Agenda packet — Ontario City Council, July 18, 2023 (part 10 of 13)

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. 1289
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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. (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.
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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.

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 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 1291
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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.

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

11.13 Successors in Interest. 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 1292
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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.

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 1293
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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.

11.22 Prevailing Wage. OWNER, for itself, its successors, and assigns, agrees, covenants, and warrants that the development of the Property, if any, shall comply with all applicable federal and state labor laws (including, without limitation, the requirement under California law to pay prevailing wages and hire apprentices), and all obligations as set forth herein.

11.22.1 CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq.

11.22.2. OWNER acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and complying therewith. OWNER shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.

11.22.3 The foregoing indemnity shall survive termination of this Agreement and shall continue after completion of the construction and development of the Property by OWNER, its successors or assigns. OWNER shall be solely responsible for determining and effectuating compliance with such laws.

11.22.4 OWNER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND

ASSIGNS, WAIVES AND RELEASES CITY FROM ANY RIGHT OF ACTION THAT MAY BE AVAILABLE TO OWNER PURSUANT TO LABOR CODE SECTION 1781 OR THE DAVIS BACON ACT. RELATIVE TO THE WAIVER AND RELEASE CONTAINED IN THIS SECTION 11.22, OWNER ACKNOWLEDGES THE PROTECTIONS OF CIVIL CODE SECTION 1542, WHICH READS AS FOLLOWS: A GENERAL RELEASE DOES

NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT 1294
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KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

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

INITIALS. BY INITIALING BELOW, OWNER KNOWINGLY AND VOLUNTARILY WAIVES THE PROVISIONS OF SECTION 1542 SOLELY WITH THE MATTERS WHICH ARE THE SUBJECT OF THE FOREGOING WAIVERS AND RELEASES:
_______________
(Owner's Initials)
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. PDA22-005
“OWNER”
RB ONTARIO LLC, a Delaware limited
liability company
By: THE LANDMARK COMPANY LLC, a
California limited liability company, its
Manager
By:_______________________________
Name: Jeff Ragland
Title: Manager
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
1296
41 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. 1297
42 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
PARCEL A: (APN: 0218-111-60-0-000)
PARCEL 1 OF PARCEL MAP NO. 9486, IN THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 107 OF PARCEL MAPS, PAGES 98 AND 99, RECORDS OF SAID COUNTY.

PARCEL A1: AN EASEMENT FOR A WELLSITE TOGETHER WITH THE

CONSTRUCTION AND MAINTENANCE OF WATER PIPE LINES ALONG WITH SUCH

RIGHTS APPURTENANT TO THE REPAIR AND MAINTENANCE OF PUMPING PLANT

EQUIPMENT TOGETHER WITH ALL NECESSARY RIGHTS OF INGRESS AND EGRESS. SAID EASEMENT LAYING WITHIN PARCEL 2, PARCEL MAP NO. 9486, IN

THE COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 107 OF PARCEL MAPS, PAGES 98 AND 99, RECORDS OF SAID COUNTY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

PARCEL NO. 1: COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL 2; THENCE SOUTH 89 DEG. 45' 04" EAST ALONG THE SOUTH LINE OF SAID PARCEL 2, A DISTANCE OF 360.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 0 DEG. 14' 56" EAST A DISTANCE OF 40.00 FEET; THENCE SOUTH 89 DEG. 45' 04" EAST A DISTANCE OF 40.00 FEET; THENCE SOUTH 0 DEG. 14' 56" WEST, A DISTANCE OF 40.00 FEET TO A POINT ON THE SOUTH LINE PARCEL 2; THENCE NORTH 89 DEG. 45' 04" WEST 40.00 FEET TO THE TRUE POINT OF BEGINNING.

PARCEL NO. 2: A 20 FOOT EASEMENT LYING 10 FEET EITHER SIDE OF THE FOLLOWING DESCRIBED CENTERLINE: COMMENCING AT THE SOUTHWEST CORNER OF SAID PARCEL 2; THENCE SOUTH 89 DEG. 45' 04" EAST ALONG THE SOUTH LINE OF SAID PARCEL 2, A DISTANCE OF 360.00 FEET; THENCE NORTH 0 DEG. 14' 56" EAST A DISTANCE OF 10.00 FEET TO THE TRUE POINT OF BEGINNING; THENCE NORTH 89 DEG. 45' 04" WEST PARALLEL WITH THE SOUTH LINE OF SAID PARCEL 2, A DISTANCE OF 330.00 FEET; THENCE NORTH 0 DEG. 02' 14" WEST A DISTANCE OF 305.00 FEET, MORE OR LESS, TO THE POINT OF TERMINUS ON THE NORTH LINE OF SAID PARCEL 2.

PARCEL B: (APN: 0218-111-61-0-000) PARCEL 2 OF PARCEL MAP NO. 9486, IN THE

COUNTY OF SAN BERNARDINO, STATE OF CALIFORNIA, AS PER PLAT RECORDED IN BOOK 107 OF PARCEL MAPS, PAGES 98 AND 99, RECORDS OF SAID COUNTY. 1299
44 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT
Map showing Property and its location
1300
45 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On March 28, 2006, the Planning Commission:
a) Issued Resolution No. PC06-020 recommending City Council adopt and certify the Countryside Specific Plan Environmental Impact Report (SCH #2004071001).
b) Issued Resolution No. PC06-021 recommending City Council approval of the Countryside Specific Plan (PSP04-001).

On April 18, 2006, the City Council:
a) Issued Resolution No. 2006-013 certifying the Countryside Specific Plan Environmental Impact Report.

On April 25, 2006, the Planning Commission:
a) Issued Resolution No. PC06-031, recommending the City Council approval of an amendment (File No. PSPA06-003) to the Countryside Specific Plan.

On May 2, 2006, the City Council:
a) Issued Ordinance No. 2828 approving the Countryside Specific Plan (PSP04-001).

On June 20, 2006 the City Council:
a) Issued Ordinance No. 2830 approving an amendment to the Countryside Specific Plan (File No. PSPA06-063).
1301
EXHIBIT "D"

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

1. Countryside Specific Plan (File No. PSP04-001), Ordinance No. 2828

2. Countryside Specific Plan Environmental Impact Report (SCH# 2004071001)

3. Countryside Specific Plan (File No. PSPA06-063), Ordinance No. 2830

4. Countryside Specific Plan Amendment (File No. PSPA19-001)

5. 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
1302
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.

Fiber Optic (FO) Improvements
a) FO improvements along Archibald Avenue from the northerly tract boundary to the southerly tract boundary.

Street (ST) Improvements
a) Full half-width ST improvements along Archibald Avenue from the northernly tract boundary to the southerly tract boundary. b) Traffic Signal improvements at the intersection of Private Drive “A” and Archibald Avenue.
1303
EXHIBIT “F”

TO DEVELOPMENT AGREEMENT
Depiction of Required Infrastructure Improvements
(SEE ATTACHED)
1304
1305
EXHIBIT "G"

TO DEVELOPMENT AGREEMENT

FORM OF CERTIFICATE OF NET MDD AVAILABILITY
Pursuant to Section ___ of this Agreement between the City of Ontario, a California municipal corporation, and ________________, a __________________ company, hereinafter called "OWNER", the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called "Agreement", the City of Ontario hereby certifies based on CITY receipt of payment of OWNER’s share of the funding for the Phase 2 Water Improvements, that OWNER is entitled to the following Net MDD Water Availability.

Amount of Net MDD _________________________ gpm
________________________________________
Scott Ochoa, City Manager
Dated:_________________________________
1306
51 Exhibit “H”

FORM OF CERTIFICATE OF REGIONAL DIF CREDIT
Pursuant to Section 4.5.2 of this Agreement by and between the City of Ontario and ____________________, dated _______________, 201_, the terms and definitions of which are hereby incorporated herein by this reference and hereinafter called the “Development Agreement’, the City of Ontario hereby certifies that OWNER is entitled to the following amount and nature of DIF Credits in the Regional Water DIF Infrastructure Category:

Amount of Credit: $
Scott Ochoa, City Manager
Dated:
1307
52 Exhibit “I-1”

ONTARIO RANCH

WATER SUPPLY PHASING PLAN
Phase 2 Water
Availability
Equivalency
Estimated
Net MDD Available1
Phase 2 A
Supply & Storage

1. 1 - Additional Ground Water Well and Collection lines - Design and Construction
8,250 gpm2 7,750 gpm2
Pipelines (Transmission & Distribution)2

2. 925 Zone Transmission lines – Design and Construction

3. Temporary Pressure Reducing Station3 – Design and
Construction
Phase 2B
Supply & Storage

4. 1 – Additional Ground Water Well and Collection lines – Design and Construction

5. 1 – 6 million gallon Reservoir – 925 Zone – Design and Construction
10,500 gpm2 9,860 gpm2
(1) Upon Completion of the construction of all of the improvements described for each Phase a Certificate of Net MDD Availability shall be issued to Developer for the corresponding amount of Net MDD. Net MDD means the maximum daily demand on the potable water supply, net of the water requirements for public schools and parks. The Water Availability Equivalency includes the estimated requirements for public schools and parks. The amount of Net MDD specified is the cumulative amount for which building permits may be issued upon funding of the corresponding and all preceding Phases of improvements.
(2) The ability of a particular development to utilize Net MDD assigned to it by the Developer will require the completion of design and construction of Master-planned potable and recycled water transmission and distribution pipelines for the respective pressure zone. Other factors may include its location, the particular land use and Water Availability Equivalents assigned to it as specified in Exhibit C-2. (3) Pressure reducing stations are a component of the pipeline transmission and distribution system. 1308
53 EXHIBIT “I-2”
Available Water Supply - See Exhibit C-1R for Net MDD Available Table A - Water Demand Equivalents By Land Use
Water
Demand
Equivalents
(WDE)2
Recycled
Water
Demand
Factor1
(ADD)
Recycled
Water
Demand Of
Total Water
Demand
(gpd/du) (gpd/ac) (gpm/unit) (gpd/ac) (%)
Detached Dwellings (less than 5 units per acre) 544 0.57 900 28% Detached or Attached Dwellings (between 5 and 11 units per acre) 464 0.48 1,000 21% Attached Dwellings (between 11 and 25 units per acre) 323 0.34 1,500 18% High Density Dwellings (25+ units per acre) 152 0.16 1,500 27% Commercial Lodging 150 0.16 1,700 50%
Retail/Services Uses 2,200 2.29 2,300 51%
Office Uses 3,400 3.54 2,300 40%
Business Park Uses 2,200 2.29 2,200 50%
Industrial Uses 2,000 2.08 2,200 52%
Institutional Use 2,200 2.29 1,600 42%
Parks 1,000 1.04 1,400 58%
Schools 3,500 3.65 1,600 31%
Table B - Example Water Supply Calculation
Land Use Residential
Units
WDE Factor
(gpm)
Potable
MDD
(gpm)
Development
Detached Dwellings (less than 5 units per acre) 5,061 0.57 2,868 Detached or Attached Dw ellings (betw een 5 and 11 units per acre) 2,530 0.48 1,223 Attached Dwellings (between 11 and 25 units per acre) 3,410 0.34 1,147 Retail/Services Uses (per acre)2 2.29 239
TOTAL 11,001 5,477
Three (3) Wells Are required to Support this example, assuming each w ell produces 2,000 gpm and connection to the Recycled Water System maximizing Recycled Water Use. 1 Residential Acres are estimated based on the w eighted average derived from the average number of units per land use category. 2 Commercial acreage is calculated from a total square footage of 1,361,000 SF w ith an average Floor to Area Ratio (FAR) of 0.30 for commercial services in The Ontario Plan. 1Recycled Water Demands include irrigation for right-of-w ay (medians and parkw ays), neighborhood edge, pocket parks, and common areas.

The Ontario Plan Potable Water Recycled Water
Land Use
1,428
166
194 202
1,950
1,284
Acres1
(gross)
104
369
803
Recycled
Water ADD
(gpm)
Water Demand Factor
(ADD)
256
2 The WDE is based on the Maximum Day Demand (MDD) w ith a peaking factor of 1.5 in the NMC for all land use categories. 1309
54 EXHIBIT “J”

TO DEVELOPMENT AGREEMENT
Form of Plume Disclosure Letter
1310
Department: Economic Development
Prepared By: Karla Tavera
Staff Member Presenting:

Jennifer McLain Hiramoto, Economic
Development Director
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 27
SUBJECT: A LEASE AGREEMENT WITH MARK CHRISTOPHER AUTO CENTER

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council authorize City Manager or his designee to execute a Lease Agreement between the City and Mark Christopher Auto Center related to upgrades to their existing LED sign.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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 FISCAL IMPACT: The City will pay Mark Christopher Auto Center 50% of the total cost of sign upgrades, which will be a not-to-exceed amount of $518,590. The General Fund appropriations for this will be included in Economic Development Agency's first quarter budget update.

BACKGROUND & ANALYSIS: Mark Christopher Auto Center, located at 2131 E. Convention Center Way, CA 91764, is seeking to upgrade its existing LED Digital Sign. The upgrades will include higher resolution displays, refurbishment of all identification display lighting, and repainting. Staff recommends that the City of Ontario (City) participate in covering half of the cost of the sign upgrade by executing a Lease Agreement (Agreement). In return, the City will have the right to use 15% of the sign's operating time each hour for City messaging and content, such as events and announcements, and 20% during times of emergency. The Agreement will be valid for 10 years, and the total cost to the City would amount to no more than $519,590.

The City's participation in this Agreement may result in increased auto sales, an important element to the City's general fund, as well as provide a public service by granting the City the right to advertise on the sign along the I-10 Freeway, which sees 270,000 vehicles daily. 1311
Department: Recreation & Community Services
Prepared By: Danielle Guevara
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 28
SUBJECT: A MANAGEMENT AGREEMENT WITH GAKHAL GOLF MANAGEMENT LLC FOR THE

OPERATION OF WHISPERING LAKES GOLF COURSE

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

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

A. Authorize the City Manager or designee to execute a five-year Management Agreement (on file with the Records Management Department) with Gakhal Golf Management LLC, DBA GGM, of Watsonville, California, for the management and operation of the Whispering Lakes Golf Course.

B. Authorize the extension of the agreement for one five-year term at the City's sole discretion.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: GGM will be responsible for all costs related to operating the golf course and will not receive a management fee from the City. The City will receive an annual payment of $100,000 from GGM if net profits exceed $100,000. If profits are less than $100,000, the amount will be reinvested into the golf course for further improvements. GGM has also committed to investing $543,000 toward capital improvements at the golf course, in addition to meeting regular operational standards.

BACKGROUND & ANALYSIS: Whispering Lakes Golf Course is an 18-hole, par-72 public golf course adjacent to Westwind Park. In June 2023, the City and the previous operator, Donovan Bros. Golf, LLC, mutually agreed to end the Management Agreement for the management and operations of Whispering Lakes Golf Course.

Whispering Lakes is an important contributor to the local economy. It hosts various events, tournaments and serves the local community. Improvements to the golf course will further establish the City as the premier community in the Inland Empire and complement the 1312
development of the Ontario Sports Complex.

City Staff has recently engaged Gakhal Golf Management LLC, dba GGM. GGM is interested in investing in the property and has presented a proposal to the City. The proposal includes immediately investing funds into the property, management and operation of the golf course and plans to work with the City to provide a new clubhouse, banquet hall/restaurant, and hotel. To ensure a seamless transition and uninterrupted service, the City requested that GGM provide documentation of their golf course management experience, a business plan, a marketing plan, an operations plan, and financial projections before entering into a new management agreement with the City.

The Management Agreement between GGM and the City outlines GGM's responsibility to operate and manage Whispering Lakes Golf Course, including bookings to play golf, and coordinating tournaments, events, programs, and other golfing activities. GGM will be responsible for all costs related to operating the golf course, such as administration, accounting, marketing, employee training, payroll and benefits administration, agronomy, merchandising, and web management.

An additional responsibility of GGM is to promote Whispering Lakes Golf Course and entice local golfers through customized campaigns that are thoughtful and impactful. These include creating a new website, social media outreach, print advertising, organizing tournaments and local community events, developing a new membership program, and initiating a new junior golf camp.

Additionally, GGM will manage the entire facility, including maintenance, driving range, golf shop, and food and beverage operations. GGM states that it is committed to creating a warm and pleasant guest experience. GGM has guaranteed to create an online tee-time reservation system; upgrade amenities including new rental clubs, new electric golf carts, new golf balls, and a new range dispenser; increase food and beverage sales including establishing a new onsite restaurant and acquiring a food cart; developing new Whispering Lakes Golf Course merchandise; and work with the City and a new golf course architect to make strategic upgrades to the golf course.

The five-year Management Agreement allows GGM to operate Whispering Lakes Golf Course through September 2028. Under the contract terms, GGM will provide an immediate investment of $543,000 for capital improvements at Whispering Lakes Golf Course, which includes a new website, new logo, new merchandise, rental clubs, range ball dispenser, golf course management software, new golf courts, enhancements to the food and beverage system, and enhancements to the driving range.

Staff recommends that the City Council approve the recommended Management Agreement. 1313
Department: Recreation & Community Services
Prepared By: Danielle Guevara
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 29
SUBJECT: STUDENT REPRESENTATIVE AND ALTERNATE APPOINTMENTS TO THE RECREATION & PARKS COMMISSION FOR FY 2023-24

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council confirm Angel Huerta, Ontario resident and student at Sierra Vista High School as the Student Representative and Isabella Seibel, Ontario resident and student at Chaffey District Online High School as the Alternate Student Representative to the Recreation & Parks Commission for the term set to expire on June 30, 2024.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: There is no direct fiscal impact associated with this action.

BACKGROUND & ANALYSIS: The City Council approved the Student Representative Program to the Recreation & Parks Commission on March 5, 2002. The Student Representative is a non-voting member of the Recreation & Parks Commission. Since its inception, thirty-five (35) students have participated in the program.

The City conducted a recruitment through local high schools, city-wide teen programs and multiple social media platforms. Candidates interviewed with the Recreation & Community Services Department and were recommended to the Recreation & Parks Commission where they presented to the Commission on June 26, 2023. The Recreation & Parks Commission recommends the City Council ratify the appointments of Angel Huerta and Isabella Seibel as non-voting members of the Recreation & Parks Commission for FY 2023-24 with a vote of 6-0.

CANDIDATES INFORMATION:

Angel Huerta - Angel is an Ontario resident and Sierra Vista High School student entering her junior year. She is a De Anza Community & Teen Center Teen Action Committee member, where she began volunteering in 2023. She has also volunteered for the Recreation & Community Services Department, assisting their tiny tot program and library. Angel is eager to represent and voice the 1314
concerns of the teen community. Upon graduation from high school, Angel plans to attend college to obtain a bachelor's degree. Her goal is to become a child psychologist.

Isabella Seibel - Isabella is an Ontario resident, a Chaffey District Online High School student entering her senior year, and a dual enrollment student at Chaffey College. She has also been accepted to volunteer for the summer at Casa Colina Hospital in Pomona and Providence St. Jude Medical Center in Fullerton, California. Isabella is extremely passionate about helping others and is eager to be a voice and advocate for her peers. Upon graduation, Isabella plans to attend cosmetology school and fulfill her goal of owning a cosmetology business to follow her passion for serving the community.
1315
Department: Recreation & Community Services
Prepared By: Danielle Guevara
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 30
SUBJECT: TRANSFER OWNERSHIP OF A 2017 STARCRAFT SHUTTLE BUS FROM THE WEST

END YMCA TO THE CITY OF ONTARIO

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve the transfer of ownership for a 2017 Starcraft Shuttle Bus from the West End YMCA to the City of Ontario.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: Minor expenses related to the transfer fee and registration with the Department of Motor Vehicles are associated with the transfer. Future ongoing operating and maintenancerelated expenses will be absorbed in the Recreation & Community Services Department's operating budget.

BACKGROUND & ANALYSIS: For several years, the West End YMCA senior transportation program provided transportation to the Ontario Senior Center for City residents on behalf of the City of Ontario. However, the program was discontinued on June 30, 2023. To ensure that the senior population within the City of Ontario continues to receive transportation services, the Recreation & Community Services Department secured a grant through OmniTrans to take over and operate the senior transportation program.

The West End YMCA recently secured the 2017 Starcraft Shuttle Bus through a grant with support from the City of Ontario. Since the West End YMCA is no longer operating the senior transportation program on behalf of the City, it was negotiated to transfer the shuttle bus to the City of Ontario.

The shuttle bus was obtained through a grant with the California Department of Transportation and the value of the shuttle had not depreciated enough to be sold.

The City of Ontario and West End YMCA received all documentation from the California Department of Transportation approving the transfer to the City.

Staff recommends that City Council approve the transfer of the Startcraft Shuttle bus. 1316
Department: Police Department
Prepared By: Nicole Alvarez
Staff Member Presenting:

Mike Lorenz, Chief of Police
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 31
SUBJECT: AN AMENDMENT TO THE PROFESSIONAL SERVICES AND EQUIPMENT PURCHASE AGREEMENT WITH AXON ENTERPISE, INC. FOR THE ACQUISITION OF

ADDITIONAL POLICE DEPARTMENT FRONTLINE PATROL EQUIPMENT

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or his designee to execute an amendment to the Professional Services and Equipment Purchase Agreement (on file with Records Management) to increase the contracted dollar amount with Axon Enterprise, Inc., of Scottsdale, Arizona, for the purchase of an additional 30 user licenses for Axon body-worn cameras and 8 DJI Mini Pro Drones in the amount of $105,051 for the duration of the contract, for a total not-to-exceed contract amount of $9,359,811.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Maintain the Current High Level of Public Safety
Operate in a Businesslike Manner
FISCAL IMPACT: The recommended Amendment increases the authorized contract of $9,254,760 by $105,051 for a total not-to-exceed contract amount of $9,359,811. If approved, General Fund appropriations for Fiscal Year 2023-24 will be made on the next available quarterly adjustment as needed for Ontario Police Department. Appropriations will be added to Information Technology’s fund for future years’ budgets consistent with the annual adoption process.

BACKGROUND & ANALYSIS: The Police Department currently has an agreement with Axon Enterprise, Inc. (formerly known as TASER International, Inc.) for body-worn cameras, maintenance and data management services for Police field and Airport personnel which expires April 2, 2026. All equipment will utilize Axon' s Evidence.com data storage and management feature which protects the integrity of video and data files captured using tasers, body-worn cameras and interview rooms to provide security, tracking and redaction assistance of file viewing, and integrates with a proposed County-wide initiative under the San Bernardino County District Attorney' s Office. 1317
Department: Recreation & Community Services
Prepared By: Danielle Guevara
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 32
SUBJECT: A RESOLUTION APPROVING THE FILING OF AN APPLICATION FOR GRANT FUNDS FOR LAND AND WATER CONSERVATION FUND 2023 FOR GEORGE GIBBS PARK

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

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

A. Adopt the resolution approving the filing of an application for grant funds through the Land and Water Conservation Fund 2023 for the George Gibbs Park development project; B. Authorize the City Manager, or his designee, to execute any documents or agreements needed to complete the application and implement the grant; and C. If awarded, accept funding of $2,486,688 provided by the Land and Water Conservation Fund 2023.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Pursue City's Goals and Objectives by Working with Other Governmental Agencies Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: The grant award will be announced by December 31, 2023. The total project cost is estimated to be $4,973,377. The grant funding will cover 50% of the project's eligible costs and its reimbursement is $2,486,688. The project is expected to start between late 2024 and late 2025. The City will have a three-year timeframe to complete the project. If the grant is awarded, the approval amount will be included as revenue in a subsequent budget report to City Council, along with any associated expenditure adjustments.

BACKGROUND & ANALYSIS: The California Department of Parks and Recreation - Land and Water Conservation Fund (LWCF) Grant is a competitive grant. The grant provides funding for the acquisition or development of land to create new outdoor recreation opportunities for the health and wellness of California. Since its inception in 1965, over 1,000 parks throughout California have been created or improved with LWCF assistance. The application deadline for the Land and Water 1318
Conservation Fund application for 2023 was June 1, 2023.

According to the 2021 Recreation & Parks Master Plan, George Gibbs Park has been deemed an opportunity area. The park currently has a sizeable grassy space, a few picnic tables, and a ball field that residents cannot use due to its proximity to a school parking lot. The Master Plan suggests that the park has the potential to accommodate several recreational amenities for its medium-sized space. Additionally, the Master Plan recommended that the City conduct additional community engagement to determine what amenities the community would like to see in the park.

In May 2023, the City's consultant that completed the Master Plan (KTU&A), and Recreation & Community Services Staff conducted in-person and online surveys within the community to gather feedback on potential amenities for George Gibbs Park. Based on the community's response, KTU&A developed a conceptual design and cost estimate for the park.

The George Gibbs Park Development project is consistent with the grant criteria, which includes opportunities for new development in the park. Potential new amenities include playground equipment, exercise equipment, splash pad area, dog park, tennis/pickleball courts, walking path, picnic area, open field, and restrooms. The new recreation elements will enhance the park and create a welcoming gathering space for the community. The recommended resolution of the City Council is a requirement of the grant application.

The project is categorically exempt from the California Environmental Quality Act (CEQA) requirements, Class 3: Section 1503 - New Construction or Conversion of Small Structures, of the CEQA guidelines. Staff will file a Notice of Exemption with the Clerk of the Board of Supervisors, County of San Bernardino. The project will also be filed with the State Clearinghouse, as the grant requires.
1319
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING THE APPLICATION FOR THE LAND AND

WATER CONSERVATION FUND GEORGE GIBBS PARK DEVELOPMENT
PROJECT.

WHEREAS, the Congress under Public Law 88-578 has authorized the establishment of a federal Land and Water Conservation Fund Grant-In-Aid program, providing matching funds to the State of California and its political subdivisions for acquiring lands and developing Facilities for public outdoor recreation purposes; and WHEREAS, the California Department of Parks and Recreation is responsible for administration of the program in the State, setting up necessary rules and procedures governing applications by local agencies under the program; and WHEREAS, the applicant certifies by resolution the approval of the application and the availability of eligible matching funds prior to submission of the application to the State.

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

SECTION 1. Approves the filing of an application for Land and Water Conservation Fund assistance for the proposed; George Gibbs Park Development Project; and
SECTION 2. Certifies that the applicant has reviewed, understands, and agrees to the General Provisions contained in the contract shown in the Grant Administration Guide; and
SECTION 3. Agrees to abide by 54 U.S.C. §200305(f)(3) which requires, “No property acquired or developed with assistance under this section shall, without the approval of the National Secretary of the Interior, be converted to other than public outdoor recreation uses. The Secretary shall approve such conversion only if he finds it to be in accord with the then existing comprehensive statewide outdoor recreation plan and only upon such conditions as he deems necessary to assure the substitution of other recreation properties of at least equal fair market value and of reasonably equivalent usefulness and location.”
SECTION 4. Certifies that said agency has matching funds from eligible source(s) and can finance 100 percent of the project, which up to half may be reimbursed; and
SECTION 5. Agrees to comply with all applicable federal, state and local laws, ordinances, rules, regulations and guidelines.
1320
SECTION 6. Appoints the City Manager or a designee as agent of the applicant to conduct all negotiations and execute and submit all documents, including, but not limited to, applications, contracts, amendments, payment requests, and compliance with all applicable current state and federal laws which may be necessary for the completion of the aforementioned project.

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1321

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. 2023- was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 18, 2023 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. 2023- duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023. _____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1322
Department: Community Life & Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 33
SUBJECT: A RESOLUTION APPROVING THE FILING OF AN APPLICATION FOR FUNDS FOR AN OUTDOOR FITNESS COURT AT HOMER F. BRIGGS MEMORIAL PARK

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

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

A. Adopt a Resolution approving the filing of an application for grant funds from the National Fitness Campaign for the purchase of an Outdoor Fitness Court at Homer F. Briggs Memorial Park;
B. Authorize the City Manager or designee to execute any documents or agreements needed to complete the application and implement the grant; and
C. Accept the $30,000 funding provided by the National Fitness Campaign for an Outdoor Fitness Court.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Encourage, Provide or Support Enhanced Recreational, Educational, Cultural and Healthy City Programs, Policies and Activities
FISCAL IMPACT: The grant funds provided by the National Fitness Campaign is $30,000, making the total cost of the Outdoor Fitness Court (including installation) $286,000. The Recreation & Community Services Department's Fiscal Year 2023-24 Capital Improvement Project budget includes allocations of $300,000 for an Outdoor Fitness Court at Homer F. Briggs Memorial Park. No further budget allocations will be requested for this project.

BACKGROUND & ANALYSIS: The Outdoor Fitness Court is a state-of-the-art facility that provides free, accessible fitness equipment to the public. It is designed for users of all ages and fitness levels.

The Outdoor Fitness Court includes a variety of exercise stations that can be used for strength training, cardio workouts, and more. The equipment is easy to use and does not require special training, making it accessible to everyone in the community. It is a fun and exciting way to exercise and fosters a sense of community around fitness and wellness. 1323
The 2021 Recreation & Parks Master Plan identified two areas for opportunity within Homer F.

Briggs Memorial Park. The open, grassy areas provide passive and active recreation opportunities.

Due to the open-space areas, Staff and representatives from the National Fitness Campaign have identified Homer F. Briggs Memorial Park as the location for the Outdoor Fitness Court. Homer F.

Briggs is easily accessible and provides enough space to accommodate the equipment and users.

In addition to the fitness court, the National Fitness Campaign initiative includes a public art component. Local and regional artists will have the chance to participate in a Call for Artists conducted by the Museum, Arts & Culture Department. Artists will submit proposals for a mural that will be featured on the Outdoor Fitness Court. After selection, the artist will collaborate with City Staff and the National Fitness Campaign to develop high-resolution artwork to be included on the Outdoor Fitness Court. The artwork is created using durable anti-graffiti vinyl. The National Fitness Campaign will award the artist $5,000 and provide an artist recognition on the wall and artist biography on the side panel.

The National Fitness Campaign offers a comprehensive program to support the implementation and installation of the Outdoor Fitness Court, including marketing and promotional materials, maintenance support, and ongoing training and education for residents. The program encourages physical activity, promotes healthy living, and builds community spirit. Once installed, the Recreation & Community Services Department will utilize the Outdoor Fitness Court as programable space to offer wellness activities to a neighborhood located over 2 miles from the nearest community center.

The Community Life & Culture Agency requests that City Council authorize the acceptance of the grant funds and purchase of the Outdoor Fitness Court.
1324
RESOLUTION NO. ________

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

CALIFORNIA, TO ADOPT AND ALLOCATE FUNDS FOR AN OUTDOOR
FITNESS COURT® AS PART OF THE 2023 NATIONAL FITNESS

CAMPAIGN
WHEREAS, the City of Ontario has submitted a Grant Application to National Fitness Campaign (NFC) for participation in their 2023 initiative to install and activate outdoor Fitness Courts® in 200 cities and schools across the country, and; WHEREAS, the City of Ontario will accept a $30,000 National Grant from our NFC Grant Committee and Statewide Partners, and provide a local match in the amount of $201,188 to promote and implement a free-to-the-public outdoor Fitness Court®, and; WHEREAS, the City of Ontario will secure supplemental funding as needed through community sponsors, which will be made available and committed to this program for the purchase of the outdoor Fitness Court®, and;
WHEREAS, the City of Ontario will commit to construction and launch of the outdoor Fitness Court® by the end of the 2023 calendar year, and; WHEREAS, the City of Ontario believes the outdoor Fitness Court is an important wellness ecosystem that supports healthier communities, commits to funding/fundraising to participate in NFC’s 2023 Campaign, and will earn local and national recognition as a leader in providing affordable health and wellness.

NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Ontario, California hereby:

1. Approves the filing of project application(s) for Per Capita program grant project(s); and

2. Will collaborate with NFC to implement the outdoor Fitness Court and make fitness free to community residents and visitors.

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
1325
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1326

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: MAYOR/COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1327
Department: Public Works
Prepared By: Blaine M Ishii
Staff Member Presenting:

Tito Haes, Executive Director Public Works
Reviewed By: Bonnie Tam, Andrea Ampig
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 34
SUBJECT: AN AGREEMENT WITH WEST VALLEY MRF, LLC FOR SOLID WASTE PROCESSING

SERVICES

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

CONSENT CALENDAR
RECOMMENDATION: That the City Council approve and authorize the City Manager or his designee to execute an Agreement for solid waste processing services (on file with the Records Management Department) subject to non-substantive changes as mutually agreed to by the parties with West Valley MRF, LLC (West Valley), a limited liability company duly formed and operating under the laws of the State of California and owned in whole or in part by Burrtec Waste Industries, Inc. (Burrtec), a California corporation duly formed and operating under the laws of the State of California.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
FISCAL IMPACT: The Fiscal Year 2023-24 Adopted Budget includes appropriations in the Integrated Waste Fund for this Agreement. The total amount spent on this contract varies based on the amount and type of waste processed. The proposed Agreement with West Valley for recycling and organics (green waste) processing services include pricing and revenue sharing terms that are consistent with the current agreements. The proposed agreement contains annual inflation factors and adjustment dates that are generally consistent with the existing agreements, and the terms could reach up to 10 years based on optional extensions.

BACKGROUND & ANALYSIS: The City can extend the proposed solid waste handling services agreements with West Valley through June 30, 2028. The Agreement may be extended at the parties’ mutual option for one (1) additional five (5) year term. The Ontario Municipal Code Section 6-3.105 and Sections 40059 and 49300 of the California Public Resources Code et seq. provides that the City may enter into solid waste handling and recycling service contracts with independent contractors without utilizing the formal bidding process, since there are limited numbers of solid waste, green waste or organics composting, and recyclable materials processors proximal to the City.

Under the existing Agreement, City refuse is delivered to the West Valley Material Recovery Facility (MRF), located in Fontana, California, where it is then transferred to the El Sobrante landfill via 1328
subcontract between Waste Management and Burrtec. Burrtec has provided the City's recycling processing services since 1999 and has provided the City's green waste processing since 2009 at the West Valley MRF. The West Valley MRF maintains the appropriate permits and has the capacity required to meet the City's current and future projected refuse disposal, recyclable, and organics materials handling needs.

The current proposal would remain the same in the proposed Agreements initially but could change due to emerging State requirements or if the City were to develop its own transfer or handling facility in the future. Per the proposed agreement, West Valley shall have the right of first refusal, which is a right to be the first to make an offer in a transaction before offers are solicited from any third parties. The City is not obligated to enter into a transaction with anyone. It can simply operate the facility on its own and never offer joint ownership or operation of the facility to anyone. If, however, the City does want to enter into an agreement for joint ownership/operation of the facility, it must allow West Valley to consider the opportunity first. The City is not obligated to meet West Valley’s terms; if the City determines that West Valley’s proposed terms are not acceptable, and West Valley will not further negotiate, it may then seek to contract with others.

In order to achieve the goal of having 75% of California's solid waste source-reduced, recycled, or composted required by Assembly Bill 341, Assembly Bill 1826, and Senate Bill 1383, the State continues to increase restrictions on landfill materials like green waste and organics, and legislate new programs like mandatory commercial recycling, and construction and demolition recycling.

Whether source-separated by the customer or recovered at a material recovery facility like West Valley MRF, these efforts play an integral role in the City's ability to meet these mandates. As more commodities are mandated to be diverted from the waste stream, and as new recycling programs and infrastructure emerge, the combined efforts and partnerships of the City, its solid waste customers, and Burrtec are essential to manage the City's solid waste and recycling service. 1329
Department: Investments & Revenue Resources
Prepared By: Nathaniel Gibson
Staff Member Presenting:

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

Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 35
SUBJECT: ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NOS. 1, 2, 3 AND 4 FOR FISCAL YEAR 2023-24

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

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

A. Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B. Adopt a Resolution confirming the diagrams and assessments and providing for the assessment levy within Ontario Parkway Maintenance Assessment Districts Nos. 1, 2, & 3; and C. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Ontario Parkway Maintenance Assessment District No. 4.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: As proposed, special assessment revenue will be generated in the amount of $287,360 from Ontario Parkway Maintenance Assessment District (OPMAD) Nos. 1, 2 and 3, and $367,087 from OPMAD No. 4 during Fiscal Year 2023-24. The total cost of $474,714 for operation and maintenance within OPMAD Nos. 1, 2 and 3 will exceed the assessment revenues by $187,354, of which $186,980 will be funded from the General Fund and the remaining $374 will be provided from the OPMAD No. 3 available fund balance. The General Fund portion is included in the City's Fiscal Year 2023-24 Adopted Operating Budget. The special assessment for OPMAD No. 4 is sufficient to fund all expenditures within this service area.

BACKGROUND & ANALYSIS: The first of these districts was formed in 1976 pursuant to the Landscaping and Lighting Act of 1972 (the 1972 Act). Additional territories are annexed to the districts from time to time as development proceeds. The districts were formed to help minimize the continually increasing cost of maintaining and operating the landscaping along public streets 1330
where the property owners do not have direct access to the landscaping. A special assessment is levied annually on benefiting properties for the cost of operation and maintenance of certain parkway landscaping facilities within the districts. The City’s Public Works Agency establishes the annual operation and maintenance costs and administers the maintenance of the landscaping. As required by the 1972 Act, an Engineer’s Report for each district is prepared annually by the City's consultant, Harris & Associates, which apportions these costs to each parcel within the districts. The locations of the districts are shown on the maps attached to this report.

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

Special assessment revenue will be generated in the combined amount of $287,360 from OPMAD Nos. 1, 2 and 3. The assessed tax rates for Fiscal Year 2022-23 and the maximum and proposed tax rates for Fiscal Year 2023-24 are shown in Exhibit A.

OPMAD No. 4 is comprised of single-family residential tracts and the Ontario Mills development area. The district is organized into 6 maintenance areas. Each maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit.

The total assessment for each maintenance area is then apportioned to its constituent parcels.

The assessments for OPMAD No. 4 will generate a total of $367,087. OPMAD No. 4 will generate sufficient revenue to pay all expenses within the service area. The assessed tax rates for Fiscal Year 2022-23, and the maximum and proposed tax rates for Fiscal Year 2023-24, are shown in Exhibit A.

On June 20, 2023, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 18, 2023, as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each report includes plans and specifications for the improvements and maintenance, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within each District. 1331
Prior Year Maximum Proposed
2022-23 2023-24 2023-24
OPMAD No. 1 $ 66.32 per Lot $ 66.32 per Lot $ 66.32 per Lot OPMAD No. 2 $ 34.04 per Lot $ 34.04 per Lot $ 34.04 per Lot OPMAD No. 3, Zone 2000-1 $ 41.29 per Lot $ 41.29 per Lot $ 41.29 per Lot OPMAD No. 3, Zone 2000-2 $ 191.97 per Lot $ 286.14 per Lot $ 201.81 per Lot Prior Year Maximum Proposed
2022-23 2023-24 2023-24
MA#99-1 $ 57.32 per Lot $ 69.63 per Lot $ 60.26 per Lot MA#99-2 $ 373.43 per Lot $ 439.19 per Lot $ 392.59 per Lot MA#99-3 $1,160.38 per Acre $1,577.04 per Acre $1,219.90 per Acre MA#00-1 $ 272.78 per Lot $ 432.54 per Lot $ 286.77 per Lot MA#04-1 $ 1,097.25 per Lot $ 2,755.20 per Lot $ 1,153.51 per Lot MA#05-1 $ 1,507.40 per Lot $ 3,415.21 per Lot $ 1,584.77 per Lot Exhibit A
Ontario Parkway Maintenance Assessment Districts 1, 2 & 3 Proposed Levy Rates FY 2023-24
Ontario Parkway Maintenance Assessment District 4
Proposed Levy Rates FY 2023-24
1332
U:\users\marica\AdminSvcs\CTorres\OPMD maps2023\OPMAD_1_vicinity.mxd

BENSON AVE

MISSION BLVD

BENSON AVE

SAN ANTON OI AVE

FRANCIS ST

PHILLIPS ST

MISSION BLVD
D ST
G ST
I ST

FOURTH ST

FIFTH ST

SIXTH ST

MOUNTAIN AVE

HOLT BLVD

SAN ANTONIO AVE

EUCLID AVE

SULTANA AVE

CAMPUS AVE

EIGHTH ST BAKER AVE

ARCHIBALD AVE

HAVEN AVE

MILLIKEN AVE

POMONA FREEWAY

MOUNTA NI AVE

MILLIKEN AVE RIVERSIDE DR

POMONA FREEWAY

RIVERSIDE DR
WALNUT
ST

PHILADELPHIA
ST

SAN BERNARDINO

FREEWAY
Ontario Parkway Maintenance District No. 1

VICINITY MAP
Legend
Boundary of Area Assessed 0
.0.5 1 Miles
Date: 3/31/2023
1333
U:\users\marica\AdminSvcs\CTorres\OPMD maps2023\OPMAD_2_vicinity.mxd Legend
Boundary of Area Assessed

BENSON AVE

MISSION BLVD

BENSON AVE

SAN ANTON OI AVE

FRANCIS ST

PHILLIPS ST

MISSION BLVD
D ST
G ST
I ST

FOURTH ST

FIFTH ST

SIXTH ST

MOUNTAIN AVE

HOLT BLVD

SAN ANTONIO AVE

EUCLID AVE

SULTANA AVE

CAMPUS AVE

EIGHTH ST GROVE AVE

BAKER AVE

VINEYARD AVE

ARCHIBALD AVE

HAVEN AVE

MILLIKEN AVE

POMONA FREEWAY

MOUNTA NI AVE

MILLIKEN AVE

POMONA FREEWAY
WALNUT
ST

PHILADELPHIA
ST

SAN BERNARDINO

FREEWAY
Ontario Parkway Maintenance District No. 2

VICINITY MAP
Date: 3/31/2023
0 .0.5 1 Miles
1334
U:\users\marica\AdminSvcs\CTorres\OPMD maps2023\OPMAD_3_vicinity.mxd SION BLVD.

PHILLIPS ST.

FRANCIS ST.

SAN ANTONIO
AVE.

G
R
O
VE AVE.

PHILADELPHIA
WALNUT ST.

ST.

RIVERSIDE DR. EUCLID
AVE.

C
A
MPUS AVE.

VINEYA
R
D
AVE.

A
R

CH BI ALD
AVE.

MISSION BLVD.

HAVEN AVE.

EUCLID
AVE.

EDISON AVE
JURUPA ST.

MILLIKEN AVE.

EDISON AVE

SCHAEFER AVE SCHAEFER AVE

ONTARIO RANCH RD

GRAND PARK ST

TURNER AVE

MISSION BLVD

SAN ANTON OI AVE

POMONA FREEWAY

MOUNTA NI AVE

CHINO AVE

SCHAEFER AVE

MILLIKEN AVE RIVERSIDE DR

EUCALYPTUS AVE

EDISON AVE

POMONA FREEWAY

ONTARIO FREEWAY

RIVERSIDE DR
WALNUT
ST

HAMNER AVE ONTARIO RANCH RD
Legend
Boundary of Zone 2000-2
Boundary of Zone 2000-1
Ontario Parkway Maintenance District No. 3

VICINITY MAP
Date: 3/31/2023
0 .0.5 1 Miles
1335
U:\users\marica\AdminSvcs\CTorres\OPMD maps2023\OPMAD_4_vicinity.mxd LegendB
oundaryofAreaAssessed
OntarioParkwayMaintenanceDistrictNo.4

VICINITYMAP
Date:3/31/2023
0 .0.5
1Miles
1336
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING THE ENGINEER'S REPORTS FOR THE

ANNUAL LEVY OF ASSESSMENTS WITHIN ONTARIO PARKWAY
MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2, 3 AND 4 FOR
FISCAL YEAR 2023-24.

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

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

A. Plans and Specifications,
B. Estimates of cost,
C. Diagrams of the Districts, and
D. Assessment of the estimated cost
Are hereby approved and are ordered to be filed in the Records Management Department, as a permanent record and to remain open to public inspection. 1337
SECTION 3. That the City Clerk shall certify the passage and adoption of this Resolution, and the minutes of this meeting shall so reflect the presentation of the Engineer's Reports.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1338

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1339
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAMS AND ASSESSMENTS,

AND PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN
ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICTS NO. 1, 2 AND 3 FOR FISCAL YEAR 2023-24.

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

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

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

SECTION 4. That this City Council hereby confirms and orders the annual levy of the assessments for the referenced fiscal year in the amounts as set forth in the Engineer's Reports, and as referred to in the Resolution of Intention as previously adopted relating to said annual assessment levy.
1340
SECTION 5. That the adoption of this Resolution constitutes the levy of the assessments for the referenced fiscal year.

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

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

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

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

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
1341
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1342

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1343
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN ONTARIO PARKWAY MAINTENANCE ASSESSMENT DISTRICT NO. 4 FOR
FISCAL YEAR 2023-24.

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

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

SECTION 3. That based upon the Assessment Engineer’s Report and the testimony and other evidence presented at the public hearing, the City Council hereby makes the following determinations regarding the assessments proposed to be imposed for the referenced Fiscal Year:
1344
A. The proportionate special benefit derived by each individual parcel assessed has been determined in relationship to the entirety of the cost of the operations and maintenance expenses.

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

C. Only the special benefits have been assessed.

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

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

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

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

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

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

SECTION 9. That the City Manager is hereby ordered and directed to file, or cause to be filed, the assessment roll with the County Auditor, together with a certified copy of this Resolution upon its adoption.
1345
SECTION 10. That a certified copy of the assessment and diagram shall be filed in the Office of the City Manager, with a duplicate copy on file in the Records Management Department and open for public inspection.

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
____________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
____________________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1346

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1347
Department: Investments & Revenue Resources
Prepared By: Nathaniel Gibson
Staff Member Presenting:

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

Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 36
SUBJECT: ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING MAINTENANCE DISTRICT NOS. 1 AND 2 FOR FISCAL YEAR 2023-24.

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

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

A. Adopt a Resolution approving the Engineer’s Reports relating to the levy of assessments for each district;
B. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 1; and C. Adopt a Resolution confirming the diagram and assessment and providing for the assessment levy within Street Lighting Maintenance District 2.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Operate in a Businesslike Manner
Focus Resources in Ontario's Commercial and Residential Neighborhoods FISCAL IMPACT: As proposed, special assessment revenue will be generated in the amount of $339,815 from the Street Light Maintenance (SLMD) No. 1 and $102,417 from SLMD No. 2 during Fiscal Year 2023-24. A portion of the facilities within SLMD No. 1 provides a general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $7,972 will be funded by the General Fund and is included in the City’s Fiscal Year 2023-24 Adopted Operating Budget. Excluding the General Benefit portion located in SLMD No. 1, both districts will have sufficient revenue to cover expenditures without additional funding being needed from the General Fund.

BACKGROUND & ANALYSIS: Street Lighting Maintenance District No. 1 was formed in 1984, and Street Lighting Maintenance District No. 2 was formed in 1999, pursuant to the Landscaping and Lighting Act of 1972 (the 1972 Act), to help minimize the continually increasing cost for maintaining and operating the City’s street lighting system. A special assessment is levied annually on 1348
benefiting properties for the cost of maintenance and operation of certain street lighting facilities within the districts. The locations of the districts are shown on the provided maps.

The City’s Public Works Agency establishes the annual maintenance costs and maintains the street lighting system. As required by the 1972 Act, an Engineer’s Report for each district is prepared annually by the City's consultant, Harris & Associates, apportioning the costs to each parcel within the districts. The districts are comprised of commercial, industrial and some multi-family residential properties. Due to varying characteristics, the districts are organized into benefit zones and/or maintenance areas. Each zone/maintenance area is assessed for only the operation and maintenance of the facilities from which it receives direct special benefit. The total assessment for each zone/maintenance area is then apportioned to its constituent parcels. Therefore, the assessments are unique and specific to each individual parcel of property.

The total assessment during tax year 2022-23 was $315,643 in SLMD No. 1, and $95,480 in SL MD No. 2. The City’s proposed Fiscal Year 2023-24 levy for the two street light maintenance districts is based on the previous year’s actual expenses. The proposed total assessments for tax year 2023- 24 are $339,815 in SLMD No. 1, and $ 102,417 in SLMD No. 2. A portion of the facilities within SLMD No. 1 provide general benefit to the public at large and cannot be funded with the assessment. The general benefit amount of $7,972 will be funded by the General Fund and is included in the City’s Adopted Fiscal Year 2023-24 Operating Budget. The assessed tax rates for Fiscal Year 2022-23, and the maximum and proposed tax rates for Fiscal Year 2023-24, are shown in Exhibit A.

On June 20, 2023, the City Council adopted Resolutions which ordered the preparation of Engineer's Reports for the annual levy of assessments within each district, preliminarily approved the Engineer's Reports, declared City Council's intention to levy and collect assessments within the districts for the referenced fiscal year, and set July 18, 2023, as the date for the public hearing for each district. Notices of the public hearings have been published, and proof of publication is on file in the Records Management Department.

The Engineer’s Reports, which have been prepared for each district pursuant to the 1972 Act, are on file in the Records Management Department. Each district’s report is on file in the Records Management Department. Each report includes plans and specifications for the improvements being operated and maintained, an estimate of costs, a diagram of the area proposed to be assessed, and an assessment of the costs to the various parcels within the districts. 1349
Prior Year Maximum Proposed
2022-23 2023-24 2023-24
SLMD No. 1, Zone 2000-1 per AU $ 108.00 $ 185.00 $ 116.00 SLMD No. 1, Zone 2000-2 per AU $ 63.00 $ 152.00 $ 67.00 SLMD No. 2, MA# 99-1 $ 4,358.00 $ 13,191.00 $ 4,677.00
SLMD No. 2, MA# 99-2 $ 2,333.00 $ 6,559.00 $ 2,503.00
SLMD No. 2, MA# 99-3 $ 4,666.00 $ 10,931.00 $ 5,006.00
SLMD No. 2, MA# 99-4 $ 1,554.00 $ 4,378.00 $ 1,642.00
SLMD No. 2, MA# 99-5 $ 1,282.00 $ 4,104.00 $ 1,376.00
SLMD No. 2, MA# 99-6 $ 12,565.00 $ 38,307.00 $ 13,483.00 SLMD No. 2, MA# 99-7 $ 422.00 $ 1,185.00 $ 453.00
SLMD No. 2, MA# 99-8 $ 3,111.00 $ 8,745.00 $ 3,338.00
SLMD No. 2, MA# 00-1 $ 2,839.00 $ 4,024.00 $ 3,046.00
SLMD No. 2, MA# 00-2 $ 1,555.00 $ 2,685.00 $ 1,668.00
SLMD No. 2, MA# 00-3 $ 8,552.00 $ 14,756.00 $ 9,174.00
SLMD No. 2, MA# 00-4 $ 52,240.00 $ 84,497.00 $ 56,053.00 Street Lighting Maintenance Districts Proposed Levy Rates FY 23-24

EXHIBIT A
1350
N
ote:

Referenceisherebymadetothe
MapsofTheAssessoroftheCountyof
SanBerndardino,California,foradetailed
descriptionofthelinesanddimensions
oftheparcelsshownhereon.

Legend
#
SafetyLight(339)
!
Conventional(1,422)
Zone2000-1
Zone2000-2
.

Date:3/13/2023
01,8003,6007,200Feet
StreetLightMaintenanceDistrict1
VicinityMap
S:\Engineering\Traffic & Transportation\Traffic Engineering\Research and General Inquiries\Street Light Maintenance District Count Request\FY 23-24\SLMD 1\SLMD 1 Count_2023-03-13_mapbook.mxd 1351
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Referenceisherebymadetothe
MapsofTheAssessoroftheCountyof
SanBerndardino,California,foradetailed
descriptionofthelinesanddimensions
oftheparcelsshownhereon.

Legend
#
SafetyLight(19)
!
Conventional(134)
MaintenanceDistrict2
.

Date:3/14/2023
01,8753,7507,500Feet
StreetLightMaintenanceDistrict2
VicinityMap
S:\Engineering\Traffic & Transportation\Traffic Engineering\Research and General Inquiries\Street Light Maintenance District Count Request\FY 23-24\SLMD 2\SLMD 2 Count_2023-03-13_mapbook.mxd 01,8753,7507,500Feet
1352
RESOLUTION NO. ________

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

CALIFORNIA, APPROVING THE ENGINEER'S REPORTS FOR THE

ANNUAL LEVY OF ASSESSMENTS WITHIN STREET LIGHTING
MAINTENANCE DISTRICTS NO. 1 AND 2 FOR FISCAL YEAR 2023-24.

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

A. Plans and Specifications,
B. Estimates of cost,
C. Diagrams of the Districts, and
D. Assessment of the estimated costs
are hereby approved, and are ordered to be filed in the Records Management Department, as a permanent record and to remain open to public inspection. 1353
SECTION 3. That the City Clerk shall certify to the passage and adoption of this Resolution, and the minutes of this meeting shall so reflect the presentation of the Engineer's Reports.

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1354

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1355
RESOLUTION NO. ________

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 1 FOR FISCAL YEAR 2023-24.

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

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

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

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

C. Only the special benefits have been assessed.

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

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

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

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

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

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

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1358

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

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

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

CALIFORNIA, CONFIRMING THE DIAGRAM AND ASSESSMENT AND

PROVIDING FOR THE ANNUAL ASSESSMENT LEVY WITHIN STREET
LIGHTING MAINTENANCE DISTRICT NO. 2 FOR FISCAL YEAR 2023-24.

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

NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS:

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

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

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

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

C. Only the special benefits have been assessed.

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

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

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

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

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
________________________________

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

BEST BEST & KREIGER LLP

CITY ATTORNEY
1362

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

AYES: COUNCIL MEMBERS:

NOES: COUNCIL MEMBERS:

ABSENT: COUNCIL MEMBERS:
____________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
1363
Department: Community Life and Culture
Prepared By: Lacey A Rightmer
Staff Member Presenting:

Helen McAlary, Executive Director Community
Life and Culture
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 37
SUBJECT: A PUBLIC HEARING TO CONSIDER ADOPTION OF AN ORDINANCE AMENDING CHAPTER 33 OF TITLE 5 OF VOLUME I TO THE ONTARIO MUNICIPAL CODE,

AMENDING THE PUBLIC ART PROGRAM, RENAMING THE PUBLIC ART ADVISORY

COMMITTEE TO THE PUBLIC ART ADVISORY COMMISSION, ADDING

REGULATIONS FOR PUBLIC ART FUNDED BY CITY FUNDS ON CITY PROJECTS,

AND FINDING THE ACTION EXEMPT FROM THE CALIFORNIA ENVIRONMENTAL QUALITY ACT (CEQA).

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council introduce and waive further reading of an Ordinance amending the public art program, renaming the Public Art Advisory Committee to the Public Art Advisory Commission, adding regulations for the public art funded by City funds on City projects, and finding the action exempt from CEQA.

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 Operate in a Businesslike Manner
FISCAL IMPACT: If approved, the City Council will set aside one percent (1%) of the approved budget of new vertical construction projects with a construction budget of $1,000,000 or more for the commission, acquisition, and/or development of public art or artworks of City-funded Capital Improvement Projects. Projects funded by Bonds, Enterprise funds, and some Special Revenue funds are not subject to the one percent (1%) public art fee.

BACKGROUND & ANALYSIS: In May 2022, there were first and second readings of a proposed Ordinance that established a Public Art Program, Committee, and development fee. On May 17, 2022, the City Council adopted the Ordinance. This is a proposed amendment to the Ordinance.

There will be a Public Hearing held to consider this draft amendment.

This Amendment recommends the addition of Section 5-33.07 (Public Art Funded by City Funds on City Projects). The section adds City-funded Capital Improvement Projects with a construction budget of $1,000,000 or more and with significant public access to the list of eligible projects for the 1364
Public Art Program. If the project qualifies, the City Council will set aside one percent (1%) of the approved budget for development costs of the project for the commission, acquisition, and/or development of public art or artworks on-site. For projects with a construction budget of $100,000,000 the City Council will have the discretion to designate the use of funds towards public art projects off-site. The calculation for one percent (1%) of the approved budget for development costs is based off of development construction costs and exclude property acquisition, demolition, financing, or any salaries and benefits of public employees supporting the project.

Projects by the Ontario Municipal Utilities Company may not use any ratepayer money for public art, however, non-ratepayer funds may be used for Ontario Municipal Utilities Company projects such as the construction of a new building.

In all cases, the percentage of public funds set aside for public art as part of City-funded Capital Improvement Projects are at the discretion of the City Council given budget constraints. The public funds will only be used for new vertical construction projects. Park development, or improvements to existing facilities will not qualify. There is not a requirement for an artist to be involved in the commission, acquisition, and/or development of such public art or artworks.

The Public Art Advisory Committee will be renamed the Public Art Commission. This conforms to best practices of other City Council appointed Boards and Commissions. Additionally, this eliminates any confusion with any other arts committees.

For private projects that go through the City's normal development process, City Staff will provide input on proposed art or artworks not the Public Art Commission. For public art projects not tied to a City capital improvement project, the Public Art Commission will review such proposals and make determinations to allow or not allow such art or artworks. For public art projects tied to a City capital improvement project, the Public Art Commission will make a recommendation to the City Council regarding any proposed art or artworks.

ENVIRONMENTAL REVIEW: This project is categorically exempt from the requirements of CEQA pursuant to Section 15061(b)(3) in that the activity is covered by the general rule that CEQA applies only to project which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. 1365
ORDINANCE NO. _______

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, AMENDING CHAPTER 33 TO TITLE 5 OF VOLUME I TO

THE ONTARIO MUNICIPAL CODE, AMENDING THE PUBLIC ART

PROGRAM, RENAMING THE PUBLIC ART ADVISORY COMMITTEE TO

THE PUBLIC ART ADVISORY COMMISSION, ADDING REGULATIONS

FOR PUBLIC ART FUNDED BY CITY FUNDS ON CITY PROJECTS AND FINDING THE ACTION EXEMPT FROM CEQA.

WHEREAS, the City of Ontario (“City”) desires to introduce art and artworks into the community; and
WHEREAS, public art enriches the lives of City residents and visitors by exposure to art in various forms; and
WHEREAS, the City encourages public dialogue and interaction through a public art program; and
WHEREAS, the City desires embracing a broad range of artworks, which are reflective of the overall diversity of the City’s residents and visitors; and WHEREAS, the City desires to establish a public art program that would allow and regulate a variety of artworks, including murals, that are either developed on City-owned public property or on private property as part of a development project; and WHEREAS, the City desires to rename the Public Art Program Advisory Committee to a Commission to be more consistent with industry standard terms; and WHEREAS, the City desires to use City funds for various capital improvement projects; and
WHEREAS, the City desires to expend an amount equal to one percent (1%) of City capital improvement projects, with some exceptions, in order to commission and/or acquire public art.

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

SECTION 1. The recitals above are true and correct and are hereby incorporated herein by this reference.

SECTION 2. Chapter 33 of Title 5 of Volume I of the Ontario Municipal Code is hereby amended to state as follows (new language in underline and deleted language in strikethrough):
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“Chapter 33: Public Art Program
5-33.01 Purpose
5-33.02 Public Artworks: Definitions
5-33.03 Public Art Program Advisory Commission Committee 5-33.04 Policy for the Gift or Long Term Loan of Public Art 5-33.05 Public Art in Commercial and Industrial Development Projects 5-33.06 Murals
5-33.07 Public Art Funded by City Funds on City Projects Sec. 5-33.01 Purpose.

This Chapter may be known and cited as the “Ontario Public Art Program.” It is the goal of the City's Public Art Program to promote public art and art in public places, as a cultural resource for the community, and act as a mechanism to enhance the City's commercial vitality and economic stability. Furthermore, it is intended that the Ontario Public Art Program will serve to enrich the community aesthetic and built urban environment, by making available to the public a diverse collection of artworks throughout the City. The aforementioned goals will be realized through bringing contemporary art into the environment and life of Ontario, enriching the lives of City residents and visitors by the exposure to art in various forms, encouraging both emerging and established artists living in Ontario and the Ontario region by supporting and purchasing their work, acquiring a distinguished collection of art representing varying genres, styles, scales, mediums, forms, and intent, and reflective of trends and disciplines in art on a local, regional, national, and international level, integrating artists into the City's design process, encouraging public dialogue and interaction through a public art program; embracing a broad range of artworks, which are reflective of the overall diversity of current works in the field of visual arts, enriching the quality of life and economic vitality of Ontario, and further defining distinct characteristics of neighborhoods.

Sec. 5-33.02. Public Artworks: Definitions.

As used in this Chapter, the words, terms, and phrases listed below in correct alphabetical order, shall have the following meanings:
(a) “Artist” means a practitioner in the arts, recognized by his or her critics and peers as a professional who possesses serious artistic intent and ability. (a)(b) “Artworks” means original pieces of art, including limited editions, not limited by medium used. It may include paintings, sculptures, murals, mosaics, and fountains.

These categories may be realized through such media as steel, bronze, stained glass, concrete, wood, ceramic tile, stone, and other suitable materials. Artworks may also include earthworks, performing arts, literary arts, special events, festivals, and other arts and culture programming and/or visual arts not specifically outlined herein, as may be deemed appropriate by the Public Art Program Advisory Committee. Artworks include both temporary and permanent projects. Artworks does not include objects that are mass produced.
(b)(c) “Commercial message” means any message that advertises a business conducted, services rendered, or goods produced or sold.
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(c)(d) “Commercial project” means any site, structure, facility, or land use allowed pursuant to Table 5.02-1 (Land Use Matrix) of the City of Ontario Development Code, within any of the commercial zoning districts established under Section 5.01.005.B (Commercial Zoning Districts) of the Development Code, or within the commercial portion of any residential mixed-use development.
(d)(e) “Industrial project” means any site, structure, facility, or land use allowed pursuant to Table 5.02-1 (Land Use Matrix) of the City of Ontario Development Code, within any of the industrial zoning districts established under Section 5.01.005.D (Industrial Zoning Districts) of the Development Code, or within the industrial portion of any nonresidential mixed-use development.
(e)(f) “Original art mural” means a unique, hand-painted, hand-tiled, or digitally printed image on the exterior wall of a building that does not contain any commercial message. (g) “Public Art Collection” means publicly accessible artwork that is acquired or commissioned by the City pursuant to the public art program. (h) “Public Art Handbook” means a document that guides the Public Art Program on the many aspects of having a Public Art Collection, including but not limited to the acquisition, commission, gift, loan, maintenance and deaccession of public art. (i) Public Art Program” means the program established for the selection, acquisition, creation, installation, conservation, restoration, management, planning, decommission, community education and publicity of public art in the City of Ontario. (f)(j) “Public place” means any area on public property, either interior or exterior, which must be accessible and visible to the general public.
(g)(k) “Project applicant” means the property owner, developer or other responsible party proposing a project requiring an art component.
(h)(l) “Project improvement valuation” means the value of the tenant improvements as determined by the then-current City total valuation methodology. (i)(m) “Project valuation” means the value of the project as determined by the then-current City total valuation methodology.
(j)(n) “Project site” means the location of the improvements being developed. (k)(o) “Public art on City property” means original works of art located on, affixed to, or applied on City-owned property.
(l)(p) “Private art for public enjoyment” means original works of art located on, affixed to, or applied on private property that are accessible and/or visible to the general public. (m)(q) “Public Art Program Advisory Commission Committee” means the five-member advisory commission committee appointed by the City Council that is responsible for ensuring that the criteria established by this Public Art Program have been met. (n)(r) “Vintage original art mural” means an original art mural that existed prior to the enactment of this Chapter.

Sec. 5-33.03. Public Art Program Advisory Commission Committee. (a) There is hereby created and established a Public Art Program Advisory Commission Committee. The Public Art Program Advisory Commission Committee shall be comprised of five members who shall be appointed by the City Council. (b) Members of the Public Art Advisory Commission Committee shall be comprised as follows:
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(1) Three (3) of the five (5) members shall be given priority consideration from each of the following organizations, provided that the City has received an application from at least one representative from each organization.
(A) A representative from the Chaffey Community Museum of Art; (B) A representative from Ontario Heritage;
(C) A representative from the Ontario Museum of History & Art Associates; (2) The remaining two (2) members, or more if the City has not received an application from each of the three (3) organizations listed in Section 5-33.03(b)(1)(A)-(C), may be selected from the following:
(A) Local non-profit historic preservation advocacy organization; (B) Local arts educators;
(C) Local artists;
(D) Local performers;
(E) Arts professionals;
(F) College-level arts students; and
(G) Architects, landscape architects, and other design professionals. (3) Notwithstanding any contrary provision in the Ontario Municipal Code, members of the Public Art Advisory Commission Committee may be non-residents of the City, subject to the limitation that no more than two (2) of the five (5) members may be non-residents of the City.
(4) The City Councilmember Liaison to the Ontario Museum of History & Art, shall serve as an ex officio, non-voting member.
(c) The process for appointment to the Public Art Advisory Commission Committee shall be as follows. A call for applications will be sent out for interested appointees. Community Life & Culture staff will review the applications received and determine whether the applicants meet the basic requirement from this Section. Community Life & Culture staff will then present the qualified candidates to the City Council for their review and nomination. The Mayor shall appoint the members of the Commission Committee, subject to ratification by a vote of the entire City Council. Each Councilmember may suggest one member from the list of qualified candidates for the Mayor to appoint to the Commission Committee.
(d) Members of the Public Art Program Advisory Commission Committee shall serve a term of four (4) years. A person may serve multiple terms. 1369
(e) Powers and Duties. The Public Art Program Advisory Commission Committee shall ensure that all criteria established by this Public Art Program have been complied with.

The Advisory Commission Committee shall review all requests for the installation of public art, examining proposals for public safety, weather resistance, balance with the program, public response, proper lighting, public accessibility, installation methods, proportion, composition, the artist’s previous experience, art training, and exhibition record. Advisory Commission Committee support shall be provided by the Museum, Arts & Culture Director or designee. The Advisory Commission may establish, and amend from time to time, a Public Art Handbook. Proposed commission, acquisition, and/or development of public art or artworks shall go to the Commission for review even if an artist is not involved. For public art funded by City funds on City projects, the Advisory Commission shall provide the City Council a recommendation regarding any proposed on-site public art. (1) Construction and Installation of Public Artworks (Permanent). The following procedure is to be followed in the construction of on-site permanent public artworks:
(A) The composition of the proposed artwork shall be of a permanent type of material in order to be a durable against vandalism, theft, and weather, and require a low level of ongoing maintenance.
(B) The artwork shall be related in terms of scale, material, form and content to immediate and adjacent buildings and landscaping so that it complements the site and surrounding environment. A Certificate of Appropriateness pursuant to Ontario Development Code Section 4.02.050 may be required to ensure that the artwork does not cause an adverse impact to historic resources.
(C) The artwork shall be constructed by persons experienced in the production and installation of such artwork.
(D) The artwork shall be permanently affixed to the property unless it is designated a temporary exhibit in the scope of the project when commissioned. (E) Installation of the artwork shall be planned and implemented to enhance the piece and allow for unobstructed viewing from as many angles as possible. (F) The City shall obtain from the artist, complete maintenance instructions, including methods to maintain the piece and the frequency of maintenance. (G) Each piece of artwork shall be identified by a plaque at the site of an appropriate size and scale to the piece. The plaque shall be made of cast metal and then placed in a location near the art piece listing the title of the piece, the artist, and the date as well as the city and the art in public places program. (2) Construction and Installation of Public Artworks (Temporary). The following procedure is to be followed in the construction of on-site temporary public artworks:
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(A) The composition of the proposed artwork shall be of a type of material in order to be a durable against vandalism, theft, and weather, and require a low level of maintenance.
(B) The artwork shall be related in terms of scale, material, form and content to immediate and adjacent buildings and landscaping so that it complements the site and surrounding environment.
(C) The artworks shall be constructed by persons experienced in the production and installation of such artwork.
(D) The method of attachment or securing the artwork shall be identified. (E) Installation of the artwork shall be planned and implemented to enhance the piece and allow for unobstructed viewing from as many angles as possible. (F) The City shall obtain from the artist, complete maintenance instructions, including methods to maintain the piece and the frequency of maintenance. (G) Each piece of artwork shall be identified by a plaque at the site of an appropriate size and scale to the piece. The plaque shall be made of cast metal and then placed in a location near the art piece listing the title of the piece, the artist, and the date as well as the city and the art in public places program. (H) Any security measures needed to secure the artwork, the estimated cost of the security, and a source of funding for the security shall be identified. (I) Any temporary artwork must include a deinstallation plan that clearly identifies which parts of the artwork (if any) need to be returned to the artist and which may be disposed of after the term of the installation.

Sec. 5-33.04 Policy for the Gift or Long Term Loan of Public Art. (a) Purpose. Unsolicited gifts or long term loans to the City can be an important part of the City's art collection. The purpose of this Section is to ensure that proposed gifts of public art undergo a review process to ensure that acceptance of such gifts takes place in a fair and uniform manner. Furthermore, it is the intent of this Section to ensure that potential gifts of public artworks are evaluated as carefully as artworks that are commissioned, and that such artworks undergo a careful review process that evaluates a gift based upon acceptance criteria established according to the purposes, guidelines, goals, and selection process that guides artworks that are commissioned. (b) Applicability. This Section applies to all unsolicited offers of donation or long term loans of public artworks to the City of Ontario. Unsolicited offers of donation or long term loans of artworks for display in interior spaces of City owned or leased buildings shall not be subject to the procedures in this Section; however, the City Manager may choose to opt-in to the procedures in this Section for review and consideration of such artworks. 1371
(c) Procedures for Gifts or Long Term Loans. For each proposed gift or long term loan of public art, a written proposal or letter of intent shall be submitted to the City Manager. The City Manager shall refer the proposal to the Public Art Advisory Commission Committee for review and recommendation. The City Council’s decision shall be final and conclusive.

The proposal shall consist of the following items:
(1) Completed application form;
(2) Photographs, drawings, models, or designs of proposed artwork; (3) Description and samples (if available) of materials and colors; (4) Appraisal by a professional art appraiser (for long term loans); (5) A site plan, to include photographs of site and neighborhood, drawings of the proposed site with the project to scale. If located within a historic district or on any other historic resource, a Certificate of Appropriateness may be required pursuant to Ontario Development Code Section 4.02.050;
(6) Proposed transportation/delivery schedule, and request of City responsibility for transport of the artwork to the City, if applicable; (7) Proposed installation schedule;
(8) Maintenance manual, including the long-term intent of artist for the preservation and maintenance of artwork;
(9) Maintenance schedule prepared by professional art curator; (10) Estimated budget for installation and maintenance; (11) Resume and examples of artist’s previous work;
(12) Duration of the loan (if applicable)
(13) Proof of insurance sufficient to meet the requirements of the City’s Risk Manager, if necessary; and
(14) Building permits, if necessary.
(d) Criteria for the Evaluation of Proposed Gifts or Long Term Loans of Public Art. The following criteria shall be used in evaluating proposed gifts of long term loans of public art for review and acceptance by the City:
(1) Artworks may be existing or proposed works of art;
(2) Artworks must be one-of-a-kind or part of an original series. Reproductions of originals are not considered eligible for acceptance;
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(3) Gifts must maintain high artistic standards and are appropriate in relationship or historical relevance to the City;
(4) The proposed location (if specified) is available and is appropriate to the artwork's content, scale, and material. Factors to be considered in selecting an appropriate site include type of artwork, relationship to architectural and natural features, visibility and public access, traffic patterns, future development plans for the area (if known), and public use patterns of the site and surrounding area. If a location is on a historic building, site, landscape or within a district issuance of a Certificate of Appropriateness may be required pursuant to Ontario Development Code Section

4.02.050;
(5) Restrictions from the donor, if any;
(6) Artwork proposals must demonstrate how the surrounding community has been involved and consulted in the process;
(7) Costs of installation and maintenance and repair over the expected life of the artwork shall be defined;
(8) Artistic quality (vision, originality and craftsmanship); (9) Context (architectural, historical, geographical and socio-cultural context of the site);
(10) Quality and permanency of materials (if ephemeral material: is appropriate documentation included?);
(11) Safety;
(12) Diversity of artists (gender, race, culture) representation in the existing collection of publicly-accessible artworks; and
(13) Diversity of artworks (media, scale, style, intention) in the existing collection of publicly accessible artworks.
(e) Long Term Loans of Artwork. Upon recommendation by the Public Art Program Advisory Commission Committee and acceptance by the City Council, long term loans of artwork may be displayed upon execution of a contract between the City and the artist clearly identifying the terms and conditions of the loan and the rights and responsibilities of all parties. Donations to the Ontario Museum of History & Art (“Museum”) are subject to a different approval process established by the Museum and/or subject to the City’s Donation Policy.
(f) Acceptance of Gifts of Public Art. Upon recommendation by the Public Art Program Advisory Commission Committee and acceptance by the City Council, gifts of artworks will be deemed part of the permanent collection of the City, and registered with the City’s 1373
Department of Museum Arts & Culture, once the donor has fulfilled the requirements as stated in the Public Art Handbook, which shall include the following:supplied the City with the following:
(1) Written certification of the installation of the artwork, if completed by artist; (2) An executed contract between the City and the artist transferring title of the artwork and clearly defining the rights and responsibilities of all parties; (3) Written instructions for the care, maintenance, preservation, and handling of the artwork, prepared with the assistance of a professional art conservator to be provided by the artist;
(4) A sworn statement of no liens, claims, or other encumbrances associated with the artwork;
(5) A written assignment of any and all warranties for materials used, or labor performed by subcontractors or other persons; and
(6) A written assignment conveying, at a minimum, a perpetual license for the City to reproduce the artwork in digital or print medium for City purposes. The written assignment may include, should it be the artist’s desire, the conveying of all rights, including copyrights and waiver of all rights under the Visual Artist's Rights Act of 1990, and its amendments (Section 106A of the United States Copyright Act; Pub. L. No. 101- 650).

Donations to the Museum shall be subject to a different approval process established by the Museum and/or subject to the City’s Donation Policy. (g) Title and Ownership. Permanent gifts of artwork to the City shall become the property of the City once an Agreement for Acceptance Donated Artwork has been fully executed and the Donor has delivered the Bill of Sale/Transfer of Title. At such time, all rights of title and ownership shall be conveyed to the City, and all future decisions regarding the use and continued ownership of the artwork shall be under the sole discretion of the City.

As owner of the artwork, the City may exercise any and all legal rights of ownership, including, but not limited to, sale, relocation, or removal of the artwork. (h) Maintenance. When artwork gifts are situated at or on City owned or occupied properties or facilities, the City shall assume its continued maintenance. (i) Removal, Relocation, or Deaccession of an Artwork. Artworks gifted to the City may be relocated, removed, or deaccessioned from the City's public art collection if the artwork becomes a hazard or liability, if the approved terms of acceptance are not fulfilled, or for any other reason as determined by the City Council, upon recommendation by the Public Art Program Advisory Commission Committee.
(j) Exemption. Gifts of state presented to the City by foreign governments or by other political jurisdictions of the United States that may be accepted by the City Council or City 1374
Manager on behalf of the City. Permanent placement of any such artworks will be determined jointly by the City Manager and the Public Art Program Advisory Commission Committee. If not provided by the donor, maintenance of the art will be the responsibility of the host City department.

Sec. 5-33.05 Private Art for Public Enjoyment in Commercial and Industrial Development Projects.
(a) Purpose.
(1) The purpose of this Section is to establish a program for private art for public enjoyment in which private developers shall be required to integrate artworks throughout the commercial and industrial sectors of the City, for the benefit of the general public. The goals of this program are as follows:
(A) Differentiate the City of Ontario as a special place to live, work, play, visit, and invest;
(B) Strengthen cultural awareness, creativity, and innovative thinking in the community;
(C) Integrate the vision of artists with the perspective of other design professionals into the planning and design of the urban landscape; (D) Ensure public artworks are visually accessible to every member of the community;
(E) Provide an acceptable counterbalance to what many consider to be the undesirable effects of commercial and industrial development (e.g. construction noise, traffic, congestion, and pollution); and
(F) Build a diverse collection of outdoor artworks by qualified artists and ensure the collection is continually maintained.
(2) The public art in commercial and industrial development projects program provides developers a way to make a lasting and visible contribution to the community and alleviate the undesirable effects that may be associated with commercial and industrial development.
(b) Applicability.
(1) All new commercial and industrial development projects, and new tenant improvements constructed in or on new or existing commercial and industrial buildings, having a total project building valuation of $500,000 or more, shall be subject to the requirements of this Section. This Section does not apply to the residential portion of mixed-use projects.
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(2) All residential projects and public facilities projects constructed by the City or by nonprofit organizations shall be exempt from the requirements of this Section. (c) Minimum Public Art Allocation.
(1) The required minimum public art allocation fees shall be as follows, and may be amended from time to time by Resolution:

Eligibility On-Site Fee Option City Fee Option
New
commercial/industrial
development
$5,000,000 or more.

Developer installs OnSite public art display
valuated at 1% of the
total final project
valuation as
determined by the
building official or
designee.

Developer provides
the City $10,000 for
City to deposit into
the Public Art Fund to
be used for the
installation of a new
public art display or
maintain, upgrade, or
expand an existing
display.

Tenant Improvement
on
commercial/industrial
development $500K
or more.

Developer installs OnSite public art display
valuated at 1% of the
total final project
improvement
valuation as
determined by the
building official or
designee.

Developer provides
the City $5,000 for
City to deposit into
the Public Art Fund to
be used for the
installation of a new
public art display or
maintain, upgrade, or
expand an existing
display.
(2) All projects created through the On-Site Fee Option must be reviewed and approved by the City and shall be installed in compliance with all federal, state, and local applicable laws and regulations.
(3) All projects installed through the On-Site Fee Option must be maintained by the developer during the life of the buildings and structures. (4) If the artwork installed pursuant to this Section is altered, removed, is not maintained in good condition, or is not provided as required, the City may exercise any and all available legal and/or equitable remedies.
(d) Penalties. Violations of this Section may be subject to the penalties set forth in Chapter 2 of Title 1 of Volume I of the Ontario Municipal Code and/or subject to revocation of the entitlements for the development project.
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Sec. 5-33.06 Murals.
(a) Murals commissioned by the City may only be installed and maintained if they have been approved by the Public Art Program Advisory Commission Committee. Other murals not commissioned by the City will be subject to an objective design checklist established, and amended from time to time, by Resolution, and subject to ministerial City review.

Murals may only be located in commercial, industrial, Ccity-owned public property, and private property. The Advisory Commission Committee shall have the authority to review and approve City commissioned murals in accordance with the procedures and standards outlined in this Chapter.
(b) Standards. The Public Art Program Advisory Commission Committee shall ensure that City commissioned murals are consistent with the following standards:
(1) Murals shall be an original art mural, a work of art, that is hand-painted, handtiled or digitally printed image or digital display system on the exterior surfaces of a building or site designed as a work of art. The image cannot be advertising or other commercial message with brand name, product name, abbreviation thereof, company or business name or logo, trademark, brand imagery or products and services for sale. The Public Art Program Advisory Commission Committee will determine if an image, painting pattern, or other element on the exterior of a building or site is a work of art. If the Public Art Program Advisory Commission Committee determines that the image, painting pattern, or other element is not a work of art, then other applicable law may be applied such as sign or building design guidelines by other City departments. (2) Murals must be durable and capable of being well-maintained. (3) Murals shall not compromise the proper function of any building or use or diminish public safety.
(4) Murals shall not incorporate recognized signs of hatred or discrimination against any race, color, sex, age, national origin, disability, religion, ancestry, marital status, familial status, gender identity or expression, or sexual orientation. (5) Murals shall not be obscene or harmful to minors as defined by law. (6) A Certificate of Appropriateness shall be required if the mural is on a historic building or site pursuant to Ontario Development Code Section 4.02.050. (c) Application fee. There shall be an application fee of $100 per non-City-commissioned mural application, which may be amended from time to time by Resolution. (d) An Original Art Mural is not considered a sign as defined in the Ontario Development Code. However, nothing contained in this Chapter is intended to change the rules governing the determination of whether a mural may be placed on a historic building. (e) A City commissioned mural shall remain in place, without alteration, for a minimum of six (6) months.
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(f) Removal. A City commissioned mural may be removed after six (6) months from the date of registration, so long as it is not a registered historic landmark itself or associated with a registered historic landmark property, under any the following circumstances as determined by the Executive Director of the Community Life & Culture Agency:
(1) The property is sold;
(2) The structure or property is substantially remodeled or altered in a way that precludes continuance of the mural;
(3) The property undergoes a change of use authorized.

Sec. 5-33.07 Public Art Funded by City Funds on City Projects. (a) For the purposes of this Section, “capital improvement project” means new vertical City construction projects with a construction budget of $1,000,000 or more that provide significant general public access. Examples include, but are not limited to, new libraries, fire stations, police stations, department campuses/headquarters, community centers, bridges, plazas, bus shelters, shade structures, and structures within parks such as but not limited to barns. A “capital improvement project” does not include park improvements, new park development, or improvements to existing facilities. (b) For the purposes of this Section, “development costs” means the total development costs of the capital improvement project. Development costs may include, but are not limited to, any and all construction costs, and site work expenses. Development costs shall not include property acquisition, demolition, financing, or any salaries and benefits of public employees supporting the capital improvement project. (c) For all City capital improvement projects that are funded through City funds, with the exception of capital improvement projects funded through bond proceeds or development impact fees as described in subsection (d) and/or (e) herein below, the City shall, at the discretion of the City Council, set aside an amount equal to one (1) percent of the City Council approved budget for development costs of such capital improvement projects for the commission, acquisition, and/or development of public art or artworks on site. Projects by the Ontario Municipal Utility Company shall not use any ratepayer money for public art but non-ratepayer funds may be used for such Ontario Municipal Utility Company projects such as constructing a new building. There shall be no requirement that an artist be involved in the commission, acquisition, and/or development of such public art or artworks. For the purposes of this Section, City funds means any funds held in City accounts, including but not limited to the general fund, special funds, and bond revenues, excluding any enterprise and ratepayer funds and any funds limited by federal, state, and/or local statue, regulation, or funding source. Applicable capital improvement projects may apply the one (1) percent of funds towards public art on the same project site.

However, the City Council shall have the discretion to designate the use of such funds towards public art projects other than on the site from which the funds were budgeted for projects valued at $100,000,000.00 or more.
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(d) Bond proceeds may be utilized for the commission and/or acquisition of Artwork on a case by case basis and upon review and approval by City Finance staff and City’s Bond Counsel. If City Finance staff and City’s Bond Counsel approve the use of bond proceeds for the commission and/or acquisition of a specific Artwork, then the Public Art Commission shall request that the specific amount needed to commission and/or acquire that Artwork be distributed to cover expenses, up to one (1) percent of the approved budget for development costs of such capital improvement project. Bond proceeds shall not be directly transferred to the Public Art Fund upon issuance of bonds but will only be distributed on a case by case basis with approval by City Finance staff and City’s Bond Counsel.
(e) Development Impact Fees may be utilized for the commission and/or acquisition of Artwork on a case by case basis and upon review and approval by City Finance staff and City’s legal counsel. If City Finance staff and City’s legal counsel approve the use of Development Impact Fees proceeds for the commission and/or acquisition of a specific Artwork, then the Public Art Commission shall request that the specific amount needed to commission and/or acquire that Artwork be distributed to cover expenses, up to one (1) percent of the approved budget for development costs of such capital improvement project.”
SECTION 3. If any section, subsection, subdivision, sentence, clause, or phrase in this Ordinance or any part thereof is for any reason held to be unconstitutional, invalid or ineffective by any court of competent jurisdiction, such 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 adopted each section irrespective of the fact that any one or more subsections, subdivisions, sentences, clauses, or phrases be declared unconstitutional, invalid or ineffective.

SECTION 4. This Ordinance shall become effective thirty (30) days after its adoption by the City Council.

SECTION 5. CEQA. The City Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to Section 15358 (the activity will not result in a direct or reasonably foreseeable indirect physical change in the environment) of the CEQA Guidelines, California Code of Regulations, Title 14, Chapter 3, because it has no potential for resulting in physical change to the environment, directly or indirectly. Moreover, the City Council finds that this Ordinance is also exempt under CEQA pursuant to Guidelines Section 15061(b)(3) (there exists no possibility that the activity will have a significant adverse effect on the environment).

SECTION 6. 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 __th day of ________ 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KRIEGER LLP

CITY ATTORNEY
1380

STATE OF CALIFORNIA )

COUNTY OF SAN BERNARDINO )

CITY OF ONTARIO )
I, SHEILA MAUTZ, City Clerk of the City of Ontario, DO HEREBY CERTIFY that foregoing Ordinance No. ____ was duly introduced at a regular meeting of the City Council of the City of Ontario held July 18, 2023 and adopted at the regular meeting held _________, 2023 by the following roll call vote, to wit:

AYES: MAYOR/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 , 2023 and that Summaries of the Ordinance were published on _________, 2023 and _________, 2023, in the Inland Valley Daily Bulletin newspaper.
__________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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Department: Planning
Prepared By: Diane Ayala
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 38
SUBJECT: A PUBLIC HEARING TO CONSIDER FILE NO. PUD22-002, A PLANNED UNIT DEVELOPMENT FOR A 0.79-ACRE PARCEL OF LAND LOCATED AT THE NORTHEAST

CORNER OF LAUREL AVENUE AND D STREET

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council introduce and waive further reading of an Ordinance approving File No. PUD22-002, the Laurel Avenue Townhomes Planned Unit Development, establishing development standards and design guidelines to facilitate a residential development located at the northeast corner of Laurel Avenue and D Street.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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 FISCAL IMPACT: There is no direct fiscal impact associated with this action. Implementation of the Planned Unit Development (PUD) would result in an increase in property taxes from future development and the one-time payment to the City for plan check fees and development impact fees.

BACKGROUND & ANALYSIS:

On April 27, 2022, Tipping Development filed a PUD application, File No. PUD22-002, in conjunction with a Tentative Tract Map, File No. PMTT22-014 (TTM 20534), and a Development Plan, File No.

PDEV22-023, to facilitate construction of 28 townhomes.

The Project site is comprised of 0.79 acres of land located within the historic downtown at the northeast corner of D Street and Laurel Avenue. The Project site is developed with a paved public parking lot. On the same block, north of the Project site, are medical offices and a surface parking lot and east of the Project site is a mixture of retail, commercial, office, and a restaurant that fronts onto Euclid Avenue. The block west of the Project site is partially developed with multiple-family residential uses and a parking lot, with the remainder of the block undeveloped. South of the Project site is developed with a vacant commercial building, paved surface parking lot, and 1382
undeveloped land. Other surrounding land uses include office, multiple-family residential and paved surface parking lots.

The Ontario Plan Policy Plan (General Plan) specifies that the Downtown Mixed-Use Area is to be implemented through the approval of an Area Plan or Planned Unit Development prior to the development of properties. In compliance with this requirement, the Applicant has submitted the Laurel Townhomes Planned Unit Development (included as Attachment A to the Ordinance), which is consistent with the vision, goals, and policies of the Policy Plan. A Planned Unit Development is comparable to a Specific Plan in that it establishes development regulations that are unique to a specific area. However, unlike a Specific Plan, a Planned Unit Development is typically intended to apply to a single development project or several interrelated development projects that function together as a single, comprehensive project.

Key components of the Laurel Avenue Townhomes Planned Unit Development include the following:

Land Use and Development Regulations — The MU-1 (Downtown Mixed Use) zoning district allows for residential development at a density of 25.1 to 75 dwelling units per acre.

Consistent with the MU-1 zoning district and TOP Downtown District Place Type, the PUD allows for development of 19 to 59 dwelling units, with a maximum building height of 38 feet (3 stories) and up to 45 feet for architectural projections.

Landscaping — The landscaping concept is centered around the use of sustainable and low water use plant materials. As an example, varying species of evergreen and deciduous trees with interest in form and foliage color may be integrated in the landscape design. Pattern and planting should accentuate the common open space areas and create a visible connection to pedestrian pathways and sidewalks. The PUD also requires the landscaping and irrigation be drought tolerant and meet the current Water Use Classifications of Landscape Species requirements.

Parking and Circulation — In order to achieve the preferred density and building intensities, the PUD allows for a combination of on-site and on-street parking to provide an adequate parking supply to meet the anticipated parking demand for the Project. All resident parking will be provided on site, while guest parking spaces will be provided on-street. The Project site is located within a mixed-use area where on-street parking is available along the Project frontage and on surrounding blocks.

Access to Mass Transit — An existing bus stop is located on the northeast corner of Euclid Avenue and D Street for Omnitrans Route 83. Additionally, located near Euclid Avenue on Holt Boulevard is Omnitrans Route 61 which has been identified as the future West Valley Connector Bus Rapid Transit (BRT).

Architectural Character — The PUD includes architectural design guidelines specific to the downtown location and residential building type and establishes the following design principles: 1) create an architectural character that reflects the various styles within the historic downtown by using similar proportions, building details and building material; 2) new buildings should appear to fit in contextually with existing historic buildings by using similar proportions, articulation, building details and building material; 3) the overall character should feel like a modern interpretation of a traditional American small town; and, 4) create compatibility between the mixed-use architecture and the residential architecture within the 1383
downtown area. The introduction of unifying elements such as similar materials and colors should be considered. However, “sameness” is discouraged.

On June 27, 2023, the Planning Commission conducted a public hearing to consider the Project and concluded the hearing on that date. After considering all public testimony on the application, the Planning Commission voted (5-0) to approve Resolution PC23-045, recommending that the City Council approve the Laurel Avenue Townhomes Planned Unit Development. At the same meeting, the Planning Commission approved the related Tentative Tract Map and Development Plan contingent upon City Council approval of the PUD.

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 Tables B-1 and B-2 (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 approved and adopted the 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. 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 City Council, therefore, finds and determines that the Project, when implemented in conjunction with the conditions of approval, will be consistent with the policies and criteria set forth within the ONT ALUCP.

ENVIRONMENTAL REVIEW: The Project is categorically exempt from the requirements of the California Environmental Quality Act (CEQA) pursuant to Section 15332 (Class 32, In-fill Development Projects) of the CEQA Guidelines, and meets all of the following conditions:

The proposed Project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations.

The proposed Project is located within the Downtown Mixed-Use land use designation of the Policy Plan (general plan) Land Use Map, and the MU-1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district. The proposed Project is consistent with all applicable Policy Plan policies, as well as with the requirements of the MU-1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district and the related proposed Planned Unit Development, which, at the Project location, intends to accommodate housing units at a density of 25 to 75 du/ac.
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The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. The Project is proposed within the established boundaries of the City of Ontario, on a project site totaling 0.79-acres of land, which is surrounded by established development on all sides and consists of a mix of multiple-family, retail, and commercial land uses.

The Project site has no value as habitat for endangered, rare, or threatened species. The site is located in an urbanized area that has been fully developed with a paved surface for vehicular parking, and as such is not suitable habitat for any endangered, rare, or threatened species. Additionally, the site has not been identified on federal or state designation map.

Approval of the Project would not result in any significant effects relating to traffic, noise, air quality, or water quality. The residential development is similar to, and of no greater impact than other allowed uses and development projects within the MU-1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district. The Project would not result in any significant impacts through implementation of required state, regional, and local development and performance standards, and as demonstrated in the Air Quality and GHG and Traffic analysis and the Preliminary Water Quality Management Plan ("PWQMP") prepared for the Project.

The site is adequately served by all required utilities and public services. All necessary wet and dry utilities are within the public street and are readily available for connection; and The application of the categorical exemption is not barred by one of the exceptions set forth in CEQA Guidelines Section 15300.2.
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ORDINANCE NO.

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PUD22-002, A PLANNED UNIT

DEVELOPMENT TO ESTABLISH DEVELOPMENT AND PERFORMANCE
STANDARDS AND DESIGN GUIDELINES FOR 0.79-ACRES OF LAND

LOCATED AT THE NORTHEAST CORNER OF LAUREL AVENUE AND D
STREET WITHIN THE LUA-1 (EUCLID AVENUE ENTERTAINMENT) OF THE MU-1 (DOWNTOWN MIXED USE) ZONING DISTRICT, AND
MAKING FINDINGS IN SUPPORT THEREOF—APNS: 1048-354-12 AND 1048-354-13
WHEREAS, Tipping Development ("Applicant") has filed an Application for the approval of a Planned Unit Development (“PUD”), File No. PUD22-002, as described in the title of this Ordinance (hereinafter referred to as "Application" or "Project"); and WHEREAS, the Application applies to 0.79 acres of land located at the northeast corner of Laurel Avenue and D Street, at 420 West D Street, within the LUA-1 (Euclid Avenue Entertainment) of the MU-1 (Downtown Mixed Use) zoning district, and is presently improved with a paved public parking lot; and WHEREAS, on the same block, north and east of the Project site are located within the MU-1 (Mixed Use Downtown) zoning district and is developed, with medical offices and a surface parking lot to the north, and a mixture of retail, commercial, office and a restaurant that fronts onto Euclid Avenue to the east. The block west of the Project Site is located within the HDR-45 (High Density Residential) zoning district and is developed with multiple-family residential and a parking lot and the remainder of the block is undeveloped. South of the Project site, within the MU-1 (Mixed Use Downtown) zoning district, is developed with a vacant commercial building, paved surface parking lot, and undeveloped land; and
WHEREAS, an existing bus stop is located on the northeast corner of Euclid Avenue and D Street for Omnitrans Route 83. Additionally, located near Euclid Avenue on Holt Boulevard is Omnitrans Route 61 which has been identified as the future West Valley Connector Bus Rapid Transit (BRT); and
WHEREAS, the MU-1 (Downtown Mixed Use) zoning district allows for residential development at a density of 25.1 to 75 dwelling units per acre. Consistent with the MU-1 zoning district and TOP Downtown District Place Type, the Laurel Avenue Townhome PUD allows for residential development of 19 to 59 dwelling units, with a maximum building height of 38 feet (3 stories) and up to 45 feet for architectural projections; and WHEREAS, the PUD requires a minimum of 1 resident parking space per bedroom and 0.20 guest parking per dwelling unit; and
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WHEREAS, in order to achieve the preferred density and building intensities, the PUD allows for a combination of on-site and on-street parking to provide an adequate parking supply to meet the anticipated parking demand for the Project. All resident parking is provided on site, while guest parking is allowed on-street; and WHEREAS, the PUD includes architectural design guidelines, specific to the downtown location and mixed-use building type, and establishes the following design principles:
(a) Create an architectural character that reflects the various styles within the historic downtown by using similar proportions, building details and building material.
(b) New buildings should appear to fit in contextually with existing historic buildings by using similar proportions, articulation, building details and building material.
(c) The overall character should feel like a modern interpretation of a traditional American small town; and
(d) Create compatibility between the mixed-use architecture and the residential architecture within the downtown area; the introduction of unifying elements such as similar materials and colors should be considered; however, “sameness” is discouraged; and
WHEREAS, the Application is a project pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) ("CEQA"); 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, 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
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WHEREAS, City of Ontario Development Code Division 2.03 (Public Hearings) prescribes the manner in which public notification shall be provided and hearing procedures to be followed, and all such notifications and procedures have been completed; and
WHEREAS, on June 27, 2023, 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. PC23-045, recommending the City Council approve the Application; and
WHEREAS, on July 18, 2023, 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 decisionmaking 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 as follows:
(1) The administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and (2) The Project is categorically exempt from environmental review pursuant to Section 15332 (Class 32, In-fill Development Projects) of the CEQA Guidelines, and meets all of the following conditions:
(a) The proposed Project is consistent with the applicable general plan designation and all applicable general plan policies as well as with applicable zoning designation and regulations. The proposed Project is located within the Downtown Mixed Use land use designation of the Policy Plan (general plan) Land Use Map, and the MU1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district. The proposed Project is consistent with all applicable Policy Plan policies, as well as with the requirements of the MU-1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district and the related proposed Laurel Avenue Townhome Planned Unit Development, which, at the Project location, intends to accommodate housing units at a density of 25 to 75 du/ac.
(b) The proposed development occurs within city limits on a project site of no more than five acres substantially surrounded by urban uses. The Project is proposed within the established boundaries of the City of Ontario, on a project site totaling 0.79- 1388
acres of land, which is surrounded by established development on all sides and consists of a mix of multiple-family, retail, and commercial land uses. (c) The Project site has no value as habitat for endangered, rare, or threatened species. The site is located in an urbanized area that has been fully developed with a paved surface for vehicular parking, and as such is not suitable habitat for any endangered, rare, or threatened species. Additionally, the site is not identified on federal or state designation map.
(d) Approval of the Project would not result in any significant effects relating to traffic, noise, air quality, or water quality. The proposed residential development is similar to, and of no greater impact than other allowed uses and development projects within the MU-1/LUA-1 (Downtown Mixed Use/Euclid Avenue Entertainment) zoning district. The Project would not result in any significant impacts through implementation of required state, regional, and local development and performance standards, and as demonstrated in the Air Quality and GHG, Traffic analysis, and Parking Studies, and the Preliminary Water Quality Management Plan ("PWQMP") prepared for the Project; and (e) The site is adequately served by all required utilities and public services. All necessary wet and dry utilities are within the public street and are readily available for connection; and
(3) The application of the categorical exemption is not barred by one of the exceptions set forth in CEQA Guidelines Section 15300.2; and (4) The determination of CEQA exemption reflects the independent judgment of the City Council.

SECTION 2: Airport Land Use Compatibility Plan ("ALUCP") Compliance.

The City Council has required certain safeguards through conditions of approval, which have been established to ensure that: [i] the purposes of the Planned Unit Development are maintained; [ii] the project will not endanger the public health, safety or general welfare; [iii] the project will not result in any significant environmental impacts; [iv] the project will be in harmony with the area in which it is located; and [v] the project will be in full conformity with the Vision, City Council Priorities and Policy Plan components of The Ontario Plan.
(3) In the case of an application affecting specific property(ies), the proposed PUD, or amendment thereto, will not adversely affect the harmonious relationship with adjacent properties and land uses. The Laurel Avenue Townhomes PUD area is situated in the heart of Ontario’s downtown and is adjacent to residential and commercial land uses and development. The surrounding development supports the objective of the Laurel Avenue Townhomes PUD further residential development. The Project does not affect the harmonious relationship with adjacent properties and land use. (4) In the case of an application affecting specific property(ies), the subject site is physically suitable, including, but not limited to, parcel size, shape, access, and availability of utilities, for the request and anticipated development. In preparing the proposed Laurel Avenue Townhomes PUD, a thorough review and analysis of the proposed Project and the subject site’s physical suitability for the Project was completed, including analysis of the project size, shape, intensity of development, building height, building setbacks, site access, site landscaping and drainage, fences and walls, vehicle circulation, pedestrian connections, availability of mass transit, necessary street dedication and easements, public right-of-way improvements, availability of utilities and other infrastructure needs, off-street parking and circulation, building orientation and streetscapes, architectural character, building materials and color, and site signage. 1390
Based upon this review and analysis, the subject site has been deemed physically suitable, including but not limited to parcel size, shape, access, and availability of utilities, for the proposed Planned Unit Development and the proposed development. (5) The proposed PUD is superior to that which could be obtained through the application of the Development Code or a specific plan. The Laurel Avenue Townhomes PUD will establish minimum building setbacks, parking and open space requirements, allow on-street parking, and establish a planting palette. These standards will facilitate the residential development of 28 townhomes, parking facilities and private and common open space areas. The proposed Laurel Avenue Townhomes PUD will allow for subsequent development that is superior to that which could be obtained through the application of the Development Code by itself.

SECTION 4: City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 3, above, the City Council hereby APPROVES the herein described Application, attached hereto as "Attachment A," and incorporated herein by this reference.

SECTION 5: 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 6: 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 7: Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 8: Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 9: 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 1391
of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ____ day of _________ 20___. _____________________________________
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 ) ss.

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 ___________, 20___ 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)
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ATTACHMENT A:

File No. PUD22-002;
Laurel Avenue Townhomes PUD
(Document follows this page)
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LAUREL AVENUE TOWNHOMES

PLANNED UNIT DEVELOPMENT

ONTARIO, CALIFORNIA
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TABLE OF CONTENTS

1. INTRODUCTION....................................................................................................4 Figure1-1: Aerial Map
Figure 1-2: Site Plan

2. OBJECTIVES............................................................................................................7 The Ontario Plan

2.1 Land Use Element Goals and Policies

2.2 Housing Element Goals and Policies

2.3 Community Design Element Goals and Policies

2.4 Center City Redevelopment Plan Objectives

2.5 Laurel at D Townhomes Objectives
Figure2-1: Downtown Land Use District Map

3. LAND USE PLAN................................................................................................. 12

3.1 Land Use Plan/Allowable Uses
Figure3-1: Land Use District Map [Exhibit LU-1 Land Use Plan of TOP]

3.2 Residential Use

3.3 Permitted Uses List

4. DEVELOPMENT REGULATIONS ..................................................................... 14

4.1 Project Density

4.2 Building Height

4.3 Building Setbacks
Table 4-1: Minimum Building Setbacks

4.4 Access

4.5 Open Space

4.6 Landscaping

4.7 Screening
Figure 4-1: Landscape Planting
Legend
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5. PARKING AND CIRCULATION........................................................................ 19

5.1 Site Accessibility

5.2 Vehicle Circulation

5.3 Pedestrian Circulation

5.4 Access to Mass Transit

5.5 Public Right of Way Improvements

5.6 Infrastructure

5.7 Parking
Table 5-1: Minimum Parking Requirements

6. DESIGN GUIDELINES......................................................................................... 22

6.1 Building Orientation and Streetscapes

6.2 Architectural Character

6.3 Architectural Details

6.4 Materials and Colors

6.5 On-Site Lighting

7. ADMINISTRATION ............................................................................................. 24

8.1 Items Not Addressed in PUD

8.2 Development Plan Applications

8.3 Administrative Exceptions
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1. INTRODUCTION
This document is intended to function as a set of planning and design principles, development regulations and performance standards to guide and govern the development of an infill area of approximately 0.79-acres of land which currently serves as a surface public parking lot within a developed area. The development is comprised of 2 adjoining properties and an alley that runs west east. The site is located at the northeast corner of N. Laurel Avenue and W. D Street. (see Figure 1.1 Project Location Map).

The project site is located within The Ontario Plan Downtown Mixed Use Land Use District and the MU-1 (Mixed Use Downtown) zoning district which requires the establishment of a Planned Unit Development (PUD) prior to development. The Planned Unit Development (PUD) is set forth in the Ontario Development Code Section 4.01.030 (Planned Unit Development (PUD) and Amendments). The Laurel at D Townhomes Planned Unit Development (PUD) will provide development standards unless otherwise defined herein, definitions and interpretations contained in the Development Code shall apply.

City staff and private developers shall rely on this PUD to determine whether precise plans for Development will be adequate and will meet the City’s land use and design objectives. 1398
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Figure1-1: Project Location
Map
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Figure1-2: Site Plan
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2. POLICY OBJECTIVES
The Ontario Plan, which includes the City’s General Plan (Policy Plan), designates the project area as part of the Downtown Mixed Use District (see Figure 2-1: Downtown Land Use District Map).

The Downtown Mixed Use District designation requires approval of a Planned Unit Development (PUD) to develop the property. Additionally, the designation specifies a residential density range of 25.1-75 units per acre and a maximum floor area ratio (FAR) of 2.0 for office and retail uses.

The Ontario Plan goals and policies furthered by this Planned Unit Development are as follows:

2.1. Land Use Element Goals and Policies
a. LU1–Balance. 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.
a. 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.
• The PUD supports the goal by providing housing in the downtown core to maximize existing infrastructure, promote walkability to services, and support transit.
b. LU2–Compatibility. Compatibility between a wide range of uses. a. LU2-2 Buffers. We require new uses to provide mitigation or buffers between existing uses where potential adverse impacts could occur. • The PUD takes into consideration the existing uses on the surrounding properties and provides privacy buffers with decorative masonry walls, landscaping and setbacks.
c. LU3 – Flexibility. Staff, regulations and processes that support and allow flexible response to conditions and circumstances in order to achieve the Vision. a. LU3-1 Development Standards. We maintain clear development standards which allow flexibility to achieve our Vision.
• The PUD implements the flexibility anticipated by city development standards.

2.2. Housing Use Element Goals and Policies
a. H1– Neighborhoods and Housing. Stable neighborhoods of quality housing, ample community services and public facilities, well-maintained infrastructure, and public safety that foster a positive sense of identity.
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a. H1-4 Historical Preservation. We support the preservation and enhancement of residential structures, properties, street designs, lot configurations, and other reminders of Ontario’s past that are considered to be local historical or cultural resources.
• The PUD will ensure the architectural design and elements complement the existing historic structures surrounding the project. b. H2 – Housing Supply and Diversity. 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. a. H2-5 Housing Design. We require architectural excellence through adherence to City design guidelines, thoughtful site planning, environmentally sustainable practices and other best practices. • The PUD will ensure the architectural enhancements complement the existing historic setting of the project location.
b. H2-6 Infill Development. We support the revitalization of neighborhoods through the construction of higher-density residential developments on underutilized residential and commercial sites.
• The PUD implements higher density residential use within the downtown core to support nearby businesses and assist in area revitalization.

2.3. Community Design Element Goals and Policies
a. CD1 – Image and Identity. A dynamic, progressive city containing distinct neighborhoods and commercial districts that foster a positive sense of identity and belonging among residents, visitors, and businesses.
a. 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. • The PUD supports the policy goal by incorporating a diverse urban housing type into the downtown core.
b. CD1-2 Growth Areas. We require development in growth areas to be distinctive and unique places within which there are cohesive design themes.
• The PUD will ensure the architectural enhancements complement the existing historic setting of the project location.
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b. CD2 – Design Quality. A high level of design quality resulting in public spaces, streetscapes, and developments that are attractive, safe, functional and distinct. a. 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.
• The PUD will ensure that architectural features and finishes which convey a particular style will be implemented to complement the existing historic setting of the project location.

2.4. Laurel Avenue Townhomes Project Objectives
This Planned Unit Development provides guidelines for development of the project area. The following objectives are intended to provide a general framework for establishing development standards to ensure proper development of the project area. a. Develop high quality housing
b. Establish appropriate relationships among new residential neighborhoods as well as with adjacent land use
c. Provide area of private and passive open space with each unit to include private balconies and roof decks.
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Figure2-1: Downtown Growth
Area Map
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3. LAND USE PLAN

3.1. Land Use Plan/Allowable Uses
The Project site is located within the Downtown Mixed Use Area Policy Plan (General Plan) land use district, and the LUA-1 (Euclid Avenue Entertainment District) land use of the MU-1 (Downtown Mixed-Use) zoning district, which implements the Downtown Mixed Use growth area. The MU-1 zoning district was established to accommodate, and intensive mixture of vertical and horizontal retail and office uses at a development intensity of up to 2.0 FAR, and residential uses at a density of 25.1 to 75 dwelling units per acre. Development projects within the MU-1 zoning district are intended to maintain a pedestrian friendly atmosphere, while at the same time enhancing the historic character of the area.

Consistent with the intent of the Downtown Mixed Use Area and the MU-1 zoning district, the project site is suitable for multiple family residential development. Exhibit 3.1 MU-1 (Mixed Use Downtown) depicts the zoning designation.

Figure 3-1:MU-1 (Mixed Use Downtown) Zoning District Map Project Area: Adjacent Uses:

Mixed Use High Density Residential
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3.2. Residential Use
The project site is envisioned to be developed with attached walk-up row town townhomes units and may have multiple buildings consisting of two to eight units each. All units will be three story in height and have private garages on ground floor with direct access to the upper living areas on the second and third floor levels. All units will have private open space provided by a balcony and the 2-bedroom units will have private roof top decks.

3.3. Permitted Uses List
The Permitted Land uses within the Laurel Avenue Townhomes Planned Unit Development (PUD) are as follows:
a. Multiple family residential dwellings
b. Temporary uses as permitted within the residential districts of the City of Ontario Development Code subject to an Administrative Permit. c. Other land use compatible with multiple family residential development projects, as determined by the Zoning Administrator.

Uses may be prohibited through rental contracts and agreements as provided by the owner and project management, unless prohibited by Federal, State or local laws.

4. DEVELOPMENT REGULATIONS

4.1. Residential Density
Residential density range shall be 25.1 to 75 dwelling units per acre. The project area consists of

0.79 acres of land which requires a minimum of 19 dwelling units and a maximum of 59 dwelling units

4.2. Building Height
No structure shall exceed 38 feet in height, except that the maximum height may be exceeded by roof mounted equipment, architectural projections, chimneys, elevator towers, parapet walls and any other rooftop structures up to 45 feet. No roof top equipment shall be visible from anywhere on the project site, public streets or adjacent properties, and shall be fully screened with appropriate architectural parapet walls or appropriate roof treatments. Roof mounted equipment shall not exceed the height of the structures and appurtenances used to screen the equipment.

Roof mounted AC equipment shall be located on roof decks and screened from views from surrounding units and properties.
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4.3. Building Setbacks
Table4-1: Minimum Building Setbacks
Minimum Street Setbacks: Distance
 Laurel Avenue 5 FT
 D Street 5 FT
 Alley 3 FT
Interior Side Setback 5 FT
Rear Setback 5 FT
Porches, Patio Covers, and Similar Architectural
Projections**
4 FT
Minimum Building Separation (garage to garage) 30
FT
Minimum Building Separation (side to side/ front to front) 10 FT/22 FT **No projection may encroach into any required easements All setbacks shall be measured from the ultimate property lines. Placement of buildings, structures, fences, walls, utility facilities, yards etc. will be based on the streets right-of-way and the property line dimensions.

4.4. Access
Project access is allowed from D Street and the easterly alley. The D Street entrance should be considered the primary access and shall be enhanced with landscape, decorative pony walls, lighting, and with signage.

4.5. Open Space
Open space shall be provided for the passive and the active recreation opportunities within the project site. Two types of open space are required, private and common open space. Open space areas are for the use of the on-site residents and their guests. Required street setback areas are not counted towards the common open space requirements. Total open space per unit including private and common areas shall be a minimum of 345 square feet.

Private Open Space
Private open space shall be provided for each residential unit in order to provide private outdoor areas which can be enjoyed for the exclusive use by the occupant of the residential unit and their guests. Private open space can include balconies, patios, and roof decks or in any combination thereof.

Private open space shall be provided for all residential units and shall have direct access from each residential unit. Residential units shall have a minimum balcony or usable patio size of 45 square feet with a 6-foot minimum dimension for one bedroom units and 60 square feet minimum for 2- 1407
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bedroom units. If roof decks are designed as part of the project, the minimum size of shall be 140 square feet. The minimum private open space per unit shall be 150 square feet over the project average.

Common Open Space
Common Open Space shall be provided to allow for both passive and active types of recreation, along with the site landscape amenities. These areas are for use by project residents and their guests. A minimum of one recreation area is required and can be provided by an outdoor lounge area covered under a wood pergola equipped with barbeque and granite counter tops, table, chairs, and sofa. Required common open space is 195 square feet per unit.

Areas not considered in common open space include (1) driveway and parking areas; (2) parking area landscaping; (3) street setback areas; and (5) other areas less than 10’ in dimension not intended for active or passive recreation.

4.6. Landscaping
A conceptual landscape plan shall be submitted with each Development Plan within the Laurel Avenue Townhomes PUD area. The plan shall specify all landscape and hardscape elements for the development plan site. Detailed Landscape and Irrigation plans shall be required prior to the issuance of building permits. The detailed plans shall show location of ground mounted utility boxes and equipment, along with the methods of screening for these items from the public right-of-way and adjacent residences where possible (see Figure 4-1: Conceptual Landscape Planting Legend).

The Landscape and irrigation plan shall be designed with water conservation in mind, utilizing “California friendly” species and drought tolerant planting materials and meet the minimum requirement of 15 percent of site coverage. The landscaping and irrigation shall comply with the Water Conservation in Landscaping Act of 2006 (AB 1881), commencing with the California Government Code Section 65591.

4.7. Screening
General Requirements
a. All roof and ground mounted mechanical equipment shall be screened pursuant to the requirements of the Ontario Development Code. b. Screening shall include plant and building materials compatible with the project design so it is well integrated and hidden within the project area. c. Building and plant materials used for screening shall be compatible with the architectural style and planting palette used on the project area. d. All ground level screening shall comply with the requirements of the Ontario Development Code Section 6.02.030 (Protection of Intersection Visibility).
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Fences, Walls, and Hedges
Fences, walls and hedges shall comply with Section 6.02.030 (Protection of Intersection visibility) of the Ontario Development Code, Engineering Department corner sight distance standards, and all other applicable city standards. Fences and wall shall be made of decorative materials that are compatible with and enhance the overall architectural character of the project. All fences, walls and hedges shall be in scale with the development, and shall be used for screening, site enhancement, and creating a safer living environment for residents and their guests. All decorative walls, monuments, and/or other similar features shall not encroach into the public street right of way. 1409
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Figure4-1: Conceptual Landscape Planting
Legend

4.8. Site Accessibility
The site shall be designed to promote safety for residents by only allowing limited vehicular and pedestrian access into and across the site. This can be achieved through building orientation and placement and use of proper fences and gates to limit access to residents and their guests. 1410
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4.9. Vehicle Circulation
The project site shall be designed to accommodate parking access to private garages to ensure accessibility. Vehicular circulation shall be designed in a manner that promotes pedestrian safety and proper vehicular access through the site.

4.10. Pedestrian Circulation
Site design must provide for safe pedestrian circulation across the project site by separating the pedestrian areas from the vehicular access. This includes, but is not limited to, accessibility from unit entries to site amenities, and perimeter sidewalk areas through use of paseos and dedicated pedestrian pathways. Fencing and gates maybe used to limit public access to resident-only areas.

Pedestrian circulation to designated dwelling units and amenity areas shall be in conformance with applicable state and local accessibility requirements.

4.11. Access to Mass Transit
Proposed Development Project within the PUD area should encourage the use of the existing bus stops by providing pedestrian connections to westbound line Omnitrans Route 83 with a bus stop located on the northwest corner of Euclid Avenue and D Street.

4.12. Public Right-of-Way Improvements
The public right-of-way shall be improved with the development of the site as required by the City.

The public right-of-way improvements required are to include, but are not limited to the following:
street pavement, curb & gutter, parkway landscaping, parkway irrigation, public sidewalk, traffic signing and striping, streetlights, bus stop, bus shelter and amenities. The extent of the required improvements shall be determined with development plan or tentative map approval.

4.13. Infrastructure
There are existing water mains in D Street. Laurel Avenue, and the alley, all fronting this project.

The alley water main will be upsized from E Street to D Street. The water main in D Street will be upsized from Laurel Avenue to Euclid Avenue. There is currently an existing sewer main in the alley between E Street and D Street. Said sewer main will be abandoned and a new sewer main will be installed in Laurel Avenue, connecting to an existing main in the alley between D Street and C Street. A new sewer main will be installed in D Street from Laurel Avenue to the point of connection required for this project. The existing sewer main traversing the project will be abandoned.

4.14. Parking Requirements
All parking space size and location requirements shall conform to the standards set forth in Section 6.03.045 (Off-Street Parking Standards) of the Ontario Development Code. 1411
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On-site Parking Requirements
The number of parking spaces provided is based on the number of bedrooms contained within each of the dwelling units proposed, and is subject to the following requirements. a. All required resident parking spaces shall be provided on-site, except fractional spaces may be provided off-site;
b. Resident parking shall be provided in enclosed garages. c. Each dwelling unit is intended for occupancy by one family only, regardless of bedroom size(s) provided in a particular unit. Parking for dwellings shall be provided on-site and guest parking may be provided on-street and offsite.

Table5-1: Minimum Parking Requirements
Use Parking Spaces Required
Multi-Family Dwellings:
• Residential units 1 parking spaces per bedroom (in a garage) • Visitor 0.2 parking spaces per unit
Off-site Parking Requirements
On-street or off-site parking may be utilized to satisfy guest parking requirements, subject to the following conditions:
a. On-street parking shall not be used for required resident parking. b. On-street parking shall only be counted along the public streets surrounding the project site, on the side of the public streets adjoining the project, excluding the alley to the east of the site, and in nearby public parking lots.
c. On-street parallel parking spaces shall be calculated by the length of unobstructed curb adjacent to the project site.
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2. DESIGN GUIDELINES
Specific to the downtown location and residential building type this PUD establishes the following design principles:
a. Create an architectural character that reflects the various styles within the historic downtown by using similar proportions, building details and building material. b. New buildings should appear to fit in contextually with existing historic buildings by using similar proportions, articulation, building details and building material. c. The overall character should feel like a modern interpretation of a traditional American small town.
d. Create compatibility between the mixed-use architecture and the residential architecture within the downtown area; the introduction of unifying elements such as similar materials and colors should be considered; however, “sameness” is discouraged.

2.1. Building Orientation and Streetscapes
Building orientation shall be designed to minimize noise impacts, aide in providing site safety, create proper accessibility to unit entries and parking garages. Design should enhance views from residential units while prioritizing privacy for all tenants. Parkways should be landscaped and buildings frontages should be orientated towards the street and public sidewalk and feature should have raised stoops and enclosed at-grade patio entries.

2.2. Architectural Character
The architectural style and design can be a “modern” interpretation of a traditional or contemporary style. The design may have pitched or flat roofs to accommodate roof decks for private outdoor space. New buildings should appear to fit in contextually with existing historic downtown by using similar proportion, articulation, building details and building material.

2.3. Architectural Details
Architectural details should complement and enhance openings, and accentuate overall design of the buildings. Detailing can be achieved through the use of projections, articulation, and fenestration to create interesting exterior elevations. Windows at prominent locations should be recessed to create shadow line. Careful detailing is appropriate at the base of buildings, along cornices, eaves, parapets or ridge tops and around entries and windows.

2.4. Materials and Color
Materials and color scheme shall be compatible with, and complementary to the overall style of the development project and surrounding area. Buildings on the site may utilize a combination of light and dark colors or color blocking to provide articulation of the building planes. Materials should be a combination of 20/30 stucco, plaster, brick or stone veneer at the first floor, metal railings, and 1413
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exterior awnings or other decorative projections. Features should appear to be an integral part of the building and not simply “tacked-on.” Introduction of new or “modern” materials such as stack stone should be avoided.

2.5. On-Site Lighting
Decorative light fixtures attached to the buildings shall be compatible with the architectural style of the buildings, shall be provided for this development. All other on-site lighting shall meet development standard of the Ontario Development Code.

2.6. Signage
Signs within the project area shall comply with the Division 8.01 (Sign Regulations) of the Ontario Development Code.

2.7. Off Site Improvements
All off-site improvements shall be installed in accordance with the City standards, and to the satisfaction of the City Engineering department.

3. ADMINISTRATION

3.1. Items Not Addressed in PUD
Any terms, requirements, or regulations not addressed within this PLANNED UNIT DEVELOPMENT document shall be governed by the City of Ontario Development Code, and City Standards.

3.2. Development Applications
Development Plan approval, pursuant to the requirements of Ontario Development Code Section

4.02.025 (Development Plans), shall be required for the physical alteration of a lot, the construction of a building, or the addition or significant alteration of an existing building. A Development Plan application shall be submitted to the Planning Department on a City application form pursuant to the requirements of Ontario Development Code Division 2.02 (Application Filing and Processing), commencing with Subsection B (Discretionary Permits and Actions) of Section 2.02.015 (Application Processing Procedures).

3.3. Administrative Exceptions
Deviation from the development standards set forth in this document may be granted up to a maximum of 10 percent by the Zoning Administrator. Any deviation that is greater than 10 percent shall require an amendment to this PUD.
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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: 39
SUBJECT: A PUBLIC HEARING TO CONSIDER THE ADOPTION OF AN ORDINANCE APPROVING A DEVELOPMENT AGREEMENT (FILE NO. PDA21-008) BETWEEN THE

CITY OF ONTARIO AND JH BRAY, LLC, AND HCW LATHROP INVESTORS, LLC

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council introduce and waive further reading of an Ordinance approving a Development Agreement (File No. PDA21-008) between the City of Ontario and JH Bray, LLC, and HCW Lathrop Investors, LLC.

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

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 Ontario Ranch
FISCAL IMPACT: The proposed Development Agreement (File No. PDA21-008) 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 West Haven Specific Plan (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.

BACKGROUND & ANALYSIS: 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, JH Bray, LLC, and HCW Lathrop Investors, LLC, (collectively the "Applicant" or "Owner"), has requested that the City enter into negotiations to create a Development Agreement (Agreement).
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The Agreement proposes to include 19.1 acres of land within the Planning Area 3 land use districts of the West Haven Specific Plan, as shown on the attached Exhibit "A." The Agreement grants the Applicant a vested right to develop Tentative Tract Map 20452 (Map), provided the Owner complies with the terms and conditions of the Specific Plan and related EIR.

The Map, as shown on the attached Exhibit "B," is located approximately 1,300 south of the intersection of Riverside Drive and Haven Avenue and proposes to subdivide 19.1 acres into 111 numbered lots and 33 lettered lots for residential purposes, public/private streets, landscape 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 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 June 27, 2023, the Planning Commission found the Agreement to be consistent with State law, The Ontario Plan, and the City's Development Agreement policies. As a result, the Planning Commission adopted Resolution No. PC23-050 with a 5 to 0 vote, recommending City Council approval of the Agreement.

ENVIRONMENTAL REVIEW: An Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095), which was certified by the City Council on July 7, 2007, was prepared. This application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of Project approval and are incorporated herein by this reference.
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Exhibit A— WEST HAVEN SPECIFIC PLAN LAND USE MAP AMENDMENT (File No. PSPA21-004)
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Exhibit B— TENTATIVE TRACT MAP 20452
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ORDINANCE NO. ________

AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF ONTARIO, CALIFORNIA, APPROVING FILE NO. PDA21-008, A DEVELOPMENT

AGREEMENT BETWEEN THE CITY OF ONTARIO AND JB BRAY LLC

AND HCW LATHROP INVESTORS LLC, TO ESTABLISH THE TERMS
AND CONDITIONS ASSOCIATED WITH TENTATIVE TRACT MAP 20452 (FILE NO. PMTT21-017), A 19.1 ACRE PROPERTY LOCATED
APPROXIMATELY 1,300 SOUTH OF THE INTERSECTION OF

RIVERSIDE DRIVE AND HAVEN AVENUE, WITHIN THE PLANNING
AREA 3 LAND USE DISTRICT OF THE WEST HAVEN SPECIFIC PLAN (FILE NO. PSP03-006), AND MAKING FINDINGS IN SUPPORT
THEREOF—APN: 0218-151-10.

WHEREAS, JB Bray LLC and HCW Lathrop Investors LLC ("Applicant") has filed an Application for the approval of a Development Agreement, File No. PDA21-008, as described in the title of this Resolution (hereinafter referred to as "Application" or "Project"); and
WHEREAS, the Application applies to 19.1 acres of land located approximately 1,300 south of Riverside Drive and Haven Avenue, within Planning Area 3 land use district of the West Haven Specific Plan (File No. PSP03-006); and WHEREAS, the Applicant has submitted applications for a Specific Plan Amendment (File No. PSPA21-004) and Tentative Tract Map No. 20452 (File No.

PMTT21-017) for condominium purposes, to facilitate the potential development of 111 numbered lots and 33 lettered lots for residential purposes, public/private streets, landscape neighborhood edges, and common open space purposes; and WHEREAS, an Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095), which was certified by the City Council on July 7, 2007, was prepared. 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; and
WHEREAS, Ontario Development Code Table 2.02-1 (Review Matrix) grants the Planning Commission the responsibility and authority to review and make recommendations to the City Council on the subject Application; and WHEREAS, the Project has been reviewed for consistency with the Housing Element of the Policy Plan component of The Ontario Plan, as State Housing Element law (as prescribed in Government Code Sections 65580 through 65589.8) requires that development projects must be consistent with the Housing Element, if upon consideration of all its aspects, it is found to further the purposes, principals, goals, and policies of the Housing Element; and
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WHEREAS, the Project is located within the Airport Influence Area of Ontario International Airport, which encompasses lands within parts of San Bernardino, Riverside, and Los Angeles Counties, and is subject to, and must be consistent with, the policies and criteria set forth in the Ontario International Airport Land Use Compatibility Plan (hereinafter referred to as "ALUCP"), which applies only to jurisdictions within San Bernardino County, and addresses the noise, safety, airspace protection, and overflight impacts of current and future airport activity; and
WHEREAS, on June 27, 2023, 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. PC23-050 recommending the City Council approve the Application; and
WHEREAS, on July 18, 2023, 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 decisionmaking 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 as follows:
(1) The environmental impacts of this project were previously reviewed in an Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095), for which a Certified EIR was adopted the City Council on July 7, 2007, was prepared. This application 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
(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.
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SECTION 2. Subsequent or Supplemental Environmental Review Not Required. Based on the information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Certified EIR is not required for the Project, as the Project:
(1) Does not constitute substantial changes to the Certified EIR that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of previously identified significant effects; and
(2) Does not constitute substantial changes with respect to the circumstances under which the Certified EIR was prepared, that will require major revisions to the Certified EIR due to the involvement of new significant environmental effects or a substantial increase in the severity of the previously identified significant effects; and (3) Does not contain new information of substantial importance that was not known and could not have been known with the exercise of reasonable diligence at the time the Certified EIR was certified/adopted, that shows any of the following:
(a) The project will have one or more significant effects not discussed in the Certified EIR; or
(b) Significant effects previously examined will be substantially more severe than shown in the Certified EIR; or
(c) Mitigation measures or alternatives previously found not to be feasible would in fact be feasible and would substantially reduce one or more significant effects of the Project, but the City declined to adopt such measures; or (d) Mitigation measures or alternatives considerably different from those analyzed in the Certified EIR would substantially reduce one or more significant effects on the environment, but which the City declined to adopt.

SECTION 3. Housing Element Compliance. Pursuant to the requirements of California Government Code Chapter 3, Article 10.6, commencing with Section 65580, as the recommending authority for the Project, the Planning Commission finds that based on the facts and information contained in the Application and supporting documentation, at the time of Project implementation, the project is consistent with the Housing Element of the Policy Plan (General Plan) component of The Ontario Plan. The project site is not one of the properties in the Housing Element Sites contained in Tables B-1 and B-2 (Housing Element Sites Inventory) of the Housing Element Technical Report.

SECTION 4. 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.
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(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 decisionmaking 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:
(1) The Development Agreement applies to approximately 19.1 acres of land located approximately 1,300 feet south of the intersection of Riverside Drive and Haven Avenue, within Planning Area 3 land use district of the West Haven Specific Plan (File No. PSP03-006); and
(2) The Development Agreement establishes parameters for the development of land within the West 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 Countryside Specific Plan; and
(3) The Development Agreement grants the Applicant a vested right to develop Tentative Parcel Map 20452 (File No. PMTT21-017) as long as the Applicant complies with the terms and conditions of the West Haven Specific Plan and EIR. Tentative Tract Map 20452 is located approximately 1,300 feet south of the intersection of Riverside Drive and Haven Avenue, within Planning Area 3 land use district of the West Haven Specific Plan, and proposes to subdivide 19.1 acres of land into 111 numbered lots and 33 lettered lots for residential purposes, public/private streets, landscape neighborhood edges, and common open space purposes; and
(4) The Development Agreement has been prepared in conformance with the goals and policies of The Ontario Plan Policy Plan (General Plan); and (5) 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
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(6) This Development Agreement will promote the goals and objectives of the Land Use Element of the Policy Plan; and
(7) 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. An Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095), which was certified by the City Council on July 7, 2007, was prepared; and
(8) This Application introduces no new significant environmental impacts. All previously adopted mitigation measures are a condition of project approval and are incorporated herein by this reference.

SECTION 6. City Council Action. Based upon the findings and conclusions set forth in Sections 1 through 5, above, the City Council hereby APPROVES the herein described Development Agreement (File No. PDA21-008), attached hereto as "Attachment A," and incorporated herein by this reference. Approval of this Development Agreement is contingent upon City Council approving the following:
(1) West Haven Specific Plan Amendment (File No. PSPA21-004); and (2) EIR Addendum to the West Haven Specific Plan EIR (File No. PSP03-006).

If the City Council does not approve the West Haven Specific Plan Amendment (File No.

PSPA21-004) and EIR Addendum to the West Haven Specific Plan EIR (File No.

PSP03-006), this Ordinance shall become null and void and of no further force and effect.

SECTION 7. City Manager Administrative Authority. The City Council acknowledges that refinements and further development of the Ontario Ranch development area may demonstrate that changes are appropriate with respect to the details and performance of the parties under the Development Agreement. The City Council desires to retain a certain degree of flexibility with respect to the details of the Ontario Ranch developments, and with respect to those items covered in general terms under the Development Agreement. If and when the City Manager (or designee) and the Developer mutually find that changes, adjustments, or clarifications are appropriate to further the intended purposes of the Development Agreement, and such are not materially inconsistent with the Development Agreement, they may, unless otherwise required by law, effectuate such changes, adjustments, or clarifications by written amendment to this Agreement, or through one or more memoranda which are mutually approved by the City Manager on behalf of the City and by the Developer, and, after execution, shall be attached to the Development Agreement and become a part thereof. Unless otherwise required by law, no such changes, adjustments, or clarifications shall require prior notice or hearing before the City Council. The City Manager, with the approval of the City Attorney, shall have the authority but not the obligation to execute amendments, memoranda or other documents, and may take any action necessary to implement the Development Agreement.
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SECTION 8. 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 9. 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 10. Severability. If any section, sentence, clause or phrase of this Ordinance or the application thereof to any entity, person or circumstance is held for any reason to be invalid or unconstitutional, such invalidity or unconstitutionality shall not affect other provisions or applications of this Ordinance which can be given effect without the invalid provision or application, and to this end the provisions of this Ordinance are severable. The People of the City of Ontario hereby declare that they would have adopted this Ordinance and each section, sentence, clause or phrase thereof, irrespective of the fact that any one or more section, subsections, sentences, clauses or phrases be declared invalid or unconstitutional.

SECTION 11. Effective Date. This Ordinance shall become effective 30 days following its adoption.

SECTION 12. Publication and Posting. The Mayor shall sign this Ordinance and the City Clerk shall certify as to the adoption and shall cause a summary thereof to be published at least once, in a newspaper of general circulation in the City of Ontario, California within 15 days following the adoption. The City Clerk shall post a certified copy of this ordinance, including the vote for and against the same, in the Office of the City Clerk, in accordance with Government Code Section 36933.

PASSED, APPROVED, AND ADOPTED this ____ day of _________ 20___. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
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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 July 18, 2023 and adopted at the regular meeting held ___________, 20___ 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)
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ATTACHMENT A:

FILE NO. PDA21-008

RECORDING REQUESTED BY AND
WHEN RECORDED MAIL TO:

CITY OF ONTARIO

CITY CLERK / RECORDS MANAGEMENT
303 EAST “B” STREET
ONTARIO, CA 91764-4196
Exempt from Fees Per Gov. Code § 6103
______________________________________________________________________ Space above this line for Recorder’s Use Only
FILE NO. PDA21-008

DEVELOPMENT AGREEMENT
By and Between
City of Ontario
a California municipal corporation
and
JH Bray LLC
a Delaware limited liability company
HCW Lathrop Investors LLC
a Delaware limited liability company
_________________________, 2023
San Bernardino County, California
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DEVELOPMENT AGREEMENT NO. PDA21-008
This Development Agreement (hereinafter “Agreement”) is entered into effective as of the ____ day of ____________, 2023 by and among the City of Ontario, a California municipal corporation (hereinafter “CITY”), and JH Bray LLC, a Delaware limited liability company, and HCW Lathrop Investors LLC, a Delaware limited liability company (collectively 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 West Haven Specific Plan (State Clearinghouse No. 2004071095 (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 West 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
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WHEREAS, this Agreement will eliminate uncertainty in planning and provide for the orderly development of the Property, ensure progressive installation of necessary 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 1430
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Easterly Portion of the New Model Colony entered into between the CITY and NMC Builders as of the 21st day of August 2012.

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 1431
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permits; building inspections; building permits; filing and processing applications and petitions filed with the local agency formation commission or conducting preliminary proceedings or proceedings under the Cortese-Knox-Hertzberg Local Government Reorganization Act of 2000, Division 3 (commencing with Section 56000) of Title 5 of the Government Code; the processing of maps under the provisions of the Subdivision Map Act, Division 2 (commencing with Section 66410) of Title 7 of the Government Code; or planning services under the authority of Chapter 3 (commencing with Section 65100) of Division 1 of Title 7 of the Government Code, fees and charges as described in Sections 51287, 56383, 57004, 65104, 65456, 65863.7, 65909.5, 66013, 66014, and 66451.2 of the Government Code, Sections 17951, 19132.3, and 19852 of the Health and Safety Code, Section 41901 of the Public Resources Code, and Section 21671.5 of the Public Utilities Code, as such codes may be amended or 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 August 16, 2022.

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. 20452 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 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; 1432
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(b) taxes and assessments;
(c) the control and abatement of nuisances;
(d) the granting of encroachment permits and the conveyance of similar rights and interests that provide for the use of or the entry upon public property; (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 “Net MDD” means net maximum daily water demand.

1.1.17 “NMC Builders” means the consortium of investors and developers responsible for the construction of infrastructure within the New Model Colony incorporated as NMC Builders, LLC.

1.1.18 “Model Units” means a maximum of fifteen (15) 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.

1.1.19 “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.

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

1.1.21 “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.

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

1.1.23 “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.

1.1.24 “Specific Plan” means that certain specific plan adopted by the City Council, and entitled, “West Haven Specific Plan.”

1.1.25 "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 1433
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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.

1.1.26 “Subsequent Development Approvals” means all Development Approvals required subsequent to the Effective Date in connection with development of the Property.

1.1.27 “Subsequent Land Use Regulations” means any Land Use Regulations adopted and effective after the Effective Date of this Agreement.

1.1.28 “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 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 1434
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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:
(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. 1435
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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.

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 1436
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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:
(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 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.

2.5.2 Minor Modification. Upon the written application of OWNER, minor modifications and changes to the Development Plan including modifications to building design or footprint (not affecting minimum setbacks), park and landscape area design may be approved by the Director of the Planning Department without the need to amend this Development Agreement. Other changes in the Development Plan shall be processed pursuant to the City Zoning Ordinance. It is also contemplated by City and OWNER that OWNER may, from time to time, seek amendments to one or more of the 1437
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Development Approvals. Any such amendments are contemplated by City and OWNER as being within the scope of this Agreement as long as they are consistent with the Land Use Regulations and shall, upon approval by City, continue to constitute the Development Approvals as referenced herein. The parties agree that any such modifications or amendments shall not constitute an amendment to this Agreement nor require an amendment to this Agreement.

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.
(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:
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If to CITY:

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

Derek Barbour
Richland Communities
3161 Michelson, Suite 425
Irvine, CA 92612
[email protected]
with a copy to:

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

Richland Legal Dept.
c/o John Troutman
3161 Michelson, Suite 425
Irvine, CA 92612
[email protected]
(c) Either party may, by notice given at any time, require subsequent notices to be given to another person or entity, whether a party or an officer or representative of a party, or to a different address, or both. Notices given before actual receipt of notice of change shall not be invalidated by the change.

3. DEVELOPMENT OF THE PROPERTY.

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

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

3.3 Timing of Development. The parties acknowledge that OWNER cannot at this time predict when or the rate at which 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 1439
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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 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 construction of a maximum number of fifteen (15) Model Units, private common recreation facilities and sales facilities. CITY may issue a maximum of fifteen (15) 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 1440
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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.

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;
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(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 with this Agreement 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 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 1442
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this purpose, for such price and on such terms as may be available to similarly situated customers in the CITY.

3.7.1 OWNER agrees that development of the Project shall require the construction of storm drain improvements as described in Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the storm drain improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.2 OWNER agrees that development of the Project shall require the construction of street improvements and traffic signal(s), 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 and traffic signal(s), as described in Exhibit E and depicted in Exhibit F.

3.7.3 OWNER agrees that development of the Property shall require the construction of water and recycled water improvements 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 as described in Exhibit E and depicted in Exhibit F. OWNER also agrees that recycled water shall be available and utilized by OWNER for all construction-related water uses including prior to, and during, any grading of the Property.

3.7.4 OWNER agrees that development of the Property shall require the construction of sewer improvements, as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the sewer improvements, 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 as described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that no building permits shall be issued by CITY for Production Units prior to completion of the fiber optic communication improvements, as described in Exhibit E and depicted in Exhibit F.

3.7.6 OWNER agrees that development of the Property shall require the construction of the Southern California Edison (SCE) trail described in the attached Exhibit E and depicted in Exhibit F. OWNER agrees that the occupancy of the last Production Unit with the property will not be released prior to completion of the trail improvements, as described in Exhibit E and depicted in Exhibit F. OWNER shall make their best reasonable efforts to receive right-ofway approvals or licenses from SCE and/or other agencies to complete the SCE trail improvements. OWNER shall provide periodic updates to CITY every ninety (90) days, or upon written request from the CITY.
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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 NonConstruction 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 NonConstruction 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 use reasonable good faith efforts to complete the actions described within lesser time periods, to the extent that it is reasonably able to do so, consistent with the legal constraints imposed upon CITY.

3.8.2 Owner’s Option to Terminate Proceedings. CITY shall provide written notice to OWNER no later than fifteen (15) 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. 1444
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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.

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 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 1445
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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 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.

4.2.4 Parkland Required and Provided. Tract Map No. 20452 includes ninety-five (95) single-family detached units and ninety-six (96) single-family attached units requiring 1.37 acres of improved park per Section 4.2.3 above. Tract Map No. 1446
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20452 provides 1.79 acres of improved park satisfying the CITY’s park standards.

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. 20452.

4.3.1.1 SCE Trail. Per the Conditions of Approval for Tract Map No. 20452, OWNER is responsible for design and construction of a multipurpose trail within the Southern California Edison (SCE) Corridor, from the northern boundary of the of the Tract Map to the southern boundary, prior to completion of the last Production Unit within the Property. OWNER shall make their best reasonable efforts to receive right-of-way approvals or licenses from SCE and/or other agencies to complete the SCE trail improvements. OWNER shall provide periodic updates to CITY every ninety (90) days, or upon written request from the CITY.

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 1447
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OWNER agree that the Fee Credit Agreement between CITY and OWNER shall comply with CITY’s adopted policies applicable to such agreements.

4.3.4 Construction of Public Infrastructure by Third Parties. CITY and OWNER acknowledge the Improvements described in Exhibit E and depicted in Exhibit F are required for the development of the Property, surrounding properties within the Ontario Ranch and the other property owners are also obligated to construct the Improvements or portions thereof. As such, CITY agrees that OWNER's obligation to construct the Improvements may be satisfied by third party owners pursuant to separate written agreements between OWNER and said third party undertaking the construction of the Improvements. Nothing in this Agreement shall be construed to prohibit the coordination of the construction of the Improvements between private parties, including the allocation of costs for the construction of the Improvements. Notwithstanding anything to the contrary herein, any applicable DIF Credits may be transferred and assigned from one (1) party to another with respect to the construction of the Improvements and such transfer or assignment shall not require the conveyance of any real property.

Additionally, OWNER and CITY agree that a portion of the improvements described in Exhibit E and depicted in Exhibit F, may be constructed by others. If such improvements are constructed by others and are completed and accepted by CITY prior to OWNER's request to CITY of the required grading, building or other required permits for OWNER to initiate construction of structures for the Property, then OWNER shall not be required to construct or pay for those Improvements constructed and completed by others and accepted by CITY.

4.4 Affordable Housing Requirement.

4.4.1 Affordable Housing- Number of Units. OWNER shall provide a minimum number of affordable housing units, equivalent to 10% of the 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 4.4.2.1 through 4.4.2.5. 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 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 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, 1448
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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 nonstatutory 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 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 1449
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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 4.4.1 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 InLieu 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 ($3.12) and the Two Dollars Seventy Four 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.

For rental units, base rents shall be established by the City and rental 1450
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adjustments required by the City shall be performed on an annual basis. In addition, the Affordable Housing Agreement shall impose maximum occupancy limits of 2 occupants per bedroom plus 1 additional occupant per dwelling unit, and a requirement for the owner or tenant to properly maintain each dwelling unit.

4.4.2.5 Transfer of Affordable Project. No transfer of title to any affordable housing project shall occur without the prior written consent of the City. In the event OWNER transfers title to any affordable housing project required to be constructed pursuant to this Agreement to a non-profit entity, or other entity, that receives an exemption from ad valorem real property taxes, the City shall be required to assure payment of an annual in lieu fee to the City on July 1 of each year equal to one-tenth of 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.

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) schools, seven (7) are to be elementary (TK-6) grade schools and one (1) 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.
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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 Public Services Funding Fee Amount. OWNER shall pay a Public Services Funding fee in the total amount of Two Thousand Four Hundred Ninety dollars and Seventy Eight Cents ($2,490.78) 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 Two Hundred Forty Five Dollars and Thirty Nine Cents ($1,245.39) 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 30 days following the effective date of the Development Agreement.

If the First installment amount is not paid for all residential dwelling units within the Project (based on the Maximum Development Density, or the number of units described on “B Maps” if approved) by January 1, 2024, 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 Two Hundred Forty Five dollars and thirty nine cents ($1,245.39) 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 1st of each year, beginning on January 1, 2024. 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 1452
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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 Five Cents ($.75) 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 1st of each year, beginning on January 1, 2024. 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 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 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.
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4.7.4 Effectiveness of Agreement. CITY acknowledges that the OWNER is a current “Member” of NMC Builders LLC. OWNER’s assignees shall not be required to become a member of NMC. 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.

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

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

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 4.9, or challenges (whether administratively or through legal proceedings) the imposition of such conditions, OWNER shall be deemed in default of this Agreement pursuant to Section 8.4 hereof, thereby entitling the City to any and all remedies available to it, including, without limitation, the right of the City to withhold OWNER’s Project1454 -28-
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 MultipleFamily Dwelling Unit, $1,048.96 per Gated Apartment Community Dwelling Unit, and $0.27 per square foot for Non-Residential buildings. The special tax amount shall be subject to change based on the services tax rate that is in effect at the time such CFD is formed. 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 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 1455
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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.

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.

6.1.4 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.
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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.

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

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

6.3 Hearing on Modification or Termination. At the time and place set for the hearing on modification or termination, the OWNER shall be given an opportunity to be heard. The OWNER shall be required to demonstrate good faith compliance with the terms and conditions of this Agreement. The burden of proof on this issue shall be on the OWNER. If the City Council finds, based upon substantial evidence in 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 1457
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City Council that (1) this Agreement remains in effect and (2) OWNER is not in default.

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

7. [RESERVED]

8. DEFAULT AND REMEDIES.

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

In general, each of the parties hereto may pursue any remedy at law or equity available for the breach of any provision of this Agreement, except that CITY shall not be liable in 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.

8.2 Specific Performance. The parties acknowledge that money damages and remedies at law generally are inadequate and specific performance and other nonmonetary 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 1458
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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 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 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.

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 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 1459
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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 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.

11. MISCELLANEOUS PROVISIONS.
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11.3 Severability. If any term, provision, covenant or condition of this Agreement shall be determined invalid, void or unenforceable, the remainder of this Agreement shall not be affected thereby to the extent such 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.

11.5 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 1462
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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.

11.11 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, pandemics, 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.

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.

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

11.19 Agent for Service of Process. In the event OWNER is not a resident of the State of California or it is an association, partnership or joint venture without a member, partner or joint venturer resident of the State of California, or it is a foreign corporation, then in any such event, OWNER shall file with the Planning Director, upon its execution of this Agreement, a designation of a natural person residing in the State of California, giving his or her name, residence and business addresses, as its agent for the purpose of service of process in any court action arising out of or based upon this Agreement, and the delivery to such agent of a copy of any process in any such action shall constitute valid service upon OWNER. If for any reason service of such process upon such agent is not feasible, then in such event OWNER may be personally served with such process out of this County and such service shall constitute valid service upon OWNER. OWNER is amenable to the process so served, submits to the jurisdiction of 1464
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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.

11.22.1 CITY makes no representations concerning prevailing wages in compliance with California Labor Code Section 1770 et seq.

11.22.2 OWNER acknowledges and agrees that it shall be independently responsible for reviewing the applicable laws and regulations with respect to the payment of prevailing wages and complying therewith. OWNER shall bear all risks of payment or non-payment of prevailing wages under California law and/or the implementation of Labor Code Section 1781, as the same may be amended from time to time, and/or any other similar law.

11.22.4 OWNER, ON BEHALF OF ITSELF, ITS SUCCESSORS, AND

NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES

NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF

EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE

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

SIGNATURE PAGE
TO DEVELOPMENT AGREEMENT NO. PDA21-008
“OWNER”
JH Bray LLC, a Delaware limited liability
company
By:_______________________________
Name: John Troutman
Title: Vice President
Date: ___________________
HCW Lathrop Investors LLC, a Delaware
limited liability company
By:_______________________________
Name: John Troutman
Title: Vice President
Date: ___________________
APPROVED AS TO FORM:

BEST BEST KRIEGER, LLP
City Attorney
"CITY"

CITY OF ONTARIO
By:

Scott Ochoa
City Manager
Date: ___________________
ATTEST:

City Clerk, Ontario
1467
41 ACKNOWLEDGEMENT

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.

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:

THE NORTH HALF OF THE SOUTHEAST QUARTER OF THE NORTHEAST QUARTER OF SECTION 11, TOWNSHIP 2 SOUTH, RANGE 7 WEST, SAN

BERNARDINO BASE AND MERIDIAN, IN THE COUNTY OF SAN
BERNARDINO, STATE OF CALIFORNIA, AS PER GOVERNMENT SURVEY.

SAVING AND EXCEPTING THEREFROM ALL STATE AND COUNTY
HIGHWAYS.

APN: 0218-151-10-0-000
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44 EXHIBIT "B"

TO DEVELOPMENT AGREEMENT
Map showing Property and its location
1471
45 EXHIBIT "C"

TO DEVELOPMENT AGREEMENT
Existing Development Approvals
On December 18, 2006, the Planning Commission:
a) Issued Resolution No. PC06-166, recommending City Council adopt and certify the West Haven Specific Plan Environmental Impact Report; and b) Issued Resolution No. PC06-167, recommending City Council approval of the West Haven Specific Plan (File No. PSP03-006).

On January 16, 2007, the City Council:
a) Adopted and certified the West Haven Specific Plan Environmental Impact Report and issued Resolution No. 2007-010; and
b) Adopted Ordinance No. 2870 approving the West Haven Specific Plan. 1472
46 EXHIBIT "D"

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

1. West Haven Specific Plan, Ordinance No. 2870

2. West Have Environmental Impact Report, Resolution No. 2007-010

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

Street (ST) Improvements
a. ST improvements along Haven Avenue from the northern tract boundary to the southern tract boundary.
b. Full signalized intersection improvements at the intersection of Street “E” and Haven Avenue.

Fiber Optic (FO) Improvements
a. FO improvements along Haven Avenue from the northern tract boundary to the southern tract boundary.

Trail Improvements (within SCE ROW)
a. Trial improvements from the northern boundary of the of the Tract Map to the southern boundary, pursuant to Section 3.7.6.
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48 EXHIBIT “F”

TO DEVELOPMENT AGREEMENT
Depiction of Required Infrastructure Improvements
(SEE ATTACHED EXHIBITS)
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49 1476
50 1477
51 1478
52 EXHIBIT “G”

TO DEVELOPMENT AGREEMENT
Form of Plume Disclosure Letter
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Department: Planning
Prepared By: Thomas Grahn
Staff Member Presenting:

Scott Murphy, Executive Director Community
Development
Reviewed By: Kimberly Ruddins, Rudy
Zeledon, Scott Murphy
Approved By:

Submitted To: Council/OHA
Approved: _______________________________
Continued To: ___________________________
Denied: __________________________________
Item No: 40
SUBJECT: A PUBLIC HEARING TO CONSIDER AN AMENDMENT (FILE NO. PSPA21-004) TO

THE WEST HAVEN SPECIFIC PLAN, TO BRING THE SPECIFIC PLAN INTO

COMPLIANCE WITH THE ONTARIO PLAN POLICY PLAN (GENERAL PLAN) LAND

USE PLAN FOR PROPERTY BOUNDED BY RIVERSIDE DRIVE TO THE NORTH,

SCHAEFER AVENUE TO THE SOUTH, HAVEN AVENUE TO THE EAST, AND TURNER

AVENUE TO THE WEST

CITY OF ONTARIO
Agenda Report
July 18, 2023
SECTION:

PUBLIC HEARINGS
RECOMMENDATION: That the City Council consider and adopt the following:

A. A Resolution approving an Addendum to the West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095); and
B. A Resolution approving an Amendment to the West Haven Specific Plan (File No. PSPA21-004) bringing the Specific Plan into conformance with the Policy Plan (General Plan).

THE FOLLOWING COUNCIL GOALS ARE BEING ACHIEVED:

Invest in the Growth and Evolution of the City's Economy Focus Resources in Ontario's Commercial and Residential Neighborhoods Invest in the City's Infrastructure (Water, Streets, Sewers, Parks, Storm Drains and Public Facilities)
Ensure the Development of a Well Planned, Balanced, and Self-Sustaining Community in Ontario Ranch
FISCAL IMPACT: Adoption of the West Haven Specific Plan Amendment would result in both short and long-term fiscal impacts to the City. Short-term impacts include infrastructure improvements to serve future residential developments. The cost of these improvements is included in the Nexus Study and Development Impact Fees previously adopted by the City Council. The developer will be required to install improvements or pay the Development Impact Fees associated with the various improvements. Long-term fiscal impacts include the ongoing operations and maintenance services (police, fire, maintenance, etc.) necessary to serve the future developments. To address this impact, 1480
the developer will be required to form and/or join a Community Facilities District to cover the additional public service costs. No Original Model Colony dollars will be used to fund the future Ontario Ranch development.

BACKGROUND & ANALYSIS: On January 16, 2007, the City Council certified the West Haven Specific Plan Environmental Impact Report (SCH 200471095). The related West Haven Specific Plan (File No.

PSP03-006) was approved by City Council on July 17, 2007. The Specific Plan established the land use designations, development standards, and design guidelines for approximately 202 acres of land bounded by Riverside Drive to the north, Schafer Avenue to the south, Haven Avenue to the east, and the SCE Utility corridor and Turner Avenue to the west. The Specific Plan included the potential development of 753 residential dwelling units and 87,000 square feet of commercial/office land uses.

On August 16, 2022, the City Council certified The Ontario Plan 2050 Update Supplemental Environmental Impact Report (SEIR) in conjunction with The Ontario Plan 2050 (TOP 2050) (File No.

PGPA20-002) General Plan update.

The TOP 2050 and SEIR, included the following land use changes within the West Haven Specific Plan boundary: 1) changing 28.5 acres of land (Planning Area 1) from Low Density Residential (LDR) (2.1 to 5.0 du/ac) to Medium Density Residential (MDR)( 11.1 to 25.0 du/ac); and 2) changing 19.1 acres of land (Planning Area 3) from Low Density Residential (LDR)(2.1 to 5.0 du/ac) to Low Medium Density Residential (LMDR)(5.1 to 11.0 du/ac).

Specific Plan Amendment - The proposed Specific Plan Amendment (SPA) will bring the Specific Plan into compliance with The Ontario Plan Policy Plan (General Plan) land use plan. As part of TOP 2050 Update, the land use designation for the Project site was changed from Low Density Residential (2.1 to 5.0 du/ac) to Low Medium Density Residential (5.1 to 11 du/ac) and Medium Density Residential (11.1 to 25.0 du/ac). The SPA proposes to amend the West Haven Specific Plan Planning Areas 1 and 3 to increase the overall residential density from 4.43 to 7.52 dwelling units per net acre with the overall dwelling unit count increasing from 753 to 1,142 dwelling units.

Currently, Planning Area 1 regulations allow the development of 173 dwelling units and Planning Area 3 regulations allow for the development of 92 dwelling units.

The SPA proposes the following changes:

Revise Planning Area 1 to include:

Change land use to Medium Density Residential (MDR) consistent with The Ontario Plan 2050 (TOP) Policy Plan (General Plan) Land Use Map;
Increase the number of allowed units from 173 dwelling units to 451 dwelling units; Increase the density range from 6.07 du/ac to 15.08 du/ac; and Revise the allowed land uses from Detached Courtyard and 4,000 square foot lots to Detached Courtyard and Attached Homes.

Revise Planning Area 3 to include:

Change land use to Low-Medium Density Residential (LMDR) consistent with TOP 2050 Policy Plan Land Use Map;
1481
Increase the number of allowed units from 92 dwelling units to 203 dwelling units; Increase the density range from 4.57 du/ac to 10.1 du/ac; Revise the allowed land uses from 4,950 square foot lots to Detached and Attached Homes; and
Decrease the Planning Area 3 acreage from 20.12 acres to 19.17 acres.

Various changes to the Specific Plan land use map (Planning Areas) development standards, exhibits, and text modification, to reflect the proposed land use changes.

On June 27, 2023, the Planning Commission conducted a public hearing on Tentative Tract Map No. 20452 and the SPA. After receiving all public testimony on the application, the Planning Commission approved Tentative Tract Map No. 20452 and recommended that the City Council approve the SPA.

AIRPORT LAND USE COMPATIBILITY PLAN COMPLIANCE: The California State Aeronautics Act (Public Utilities Code Section 21670 et seq.) requires that an Airport Land Use Compatibility Plan be prepared for all public use airports in the State; and requires that local land use plans and individual development proposals must be consistent with the policies set forth in the adopted Airport Land Use Compatibility Plan. On April 19, 2011, the City Council 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 Ontario International Airport Land Use Compatibility Plan compatibility factors, including [1] Safety Criteria (Ontario International Airport Land Use Compatibility Plan Table 2-2) and Safety Zones (Ontario International Airport Land Use Compatibility Plan Map 2-2), [2] Noise Criteria (Ontario International Airport Land Use Compatibility Plan Table 2-3) and Noise Impact Zones (Ontario International Airport Land Use Compatibility Plan Map 2-3), [3] Airspace protection Zones (Ontario International Airport Land Use Compatibility Plan Map 2-4), and [4] Overflight Notification Zones (Ontario International Airport Land Use Compatibility Plan Map 2-5). As a result, the City Council 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 Ontario International Airport Land Use Compatibility Plan.

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 Tables B-1 and B-2 (Housing Element Sites Inventory) of the Housing Element Technical Report.

ENVIRONMENTAL REVIEW: The Project analyzed under the Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 200471095, certified by the City Council on January 16, 2007) (Certified Environmental Impact Report) consists of amending the West Haven Specific Plan, Planning Areas 1 and 3, to increase the overall residential density from 4.43 to 7.52 dwelling units per net acre with the overall dwelling unit count increasing from 753 to 1,142 dwelling units, and subdividing Planning Area 3 for condominium purposes and includes 111 1482
numbered lots, 32 lettered lots, onsite and offsite improvements such as private streets, private drives, sidewalks, landscaping, utilities infrastructure, and utilities connections.

The Application is a project pursuant to the California Environmental Quality Act (Public Resources Code Section 21000 et seq.) and an Addendum has been prepared to determine possible environmental impacts. Although the proposed Project could have a significant effect on the environment, because all potentially significant effects have been analyzed adequately in an earlier Certified Environmental Impact Report and have been avoided or mitigated pursuant to that earlier Certified Environmental Impact Report, including revisions or mitigation measures that are imposed on the proposed Project, nothing further is required. The Project will introduce no new significant environmental impacts beyond those previously analyzed in the Certified Environmental Impact Report, and all mitigation measures previously adopted by the Environmental Impact Report, are a condition of project approval and are incorporated in the Addendum. 1483
RESOLUTION NO. _______

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

CALIFORNIA, APPROVING AN ADDENDUM TO THE WEST HAVEN

SPECIFIC PLAN ENVIRONMENTAL IMPACT REPORT, PURSUANT TO

THE REQUIREMENTS OF THE CALIFORNIA ENVIRONMENTAL
QUALITY ACT, AS AMENDED, FOR FILE NO. PSPA21-004.

WHEREAS, LEWIS MANAGEMENT CORP. (hereinafter referred to as "Applicant") has filed Applications for the approval of a Specific Plan Amendment, File No. PSPA21-004, which amends the West Haven Specific Plan to increase the number of allowable dwellings in Planning Area 1 and Planning Area 3 to include detached and attached dwelling units, and update associated text and exhibits, to facilitate development of single- and multiple-family residential units located south of Riverside Drive, north of Schafer Avenue, west of Haven Avenue, and east of Turner Avenue in the City of Ontario, California (hereinafter referred to as "Application" or "Project"); and WHEREAS, the West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2004071095) was certified on January 16, 2007 (hereinafter referred to as "Certified EIR"), in which development and use of the Project site was discussed; and WHEREAS, the Planning Director of the City of Ontario has prepared and approved for attachment to the certified Environmental Impact Report, an Addendum to the Certified EIR (hereinafter referred to as "EIR Addendum") in accordance with the requirements of the California Environmental Quality Act of 1970, together with State and local guidelines implementing said Act, all as amended to date (collectively referred to as "CEQA"); and
WHEREAS, the EIR Addendum concluded that implementation of the Project could result in a number of significant effects on the environment that were previously analyzed in the Certified EIR, and that the Certified EIR identified mitigation measures that would reduce each of those significant effects to a less-than-significant level; and WHEREAS, pursuant to State CEQA Guidelines Section 15164(a), a lead agency shall prepare an addendum to a previously certified EIR if some changes or additions are necessary to a project, but the preparation of a subsequent or supplemental EIR is not required; and
WHEREAS, the City determined that none of the conditions requiring preparation of a subsequent or supplemental EIR would occur from the Project, and that preparation of an Addendum to the Certified EIR was appropriate; and WHEREAS, on June 27, 2023, the Planning Commission of the City of Ontario conducted a hearing to consider the Addendum and concluded said hearing on that date, voting to issue Resolution No. PC23-048 recommending that the City Council conclude that none of the conditions requiring preparation of a subsequent or supplemental EIR have occurred, and further recommending that the City Council take actions on the Project in compliance with CEQA and state and local guidelines implementing CEQA; and
1484
WHEREAS, the City of Ontario is the lead agency on the Project, and the City Council is the decision-making authority for the requested approval to construct and otherwise undertake the Project; and
WHEREAS, the City Council has reviewed and considered the EIR Addendum for the Project, has concluded that none of the conditions requiring preparation of a subsequent or supplemental EIR have occurred, and intends to take actions on the Project in compliance with CEQA and state and local guidelines implementing CEQA; and
WHEREAS, the EIR Addendum for the Project are on file in the Planning Department, located at 303 East B Street, Ontario, CA 91764, are available for inspection by any interested person at that location and are, by this reference, incorporated into this Resolution as if fully set forth herein; and
WHEREAS, all legal prerequisites to the adoption of this Resolution have occurred.

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

SECTION 1. Environmental Determination and Findings. As the decisionmaking authority 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 as follows:
(1) The environmental impacts of this project were reviewed in conjunction with an Addendum to West Haven Specific Plan Environmental Impact Report (State Clearinghouse No. 2004071095; certified by the Ontario City Council on January 16, 2007, in conjunction with File No. PSP03-006); and
(2) The EIR Addendum and administrative record have been completed in compliance with CEQA, the State CEQA Guidelines, and the City of Ontario Local CEQA Guidelines; and
(3) The City's "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. This Application introduces no new significant environmental impacts; and (4) All previously adopted mitigation measures shall be a condition of project approval, as they are applicable to the Project, and are incorporated herein by this reference; and
(5) The EIR Addendum contains a complete and accurate reporting of the environmental impacts associated with the Project, and reflects the independent judgment of the City Council; and
1485
(6) There is no substantial evidence in the administrative record supporting a fair argument that the project may result in significant environmental impacts.

SECTION 2. Additional Environmental Review Not Required. Based on the Addendum, all related information presented to the City Council, and the specific findings set forth in Section 1, above, the City Council finds that the preparation of a subsequent or supplemental Environmental Impact Report 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. City Council Action. Based upon the findings and conclusions set forth in Sections 1 and 2, above, the City Council hereby finds that based upon the entire record of proceedings before it, and all information received, that there is no substantial evidence that the Project will constitute substantial changes to the Certified EIR, and does hereby approve the EIR Addendum, attached hereto as "Attachment A," and incorporated herein by this reference.

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.
1486
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.

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

PASSED, APPROVED, AND ADOPTED this 18th day of July 2023. _____________________________________
PAUL S. LEON, MAYOR
ATTEST:
_________________________________

SHEILA MAUTZ, CITY CLERK
APPROVED AS TO FORM:
_______________________________

BEST BEST & KREIGER LLP

CITY ATTORNEY
1487

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. ____ was duly passed and adopted by the City Council of the City of Ontario at their regular meeting held July 18, 2023, 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. ____ duly passed and adopted by the Ontario City Council at their regular meeting held July 18, 2023. _________________________________

SHEILA MAUTZ, CITY CLERK
(SEAL)
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ATTACHMENT A:

Addendum to West Haven Specific Plan
Environmental Impact Report
(Addendum to follow this page)
1489
California Environmental Quality Act
Environmental Checklist Form
Project Title/File No(s).: West Haven Specific Plan Amendment No. 1 – PSPA21-004 Lead Agency: City of Ontario, 303 East “B” Street, Ontario, California 91764, (909) 395-2036 Contact Person: Thomas Grahn, Senior Planner
Project Sponsor: West Haven 27, LLC
Project Location and Setting: The 184.6-gross-acre West Haven Specific Plan area is located in southwestern San Bernardino County, within the Ontario Ranch area of the City of Ontario. The City of Ontario is located approximately 40 miles from downtown Los Angeles, 20 miles from downtown San Bernardino, and 30 miles from Orange County (refer to Figure 1, Regional Location Map, and Figure 2, Vicinity Map). The 47.69-gross-acre Project site includes Planning Areas (PAs) 1 and 3 of the West Haven Specific Plan. As illustrated on the aerial photograph presented on Figure 3, the Project site is located south of Riverside Drive, west of Haven Avenue, and north of Chino Avenue.

The Project site was previously occupied by agricultural uses, including dairy farm and nursery uses; however, these uses have been removed and the site is vacant. The areas surrounding the Project site to the north and south are developed with single-family residential uses; the area to the south is PA 4 of the West Haven Specific Plan area. The area to the west includes a Southern California Edison (SCE) easement and single-family residential uses, and the area to the east includes vacant land previously occupied by a dairy farm.

General Plan Designation: Low Medium Density Residential (5.1-11 du/ac), Medium Density Residential (11.1 to 25.0 du/ac), Open Space-Recreation
Zoning: SP – West Haven Specific Plan (PSP03-006)
Description of Project: The proposed Project involves amendments to the West Haven Specific Plan (File No. PSPA21-004) to: (1) designate PA 1 with Medium Density Residential land uses consistent with The Ontario Plan 2050 (TOP) Policy Plan (General Plan) Land Use Map, increase the number of allowed units within PA 1 from 173 dwelling units to 451 dwelling units (an increase of 278 dwelling units), and change the allowed use from Detached Courtyard and 4,000 square foot (sf) lots to Detached Courtyard and Attached Homes; (2) designate PA 3 with Low Medium Density Residential land uses consistent with the Policy Plan Land Use Map, increase the number of allowed units within PA 3 from 92 dwelling units to 203 dwelling units (an increase of 111 dwelling units), change the allowed use from 4,950 square foot lots to Detached and Attached Homes, and decrease the PA 3 acreage from 20.12 acres to 19.17 acres. The proposed development would be implemented in compliance with Development and Subdivision Regulations contained in the West Haven Specific Plan as proposed to be amended, and Ontario Development Code. With the increase in units, the number of allowed units in the West Haven Specific Plan area would increase from 753 to 1,142 dwelling units (an increase of 389 dwelling units). The overall density in the Specific Plan area would increase from 4.96 dwelling units per gross acre to 7.52 dwelling units per gross acre for the residential PAs.

The Project would also include amendments to the West Haven Specific Plan to modify Development Standards and Design Guidelines, text, tables and graphics, as needed, to reflect the changes above. This includes the addition of new housing typologies to the Development Standards for the attached residential uses, and revisions to statistical information (e.g., acreage and density). The modified Specific Plan Land Use Summary Table and Land Use Plan, and new housing typologies are provided in Attachment A of this document.1
1 The proposed West Haven Specific Plan Amendment also includes revisions to reflect previous approvals by the City including, but not limited to, the transfer of 4 units from PA 4 to PA 7 and removal of the 5-acre park from previous PA

6. These previously approved amendments are not evaluated in this Addendum.

City of Ontario
Planning Department
303 East “B” Street
Ontario, California
Phone: (909) 395-2036
Fax: (909) 395-2420
1490

SAN BERNARDINO
COUNTY

LOS ANGELES
COUNTY

RIVERSIDE

COUNTY ORANGE
COUNTY
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%&'(10
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·|þ}210
·|þ}241
·|þ}57
Ontario
Fontana
Corona
Riverside
Chino
Chino Hills
Jurupa Valley
Pomona
Rialto
Anaheim
Upland Rancho
Cucamonga
Norco
Eastvale
Yorba Linda
Claremont
San
Dimas
La Verne
Diamond
Bar
Orange
Montclair
Glendora
Brea
Villa Park
^_
#
Project Site
Source(s): ESRI, RCTLMA (2022), SANBAG (2022)
0 1 2 4
Miles
Figure 1
Regional Location Map

Page 2 of 65 ends

Ontario City CouncilJuly 18, 2023

Ontario City Council
July 18, 2023