, OWNER shall pay a fee in-lieu equal to the per acre estimated costs of acquisition and development of parkland in the City’s Development Impact Fee for the calculated park acreage deficiency, at the time the fee becomes due and payable to the City. Such in-lieu fee shall be due and payable prior to the issuance of the first building permit for Production Units issued to OWNER. Any park dedication and/or improvements in excess of such 406
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two (2) acres per thousand standard, provided such park has been developed in accordance with the City’s park standards and is open to the public generally, shall entitle OWNER to a credit toward its obligations under the Quimby Act (Gov. Code, § 64477) and the City’s implementing ordinance and/or resolution (collectively “Quimby Act Obligations ”), and to the extent OWNER’s Quimby Act Obligations are satisfied, OWNER shall be entitled to have the City acquire such developed and publicly available parks as Non-Program Interests in accordance with Section 4.3.3 below.

4.3 Responsibility for Construction of Public Improvements.

4.3.1 Timely Construction of Public Infrastructure. The phasing of the areawide infrastructure construction within the New Model Colony will be as approved by the CITY. OWNER shall be responsible for the timely construction and completion of all public infrastructure required for the Project as shown on the attached Exhibit “F” and any and all tentative tract map conditions. Unless otherwise specified in the Subdivision Agreement/Tract Map conditions, all other required Improvements for each Tract Map, shall be completed and operational prior to, and as a condition precedent to, OWNER requesting and CITY’s granting of the first building permit for Production Units for each such Tract Map.

All Infrastructure and Improvements shall be completed as required by the Subdivision Agreement/Tract Map conditions for Tract Map No. 20529.

4.3.2 Construction of DIF Program Infrastructure (Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of the Construction Agreement and any amendments thereto. Use of DIF Credit issued to OWNER as a member of NMC Builders LLC to offset OWNER’s DIF payment obligations shall also be subject to the provisions of the Construction Agreement and any amendments thereto.

4.3.3 Construction of DIF Program Infrastructure (Non-Construction Agreement). To the extent OWNER is required to construct and completes construction of public improvements that are included in CITY’s Development Impact Fee Program and such public improvements are not included the Construction Agreement between CITY and NMC Builders LLC, CITY agrees that CITY shall issue DIF Credit in accordance with the provisions of a separate Fee Credit Agreement between CITY and OWNER. Limitation on the use of DIF Credit issued to OWNER to offset OWNER’s DIF payment obligations shall also be subject to the provisions of a separate Fee Credit Agreement. CITY and OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.4 Affordable Housing Requirement.
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4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the OWNER’s total approved residential units within the Project, that are affordable to very low, low and moderate income households. Such requirement for affordable housing shall be met through one, or a combination of one or more, of the options provided in the following Sections 4.3.2.1 through 4.3.2.1. For the purposes of this Section, any term not defined in this Agreement shall be as defined by California Community Redevelopment Law (California Health and Safety Code Section 33000 et seq.).

4.4.2 Affordability Spread. Of the total number of residential dwelling units specified in Section 4.4.1, to be constructed or rehabilitated pursuant to Sections

4.4.2.1 New Construction. If OWNER elects to fully or partially satisfy the affordable housing requirement by the construction of new residential units, it shall construct and restrict the affordability of residential dwelling units within its Project or, at OWNER’s option and with the approval of the City, within another project elsewhere within the City. The affordable units constructed shall be intermingled with other units as part of the Project, and shall be built to the same construction, design and aesthetic standards, as well as number of rooms, as other units constructed as part of that OWNER’s Project. In addition, the percentage ratio of affordable units offered for sale versus those offered for rent shall equal the percentage ratio of other units offered for sale versus for rent within OWNER’s Project.

Such construction shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not constructed the required percentage of units, based on the number of building permits for non-restricted units, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to City in order to ensure the faithful completion of such required percentage of construction of affordable units.

affordability of, the number of residential units specified in Section 4.4.1, provided that such units shall be provided elsewhere within the City. The rehabilitation work shall be substantial and of high quality and shall also address any deferred property maintenance issues on the property. “Substantial rehabilitation ” shall mean rehabilitated multi-family rented dwelling units with three or more units and the value of the rehabilitation constitutes 25 percent of the after rehabilitation value of the dwelling, inclusive of land value pursuant to Health and Safety Code Section 33413(b)(2)(A)(iii-iv) as such section exists as of the Effective Date of this Agreement. If OWNER chooses the option of rehabilitation of existing housing units within the City, a detailed Affordable Housing Agreement specifying the terms for the allowable month housing costs or rents (as applicable) and maintenance and occupancy standards shall be prepared, executed and recorded against such units as a condition to the issuance of a building permit. Such rehabilitation shall be completed no later than the date that is five (5) years following the issuance of the first building permit for OWNER’s Project; provided however that to the extent OWNER has not rehabilitated the required percentage of units, based on the number of building permits, OWNER shall, prior to the issuance of such building permits, provide security (in the form and substance approved by the City Manager and City Attorney) to the City in order to ensure the faithful completion of such required percentage of rehabilitation.

4.4.2.3 In-Lieu Fee. If OWNER has not fully complied with the requirements of Section 4.3.1 by providing the minimum number of affordable units through the construction of new affordable units or by the substantial rehabilitation of existing units, shall pay an “ Affordability In- Lieu Fee”. If OWNER has not provided any affordable residential units by construction or rehabilitation, the Affordability In-Lieu fee shall be equal to Three Dollars Twelve Cents ($3.12) per square foot of residential development within OWNER’s Project or, if pre-paid as set forth below, Two Dollars Seventy-Four Cents ($2.74) per square foot of residential development within OWNER’s Project. If OWNER has partially complied with the requirements of Section 4.4.1 by construction or rehabilitation of less than the minimum number of units, then the Affordability In-lieu Fee shall be recalculated and reduced in consideration of the number and type of affordable units provided. The Affordability In-Lieu Fee shall be paid by OWNER to City no later than prior to the issuance of each building permit within OWNER’s Project based on the square footage of the residential unit for which such building permit is sought; provided however that OWNER may, at OWNER’s election, pre-pay such Affordability In-Lieu Fee by paying such Affordability In-Lieu Fee within thirty (30) days following the earliest discretionary approval by the City for OWNER’s Project, including, but not limited to, any general plan amendment, specific plan adoption, development agreement, tentative map approval, variance, conditional use permit, or resolution of intention to form any public financing mechanism.

The Three Dollars Twelve Cents Cents ($3.12) and the Two Dollars Seven 409
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Cents ($2.74) per square foot amounts shall automatically be increased annually, commencing on July 1, 2023, and automatically each July 1 thereafter. Such adjustment shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year. The pre- paid Affordability In-Lieu Fee shall be calculated based on the maximum floor area ratio (FAR) permitted within the General Plan and any applicable FAR contained within the applicable specific plan, whichever is greater, and the Maximum Development Density. For purposes of this Agreement, “Maximum Development Density ” shall be determined by multiplying the OWNER’s Project’s density for residential development potential as set forth in the General Plan or the applicable Specific Plan, whichever is less, by the net acreage of land within OWNER’s Project. All “Affordability In- Lieu Fees” collected by the City shall be used to promote the construction of affordable housing within the City.

4.4.2.4 Affordability Covenants. Prior to the issuance of the first building permit for any affordable unit, the City and OWNER shall enter into an Affordable Housing Agreement Affordability shall be assured for a period of forty-five (45) years for for-sale units and fifty-five (55) years for rentals.

4.4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non-profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one-tenth of one percent (0.1%) of the assessed value of such project. The City may permit OWNER to satisfy this obligation by recorded covenants against the property and enforceable against said entity by the City. Any such covenants shall be approved by the Planning Director and the City Attorney.

4.5 Schools Obligations.

4.5.1 Written Evidence of Compliance with Schools Obligations.

schools, six (6) are to be elementary (K-5) grade schools and two (2) are to be middle grade schools. The new school obligations for the Chaffey Joint Union High School District in the Ontario Ranch area have been projected to include the dedication of a school site for, and construction of, an additional high school.

The new school obligations for the applicable school district shall be met by a combination of the following: (1) designating and dedicating school site(s) within the Property as set forth in the General Plan, and/or (2) paying school impact fees, (3) entering into a joint mitigation agreement or individual mitigation agreements, or (4) any combination of the foregoing. Written evidence of approval by the applicable school district that OWNER has met their school obligations may be required by the City as the condition to the issuance by the City of any entitlements for OWNER’s Project. In the event OWNER is unable to provide such written evidence from the applicable school district(s), the City shall have the right to decline to honor any DIF Credit, Certificates of MDD Availability, Certificates of Storm Water Treatment Capacity Availability, or any combination thereof, presented by such OWNER, without liability to the City. To the extent that a joint mitigation agreement is approved by the applicable school district(s), and OWNER is a participant in good standing in such mitigation agreement, OWNER shall be deemed to have mitigated its new school obligations under this Section 4.4.1.

4.6 Public Services Funding Fee.

4.6.2 Public Services Funding Fee Amount. OWNER shall pay a Public Services Funding fee in the total amount of Two Thousand Three Hundred Seventeen dollars ($2,317.00) per residential dwelling unit. The Public Services Funding Fee shall be paid in one (1) installment within one hundred eighty (180) calendar days after the effective date of the Development Agreement or in two (2) installments, at OWNER’s option, as follows:

4.6.2.1 First Installment (Residential uses). The First Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential dwelling unit. The First Installment shall be based upon the “ Maximum Development Density” of the OWNER Project, as defined in Section 3.7.2.3 of the First Amended and Restated Construction Agreement. The First Installment shall be due and payable thirty (30) days following the effective date of the Development Agreement.

If the First installment amount is not paid for all residential dwelling units 411
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within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 2023, the amount of the First Installment shall be increased. Such increase shall be based on the percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year. Additionally, the amount shall be further increased automatically by the percentage increase in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) on each January 1 thereafter.

4.6.2.2 Second Installment (Residential Uses). The Second Installment of the Public Services Funding Fee shall be One Thousand One Hundred Fifty Eight dollars and fifty cents ($1,158.50) per residential unit. The Second Installment shall be paid at the time of the issuance of each building permit for the Project. The amount of the Second Installment shall increase automatically by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA) (December 2017=100) over the preceding year on January 1 st of each year, beginning on January 1, 2023. OWNER may exercise the option to pay the Second Installment amount for all residential units, a portion of the residential units, or for the remainder of the residential units within OWNER’s Project on or before each December 31st, before the Second Installment amount is automatically increased.

4.6.2.3 Single Installment (Non-residential Uses). A single installment payment of the Public Services Funding Fee shall be required in the amount of Seventy Cents ($.70) per square foot of non-residential buildings. The single installment for non-residential uses shall be due and payable prior to the issuance of the building permit for a non-residential building. The amount of the Single Installment for non-residential uses shall automatically increase by percentage increase (but no decrease) in the Consumer Price Index (Riverside - San Bernardino - Ontario, CA), (December 2017=100) over the preceding year on January 1 st of each year, beginning on January 1, 2023. OWNER may exercise the option to pay any single installment amounts for the remainder of the non-residential square footage within the Project on or before December 31st, before the Single Installment amount is automatically increased.

4.7 Net MDD/Water Availability Equivalents.

4.7.1 Assigned Net MDD/Water Availability Equivalents. The City has agreed with NMC Builders LLC to reserve exclusively for Members of NMC Builders, including OWNER, Net MDD made available through the construction of water system improvements funded by NMC Builders LLC. NMC Builders has assigned to OWNER its allocable share of the Net MDD issued by City. The provisions of the Construction Agreement Amendment requires that the City shall not approve a final tract map or issue building permits or certificates of 412
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4.7.2 Use of Assigned Net MDD Water Availability. OWNER shall provide evidence of sufficient Net MDD Water Availability Equivalents (or portions thereof) prior to and as a condition precedent to, the City’s approval of any and all tract maps for the Property. The amount of Net MDD Water Availability Equivalents required for City’s approval of a tract map shall be based upon water demand factors and assumptions listed in Exhibit C-2R of the Construction Agreement Amendment as “Water Demand Equivalents by Land Use” for each land use category.

4.7.3 Requirement for other Water System Improvements. A Certificate of Net MDD Availability is evidence only of available water capacity and does not satisfy any other conditions applicable to an OWNER’s Project, including those relating to design and construction of master-planned potable water and recycled water transmission and distribution system for the respective pressure zone and other public infrastructure requirements.

4.7.4 Effectiveness of Agreement. Notwithstanding anything set forth in this Agreement, CITY and OWNER each acknowledge, confirm, and agree that (i) the CITY approval of this Agreement and (ii) the effectiveness of this Agreement, in each case, are conditioned upon OWNER’s admission to NMC Builders as a “Member” (if not already a Member) thereof pursuant to the terms and conditions of the operating agreement of NMC Builders within thirty (30) days following the Effective Date of this Agreement. OWNER’S failure to maintain membership in NMC Builders LLC is and shall be a Default under this Agreement.

4.8 Storm Water Capacity Availability.

4.8.1 Requirement for Storm Water Treatment Capacity Availability. OWNER shall provide evidence of sufficient Storm Water Treatment Capacity Availability as reserved in a Certificate of Storm Water Treatment Capacity Availability the same manner and subject to the same limitations as provided for the assignment of Certificates of Net MDD Availability in Section 4.6 of this Agreement.

4.8.3 Requirement for other Storm Water Improvements. The Certificate of Storm Water Treatment Capacity Availability is evidence only of available storm water treatment capacity and does not satisfy any other conditions applicable to a particular development project, including those relating to on-site water 413
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treatment, water quality, connection to the storm water collection system, or other public infrastructure requirements.

4.9 Maintenance of Open Space. OWNER shall provide for the ongoing maintenance of all park, common areas and open space areas within the Project as more particularly set forth in the Specific Plan, through a homeowners’ association as approved by the CITY. Covenants, conditions and restrictions establishing any homeowners’ association shall be approved by the Planning Director and City Attorney.

4.10 Compliance with Public Benefits Requirements.

4.10.1 Failure to Provide Public Benefits. In the event OWNER fails or refuses to comply with any condition referenced in Section 4.1 through 4.10, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project- related building permits, certificates of occupancy, or discretionary approvals, without liability.

5. FINANCING OF PUBLIC IMPROVEMENTS.

5.1 Financing Mechanism(s). In accordance with the Memorandum of Agreement between the CITY and NMC Builders, CITY will cooperate with OWNER in the formation of a CFD, or CFDs, to include all of the Project, to provide a financing mechanism to reimburse the OWNER for funds paid to NMC Builders LLC for OWNER’s share of the costs of public infrastructure pursuant to the Construction Agreement and to acquire other public facilities constructed by OWNER subject to the provisions of the Memorandum of Agreement between CITY and NMC Builders LLC.

Notwithstanding such reimbursements and acquisitions, OWNER shall remain entitled to DIF Credits as provided for in Article 3 of the Construction Agreement and/or as provided for in a separate Fee Credit Agreement between CITY and OWNER. OWNER agrees that, prior to the recordation of any Tract Map for the Property, the Property shall be included in a CFD to finance City services through annual special taxes that will initially be $1,443.71 per Single Family Detached Dwelling Unit, $1,251.15 per Multiple- Family Dwelling Unit, $1,048.96 per Gated Apartment Community Dwelling Unit, and $.27 per square foot for Non-Residential buildings. These amounts shall be subject to an automatic increase at a rate not to exceed four (4%) percent per year, unless otherwise modified by the CITY. CITY shall be the sole and exclusive lead agency in the formation of any CFD, assessment district or other public financing mechanism within the Property; provided however, that the proceeds of any such CFD, assessment district, or financing mechanism may be used, subject to restrictions that may be imposed by applicable law, for the purposes of acquiring, constructing or maintaining public facilities to be owned or operated by other public agencies, including, without limitation those facilities owned or operated by a school district. In addition to the rights of the CITY pursuant to section 5.2 hereof, CITY shall have the right, but not the obligation, to condition the formation of any CFD, assessment district or other public 414
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financing mechanism within the Property on the OWNER mitigating all Project-related impacts to the applicable school district(s) as required by such school district(s).

Written evidence by such school district(s) may be required by the CITY as the condition to the formation of any CFD, assessment district or other public financing mechanism within the Property, or any steps preliminary thereto, including, without limitation, the adoption of any resolution of intention to form such CFD, assessment district or other public financing mechanism within the Property. It is not the intent of the parties hereto, by this provision, to prohibit or otherwise limit the City’s ability to take any and all necessary steps requisite to the formation of the CFD to finance City services through annual special taxes as set forth in this Section 5.1. Formation of any CFD, assessment district or other public financing mechanism within the Property, shall be subject to CITY’s ability to make all findings required by applicable law and complying with all applicable legal procedures and requirements including, without limitation, CITY’s public financing district policies as such policies may be amended from time to time. Notwithstanding the foregoing, it is acknowledged and agreed by the parties that nothing contained in this Agreement shall be construed as requiring CITY or the City Council to form any such district or to issue and sell bonds.

6. REVIEW FOR COMPLIANCE.

6.1 Periodic and Special Reviews.

6.1.1 Time for and Initiation of Periodic Review. The CITY shall review this Agreement every twelve (12) months from the Effective Date in order to ascertain the good faith compliance by the OWNER with the terms of this Agreement. The OWNER shall submit an Annual Monitoring Report to CITY, in a form acceptable to the City Manager, along with any applicable processing charge within ten (10) days after each anniversary date of the Effective Date of this Agreement. Within fifteen (15) days after the receipt of the Annual Monitoring Report, CITY shall review the Annual Monitoring Report. Prior to the expiration of the fifteen (15) day review period, CITY shall either issue a notice of continuing compliance or a notice of non-compliance and a notice of CITY’s intent to conduct a Special Review pursuant to Sections 6.1.2 through 6.1.6. Issuance of a notice of continuing compliance may be issued by the City Manager or his designee.

6.1.3 Notice of Special Review. The City Manager shall begin the special review proceeding by giving notice that the CITY intends to undertake a special review of this Agreement to the OWNER. Such notice shall be given at least ten (10) days in advance of the time at which the matter will be considered by the Planning Commission.

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be 416
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heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in the administrative record, that the OWNER has not complied in good faith with the terms and conditions of the agreement, the City Council may terminate or modify this Agreement and impose those conditions to the action it takes as it considers necessary to protect the interests of the CITY. The decision of the City Council shall be final, subject only to judicial review pursuant to Section 1094.5 of the Code of Civil Procedure.

6.4 Certificate of Agreement Compliance. If, at the conclusion of a Periodic or Special Review, OWNER is found to be in compliance with this Agreement, CITY shall, upon written request by OWNER, issue a Certificate of Agreement Compliance (“Certificate”) to OWNER stating that after the most recent Periodic or Special Review and based upon the information known or made known to the Planning Director and City Council that (1) this Agreement remains in effect and (2) OWNER is not in default.

The Certificate shall be in recordable form, shall contain information necessary to communicate constructive record notice of the finding of compliance, shall state whether the Certificate is issued after a Periodic or Special Review and shall state the anticipated date of commencement of the next Periodic Review. OWNER may record the Certificate with the County Recorder. Whether or not the Certificate is relied upon by assignees or other transferees or OWNER, CITY shall not be bound by a Certificate if a default existed at the time of the Periodic or Special Review, but was concealed from or otherwise not known to the Planning Director or City Council.

7. [RESERVED]

8. DEFAULT AND REMEDIES.

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in damages to OWNER, or to any successor in interest of OWNER, or to any other person, and OWNER covenants not to sue for damages or claim any damages:
(a) For any breach of this Agreement or for any cause of action which arises out of this Agreement; or
(b) For the taking, impairment or restriction of any right or interest conveyed or provided under or pursuant to this Agreement; or
(c) Arising out of or connected with any dispute, controversy or issue regarding the application or interpretation or effect of the provisions of this Agreement. 417
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8.4 Termination or Modification of Agreement for Default of OWNER. Subject to the provisions contained in Subsections 6.2 and 6.3 herein, CITY may terminate or modify this Agreement for any failure of OWNER to perform any material duty or obligation of OWNER under this Agreement, or to comply in good faith with the terms of this Agreement (hereinafter referred to as “default”); provided, however, CITY may terminate or modify this Agreement pursuant to this Section only after providing written notice to OWNER of default setting forth the nature of the default and the actions, if any, required by OWNER to cure such default and, where the default can be cured, OWNER has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

8.5 Termination of Agreement for Default of CITY. OWNER may terminate this Agreement only in the event of a default by CITY in the performance of a material term of this Agreement and only after providing written notice to CITY of default setting forth the nature of the default and the actions, if any, required by CITY to cure such default 418
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and, where the default can be cured, CITY has failed to take such actions and cure such default within 60 days after the effective date of such notice or, in the event that such default cannot be cured within such 60 day period but can be cured within a longer time, has failed to commence the actions necessary to cure such default within such 60 day period and to diligently proceed to complete such actions and cure such default.

9. THIRD PARTY LITIGATION.

CITY shall have no liability in damages under this Agreement for any failure of CITY to perform under this Agreement or the inability of OWNER to develop the Property as contemplated by the Development Plan of this Agreement as the result of a judicial determination that on the Effective Date, or at any time thereafter, the General Plan, or portions thereof, are invalid or inadequate or not in compliance with law.

9.2 Third Party Litigation Concerning Agreement. OWNER shall defend, at its expense, including attorneys’ fees, indemnify, and hold harmless CITY, its agents, officers and employees from any claim, action or proceeding against CITY, its agents, officers, or employees to attack, set aside, void, or annul the approval of this Agreement or the approval of any permit granted pursuant to this Agreement. CITY shall promptly notify OWNER of any such claim, action or proceeding, and CITY shall cooperate in the defense. If CITY fails to promptly notify OWNER of any such claim, action or proceeding, or if CITY fails to cooperate in the defense, OWNER shall not thereafter be responsible to defend, indemnify, or hold harmless CITY. CITY may in its discretion participate in the defense of any such claim, action or proceeding.

9.3 Indemnity. In addition to the provisions of 9.2 above, OWNER shall indemnify and hold CITY, its officers, agents, employees and independent contractors free and harmless from any liability whatsoever, based or asserted upon any act or omission of OWNER, its officers, agents, employees, subcontractors and independent contractors, for property damage, bodily injury, or death (OWNER’s employees included) or any other element of damage of any kind or nature, relating to or in any way connected with or arising from the activities contemplated hereunder, including, but not limited to, the study, design, engineering, construction, completion, failure and conveyance of the public improvements, save and except claims for damages arising through the sole active negligence or sole willful misconduct of CITY. OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents, employees and independent contractors in any legal action based upon such alleged acts or omissions. CITY may in its discretion participate in the defense of any such legal action.

9.4 Environment Assurances. OWNER shall indemnify and hold CITY, its officers, agents, and employees free and harmless from any liability, based or asserted, upon any act or omission of OWNER, its officers, agents, employees, subcontractors, predecessors in interest, successors, assigns and independent contractors for any 419
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violation of any federal, state or local law, ordinance or regulation relating to industrial hygiene or to environmental conditions on, under or about the Property, including, but not limited to, soil and groundwater conditions, and OWNER shall defend, at its expense, including attorneys’ fees, CITY, its officers, agents and employees in any action based or asserted upon any such alleged act or omission. CITY may in its discretion participate in the defense of any such action.

9.6 Survival. The provisions of this Sections 9.1 through 9.6, inclusive, shall survive the termination of this Agreement.

10. MORTGAGEE PROTECTION.

The parties hereto agree that this Agreement shall not prevent or limit OWNER, in any manner, at OWNER’s sole discretion, from encumbering the Property or any portion thereof or any improvement thereon by any mortgage, deed of trust or other security device securing financing with respect to the Property. CITY acknowledges that the lenders providing such financing may require certain Agreement interpretations and modifications and agrees upon request, from time to time, to meet with OWNER and representatives of such lenders to negotiate in good faith any such request for interpretation or modification. CITY will not unreasonably withhold its consent to any such requested interpretation or modification provided such interpretation or modification is consistent with the intent and purposes of this Agreement. Any Mortgagee of the Property shall be entitled to the following rights and privileges:
(a) Neither entering into this Agreement nor a breach of this Agreement shall defeat, render invalid, diminish or impair the lien of any mortgage on the Property made in good faith and for value, unless otherwise required by law. (b) The Mortgagee of any mortgage or deed of trust encumbering the Property, or any part thereof, which Mortgagee, has submitted a request in writing to the CITY in the manner specified herein for giving notices, shall be entitled to receive written notification from CITY of any default by OWNER in the performance of OWNER’s obligations under this Agreement.
(c) If CITY timely receives a request from a Mortgagee requesting a copy of any notice of default given to OWNER under the terms of this Agreement, CITY shall provide a copy of that notice to the Mortgagee within ten (10) days of sending the notice of default to OWNER. The Mortgagee shall have the right, but not the obligation, to cure the default during the remaining cure period allowed such party under this Agreement. 420
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(d) Any Mortgagee who comes into possession of the Property, or any part thereof, pursuant to foreclosure of the mortgage or deed of trust, or deed in lieu of such foreclosure, shall take the Property, or part thereof, subject to the terms of this Agreement. Notwithstanding any other provision of this Agreement to the contrary, no Mortgagee shall have an obligation or duty under this Agreement to perform any of OWNER’s obligations or other affirmative covenants of OWNER hereunder, or to guarantee such performance; provided, however, that to the extent that any covenant to be performed by OWNER is a condition precedent to the performance of a covenant by CITY, the performance thereof shall continue to be a condition precedent to CITY’s performance hereunder, and further provided that any sale, transfer or assignment by any Mortgagee in possession shall be subject to the provisions of Section 2.4 of this Agreement.

11. MISCELLANEOUS PROVISIONS.

11.1 Recordation of Agreement. This Agreement and any amendment or cancellation thereof shall be recorded with the San Bernardino County Recorder by the City Clerk within the ten (10) days after the CITY executes this Agreement, as required by Section 65868.5 of the Government Code. If the parties to this Agreement or their successors in interest amend or cancel this Agreement as provided for herein and in Government Code Section 65868, or if the CITY terminates or modifies the agreement as provided for herein and in Government Code Section 65865.1 for failure of the applicant to comply in good faith with the terms or conditions of this Agreement, the City Clerk shall have notice of such action recorded with the San Bernardino County Recorder.

11.2 Entire Agreement. This Agreement sets forth and contains the entire understanding and agreement of the parties, and there are no oral or written representations, understandings or ancillary covenants, undertakings or agreements which are not contained or expressly referred to herein. No testimony or evidence of any such representations, understandings or covenants shall be admissible in any proceeding of any kind or nature to interpret or determine the terms or conditions of this Agreement.

11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such remaining provisions are not rendered impractical to perform taking into consideration the purposes of this Agreement. Notwithstanding the foregoing, the provision of the Public Benefits set forth in Section 4 of this Agreement, including the payment of the fees set forth therein, are essential elements of this Agreement and CITY would not have entered into this Agreement but for such provisions, and therefore in the event such provisions are determined to be invalid, void or unenforceable, this entire Agreement shall be null and void and of no force and effect whatsoever.

11.4 Interpretation and Governing Law. This Agreement and any dispute arising hereunder shall be governed and interpreted in accordance with the laws of the 421
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